McCullough v. McCullough

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/08/2018 01:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
McCULLOUGH v. McCULLOUGH
Cite as 299 Neb. 719Wallace R. McCullough, appellant, v.
Michelle A. McCullough, appellee.
___ N.W.2d ___
Filed April 26, 2018. Nos. S-16-1086, S-16-1187, S-17-037.
1. Contempt: Appeal and Error. In a civil contempt proceeding where
a party seeks remedial relief for an alleged violation of a court order,
an appellate court employs a three-part standard of review in which (1)
the trial court’s resolution of issues of law is reviewed de novo, (2) the
trial court’s factual findings are reviewed for clear error, and (3) the trial
court’s determinations of whether a party is in contempt and of the sanc-
tion to be imposed are reviewed for abuse of discretion.
2. Attorney Fees: Appeal and Error. A trial court’s decision award-
ing or denying attorney fees will be upheld on appeal absent an abuse
of discretion.
3. Judgments: Words and Phrases. A judicial abuse of discretion
requires that the reasons or rulings of the trial court be clearly unten-
able insofar as they unfairly deprive a litigant of a substantial right and
a just result.
4. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
5. Judges: Recusal: Appeal and Error. A motion requesting a judge to
recuse himself or herself on the ground of bias or prejudice is addressed
to the discretion of the judge, and an order overruling such a motion will
be affirmed on appeal unless the record establishes bias or prejudice as a
matter of law.
6. Contempt: Final Orders. An order of contempt in a postjudgment pro-
ceeding to enforce a previous final judgment is properly classified as a
final order.
7. Contempt. Civil contempt proceedings are instituted to preserve and
enforce the rights of private parties to a suit when a party fails to com-
ply with a court order made for the benefit of the opposing party.
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Cite as 299 Neb. 7198. Courts: Jurisdiction: Divorce: Contempt. A court’s continuing juris-
diction over a dissolution decree includes the power to provide equitable
relief in a contempt proceeding.
9. Contempt: Courts: Equity. Contempt proceedings may both compel
obedience to orders and administer the remedies to which the court has
found the parties to be entitled. Where a situation exists that is con-
trary to the principles of equity and which can be redressed within the
scope of judicial action, a court of equity will devise a remedy to meet
the situation.
10. Contempt: Words and Phrases. Civil contempt requires willful disobe-
dience as an essential element. “Willful” means the violation was com-
mitted intentionally, with knowledge that the act violated the court order.
If it is impossible to comply with the order of the court, the failure to
comply is not willful.
11. Words and Phrases: Appeal and Error. Willfulness is a factual deter-
mination to be reviewed for clear error.
12. Contempt: Proof: Evidence: Presumptions. Outside of statutory pro-
cedures imposing a different standard or an evidentiary presumption, all
elements of contempt must be proved by the complainant by clear and
convincing evidence and without any presumptions.
13. Contempt: Costs: Attorney Fees. Costs, including reasonable attorney
fees, can be awarded in a contempt proceeding.
14. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
Appeals from the District Court for Sarpy County: Daniel E.
Bryan, Jr., Judge. Judgments in Nos. S-16-1086 and S-17-037
affirmed. Appeal in No. S-16-1187 dismissed.
William D. Gilner for appellant.
Edith T. Peebles and Tosha Rae D. Heavican, of Brodkey,
Peebles, Belmont & Line, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
In these three consolidated appeals, Wallace R. McCullough
appeals orders entered by the district court for Sarpy County
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McCULLOUGH v. McCULLOUGH
Cite as 299 Neb. 719in the proceeding for the dissolution of his marriage to
Michelle A. McCullough. Wallace appeals, inter alia, an order
of contempt for failing to make childcare and property divi-
sion equalization payments, an order of contempt for failing to
pay child support, and an order setting the amount of a super-
sedeas bond. We dismiss the appeal of the order regarding the
amount of the supersedeas bond, and we affirm the district
court’s orders in the two other appeals.
STATEMENT OF FACTS
On March 22, 2010, the district court for Sarpy County
entered a decree dissolving Wallace and Michelle’s marriage.
In the decree of dissolution, the district court ordered, inter
alia, that legal and physical custody of the couple’s children
be awarded to Michelle, subject to Wallace’s parenting time;
that Wallace pay Michelle child support of $3,005 per month;
that Wallace pay a share of childcare expenses incurred by
Michelle; and that Wallace pay Michelle $552,124.89 to
equalize the property division, payable at a rate of $50,000
per year plus interest until paid in full.
On June 12, 2012, Michelle filed a complaint for modifi-
cation of the decree of dissolution. She requested, inter alia,
that Wallace’s parenting time be supervised and that proceeds
from the sale of certain property be reassigned to her. On July
30, Wallace filed an answer and a counterclaim in which he
requested, inter alia, that he be awarded sole custody of the
children. On August 6, Michelle filed an answer to Wallace’s
counterclaim in which she requested the counterclaim be
dismissed. On August 7, Wallace filed an amended answer
and counterclaim in which he further requested, inter alia,
a change in his child support obligation based on a change
in income and that he be given credit for amounts totaling
$268,400 that he alleged should be treated as having been paid
toward the property settlement. On January 21, 2014, Wallace
filed another amended answer and counterclaim in which he
made additional allegations and requests.
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McCULLOUGH v. McCULLOUGH
Cite as 299 Neb. 719On June 8, 2016, Michelle filed a verified complaint for
contempt in which she alleged that Wallace had failed to pay
child support, childcare expenses, and property equalization
payments required under the decree of dissolution. The district
court entered an order on June 13 for Wallace to show cause
why he should not be held in contempt based on Michelle’s
complaint. Wallace entered a denial, and the court set a final
hearing on the matter.
After the hearing on Michelle’s complaint for contempt,
the district court entered an order on September 30, 2016. In
the order, the court stated that Wallace had asked to continue
the contempt proceedings with regard to child support pay-
ments on the basis that the amended counterclaim he had filed
on January 21, 2014, in which he sought a reduction of his
child support obligation, was still pending. The court noted
that Wallace had not prosecuted that counterclaim; neverthe-
less, the court granted a continuance of the portion of the
contempt proceeding that pertained to child support. The court
scheduled a trial for December 8, 2016, on Wallace’s amended
answer and counterclaim, as well as on Michelle’s June 12,
2012, complaint for modification. The court stated that it
would consider the child support portion of the complaint for
contempt at the December 8 trial. The court further stated that
on February 21, 2014, it had ordered Wallace to undergo an
evaluation in connection with his request for modification of
the children’s custody; the court ordered Wallace to submit the
completed evaluation by October 17, 2016.
In addition to the foregoing, the September 30, 2016, order
also stated that the court had heard testimony regarding the
remaining portions of Michelle’s contempt allegations against
Wallace. The court then found Wallace to be in willful and
contumacious violation of the decree of dissolution in two
respects: (1) He had failed to pay required childcare expenses
totaling $5,031.23, and (2) he had failed to pay property equal-
ization installments, with interest, totaling $317,314.99. The
court ordered Wallace to pay Michelle’s attorney fees totaling
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Cite as 299 Neb. 719$3,317.51. The court stated that the sums Wallace owed to
Michelle totaled $325,663.73. The court set up a purge plan
pursuant to which it ordered Wallace to pay $750 per month
to the clerk of the court commencing October 1 and continu-
ing on the first day of each month until the amount was paid
in full. The court ordered that if Wallace failed to make a
payment on or before the first day of the month, he would
be jailed for 15 days but would be released if he remedied
the deficit.
Wallace filed a motion for a new hearing or reconsideration
of the September 30, 2016, order. On November 4, the district
court denied the motion.
On November 17, 2016, Wallace filed a notice of appeal
in which he stated his intent to appeal the September 30
and November 4 orders. That appeal is docketed as case No.
S-16-1086.
On November 18, 2016, the district court held a hear-
ing to consider a motion by Michelle to dismiss part of
Wallace’s counterclaim for modification of the decree of dis-
solution. Michelle argued that the counterclaim should be dis-
missed because Wallace had failed to comply with the court’s
February 21, 2014, order to undergo an evaluation and that
he had failed to submit such evaluation by October 17, 2016,
as required in the court’s September 30 order. At the hearing,
Wallace admitted the evaluation had not been completed, but
he asserted that he had been confused as to the date by which
the evaluation was to be submitted and that he had an evalu-
ation scheduled for an unspecified date in December. Wallace
further argued that because he had filed a notice of appeal on
November 17 with regard to the court’s September 30 and
November 4 orders, all proceedings in this matter, including
those issues set for trial on December 8, should be stayed
pending the appeal.
On November 28, 2016, the court entered an order rul-
ing on matters addressed at the November 18 hearing. The
court stated that the September 30 order “dealt solely with
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299 Nebraska R eports
McCULLOUGH v. McCULLOUGH
Cite as 299 Neb. 719the limited issues of contempt dealing with child care and
property equalization.” The court stated that although issues
regarding contempt related to child support were to be heard
on December 8, it had “separated the . . . issues on contempt.”
The court assumed that the September 30 order was a final
order for purposes of appeal, and it determined that “pending
applications for modifications [of the decree of dissolution]
or motions to dismiss portions of such applications are stayed
pending the appeal.” However, the court determined that it
retained jurisdiction to enforce the September 30 contempt
order, because Wallace had not asked the court to set a super-
sedeas bond, and it further determined that Michelle’s “pending
contempt action for enforcement of this Court’s child support
order is not stayed without posting a supersedeas bond.”
On November 29, 2016, Wallace filed a motion to set
a supersedeas bond pursuant to Neb. Rev. Stat. § 25-1916(Reissue 2016). On November 30, the district court entered
an order with respect to the supersedeas bond. At a hear-
ing on the supersedeas bond, Wallace’s attorney had argued
that at the earlier September 14 contempt hearing, Wallace
had testified that “he didn’t have any assets or income at the
present time” and that his net worth was less than $10,000.
Wallace requested that “the bond amount be set at 50 percent
of that amount.” In its November 30 order, the court spe-
cifically rejected Wallace’s request that the bond amount be
set based on 50 percent of “personal assets which total less
than $10,000.00.” The court instead set a bond of $45,000
and stated that it had determined such amount based on the
monthly purge payment Wallace was required to make pursu-
ant to the September 30 contempt order, the monthly child
support he was required to pay pursuant to the decree of dis-
solution, and the amount of time the court estimated the appeal
of the September 30 order would take. The court stated that
the hearing set for December 8 would “take place as sched-
uled unless or until [Wallace] posts bond with the Clerk of the
District Court of Sarpy County.”
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McCULLOUGH v. McCULLOUGH
Cite as 299 Neb. 719On December 5, 2016, Wallace filed a notice of appeal in
which he stated his intent to appeal the November 28 and
November 30 orders. That appeal is docketed as case No.
S-16-1187.
On December 8, 2016, the court held a hearing and entered
an order ruling on Michelle’s complaint for contempt with
regard to child support. The court found Wallace to be in will-
ful contempt of the portion of the decree of dissolution that
required him to pay child support of $3,005 per month. The
court ordered Wallace to be subject to a purge plan pursuant to
which he would pay Michelle $2,000 of back child support per
month, in addition to the $3,005 per month child support he
was already required to pay, beginning January 1, 2017, and
continuing the first of each month until back child support was
paid in full. The court ordered that if Wallace failed to pay the
required child support and the additional back child support
on the first of each month, he would be “incarcerated no more
than thirty (30) days each month.” The court entered a sepa-
rate money judgment against Wallace and in favor of Michelle
for attorney fees and costs of $3,131.75.
On December 30, 2016, Wallace filed a pleading in which
he made three motions. The pleading included the following
motions: (1) a motion for the judge to recuse himself, (2) a
motion to set aside or reconsider the December 8 order of
contempt, and (3) a “motion for judgment” in his favor on his
amended counterclaim filed January 21, 2014.
With regard to the motion for recusal, Wallace alleged
that on October 7, 2016, the judge had signed an arrest war-
rant against Wallace on the basis that on October 1, Wallace
had failed to make the purge payment required under the
September 30 order. Wallace alleged that the judge issued the
warrant despite knowing that Wallace had attempted to make
the payment on September 30 but that his check had been
returned by the clerk of the district court because the clerk
had not yet received the purge order. The record indicates
that Michelle filed an application for the arrest warrant on
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McCULLOUGH v. McCULLOUGH
Cite as 299 Neb. 719October 6, that the arrest warrant was signed by the judge on
October 7 but was not filed until October 11, that the court
signed an order recalling the arrest warrant on October 12, and
that the recall order was filed on October 13.
With regard to the “motion for judgment” on his counter-
claim, Wallace alleged that although the court on November
30, 2016, had granted Michele leave to file an answer to his
January 21, 2014, counterclaim out of time, she had not filed
an answer as of December 30, 2016, and that therefore, he was
entitled to judgment in his favor on his counterclaim.
On January 6, 2017, the court entered an order in which
it denied Wallace’s motion to recuse and his motion to set
aside or reconsider the December 8, 2016, order. The court
also stated that it was “without jurisdiction to hear [Wallace’s]
Motion for Judgment on the Pleadings with respect to the
September 30, 2016 Order” and that Wallace’s “Motion for
Judgment on the Pleadings is denied with respect to the
December 8, 2016 Order.”
The court in the January 6, 2017, order did not explicitly
refer to Wallace’s January 21, 2014, amended counterclaim
for modification, upon which Wallace sought judgment on the
pleadings in his December 30, 2016, motion. We note in this
regard that as discussed above, in the November 28 order, the
court had stated that “pending applications for modifications
[of the decree of dissolution] or motions to dismiss portions
of such applications are stayed pending the appeal” of the
September 30 contempt order.
On January 9, 2017, Wallace filed a notice of appeal in
which he stated his intent to appeal the December 8, 2016,
and January 6, 2017, orders. That appeal is docketed as case
No. S-17-037.
We moved Wallace’s three appeals to our docket and con-
solidated them. To summarize, Wallace’s three appeals are:
(1) case No. S-16-1086, in which he appeals the September
30, 2016, order finding him in contempt for failing to pay
childcare and property equalization payments required under
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McCULLOUGH v. McCULLOUGH
Cite as 299 Neb. 719the decree of dissolution, and the November 4 order over-
ruling his motion for a new hearing or a reconsideration of
the September 30 order; (2) case No. S-16-1187, in which
he appeals the November 28 order finding, inter alia, that
enforcement of the September 30 order was not stayed pend-
ing appeal, and the November 30 order setting a supersedeas
bond of $45,000; and (3) case No. S-17-037, in which he
appeals the December 8 order finding him in contempt for
failing to pay child support required under the decree of disso-
lution, and the January 6, 2017, order overruling his motion to
recuse and his motion to set aside or reconsider the December
8, 2016, order.
ASSIGNMENTS OF ERROR
In case No. S-16-1086, Wallace claims that the district court
abused its discretion when it found him in contempt for failing
to pay childcare and property equalization payments required
under the decree of dissolution. He argues that he could not be
in contempt, because (1) his complaint for modification of the
decree was still pending and (2) the judgment went dormant
when Michelle failed to execute on it and the judgment had not
been revived. He also claims that because he should not have
been found to be in contempt, the court abused its discretion
when it awarded attorney fees to Michelle.
In case No. S-16-1187, Wallace claims that the district
court abused its discretion when it set a supersedeas bond of
$45,000. He argues that under § 25-1916, the amount of the
supersedeas bond is limited to 50 percent of his net worth,
and he asserts his net worth to be less than $10,000. Michelle
asserts in her reply that an order setting the amount of a super-
sedeas bond is not an appealable order.
In case No. S-17-037, Wallace claims that the district court
abused its discretion when it (1) found him in contempt of the
child support provisions of the decree of dissolution when his
complaint for modification of child support was still pend-
ing, (2) overruled his motion for recusal, (3) overruled his
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McCULLOUGH v. McCULLOUGH
Cite as 299 Neb. 719“motion for judgment” on his counterclaim for modification
of the decree of dissolution, and (4) awarded attorney fees
to Michelle.
STANDARDS OF REVIEW
[1] In a civil contempt proceeding where a party seeks reme-
dial relief for an alleged violation of a court order, an appellate
court employs a three-part standard of review in which (1) the
trial court’s resolution of issues of law is reviewed de novo, (2)
the trial court’s factual findings are reviewed for clear error,
and (3) the trial court’s determinations of whether a party is in
contempt and of the sanction to be imposed are reviewed for
abuse of discretion. State on behalf of Mariah B. & Renee B. v.
Kyle B., 298 Neb. 759, 906 N.W.2d 17 (2018).
[2,3] A trial court’s decision awarding or denying attorney
fees will be upheld on appeal absent an abuse of discre-
tion. In re Estate of Forgey, 298 Neb. 865, 906 N.W.2d 618(2018). A judicial abuse of discretion requires that the rea-
sons or rulings of the trial court be clearly untenable insofar
as they unfairly deprive a litigant of a substantial right and a
just result. Id.[4] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law. Ginger Cove Common Area Co. v. Wiekhorst, 296 Neb.
416, 893 N.W.2d 467 (2017).
[5] A motion requesting a judge to recuse himself or herself
on the ground of bias or prejudice is addressed to the discre-
tion of the judge, and an order overruling such a motion will
be affirmed on appeal unless the record establishes bias or
prejudice as a matter of law. Kalkowski v. Nebraska Nat. Trails
Museum Found., 290 Neb. 798, 862 N.W.2d 294 (2015).
ANALYSIS
Relevant Nebraska Jurisprudence
Regarding Contempt.
[6] We note first that in Smeal Fire Apparatus Co. v.
Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010), disapproved
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McCULLOUGH v. McCULLOUGH
Cite as 299 Neb. 719on other grounds, Hossaini v. Vaelizadeh, 283 Neb. 369, 808
N.W.2d 867 (2012), we held that under Nebraska law, an order
of contempt in a postjudgment proceeding to enforce a previ-
ous final judgment is properly classified as a final order. In the
terms of Neb. Rev. Stat. § 25-1902 (Reissue 2016), a contempt
order affects a substantial right and is made upon a summary
application in an action after judgment. By the reasoning in
Smeal Fire Apparatus Co. v. Kreikemeier, both the contempt
order in case No. S-16-1086, which order relates to the prop-
erty equalization and childcare expense portions of the decree
of dissolution, and the contempt order in case No. S-17-037,
which order relates to the child support portions of the decree
of dissolution, are final, appealable orders.
[7-9] Civil contempt proceedings are instituted to preserve
and enforce the rights of private parties to a suit when a party
fails to comply with a court order made for the benefit of the
opposing party. Martin v. Martin, 294 Neb. 106, 881 N.W.2d
174 (2016). A court’s continuing jurisdiction over a dissolution
decree includes the power to provide equitable relief in a con-
tempt proceeding. Id. Contempt proceedings may both compel
obedience to orders and administer the remedies to which the
court has found the parties to be entitled. Id. Where a situation
exists that is contrary to the principles of equity and which
can be redressed within the scope of judicial action, a court of
equity will devise a remedy to meet the situation. Id.[10-12] Civil contempt requires willful disobedience as an
essential element. State on behalf of Mariah B. & Renee B. v.
Kyle B., 298 Neb. 759, 906 N.W.2d 17 (2018). “Willful” means
the violation was committed intentionally, with knowledge that
the act violated the court order. Id. If it is impossible to comply
with the order of the court, the failure to comply is not will-
ful. Id. Willfulness is a factual determination to be reviewed
for clear error. Id. Outside of statutory procedures imposing a
different standard or an evidentiary presumption, all elements
of contempt must be proved by the complainant by clear and
convincing evidence and without any presumptions. Id.- 730 -
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McCULLOUGH v. McCULLOUGH
Cite as 299 Neb. 719Case No. S-16-1086: District Court Did Not Err
When It Found Wallace to Be in Contempt of the
Decree With Regard to Equalization Payments
and Childcare Expenses or When It Awarded
Attorney Fees to Michelle.
In case No. S-16-1086, Wallace claims that the district court
abused its discretion when it found him in contempt for failing
to pay childcare and property equalization payments required
under the decree of dissolution and when it awarded attor-
ney fees to Michelle. We find no merit to these assignments
of error.
In case No. S-16-1086, Wallace contends that the district
court could not have found him to be in willful contempt. We
note first that Wallace does not dispute that he failed to make
the payments required under the decree of dissolution entered
in 2010. Instead, he basically argues that such failure cannot
form the basis for a finding of willful contempt, because he
had reason to think he was not required to make the payments.
He first notes that the court had not yet ruled on his counter-
claim for modification of the decree, and he argues that if the
court were to rule in his favor and modify the decree, he might
no longer owe the sums he has not paid. As an alternative argu-
ment, Wallace claims that Michelle let the money judgments
from the decree of dissolution go dormant and that therefore,
he was not obligated to pay the judgments. We find both argu-
ments to be without merit.
Wallace claims first that he could not be found to be in
willful contempt while his counterclaim for modification of
the decree of dissolution was still pending. He argues that if
his counterclaim were successful, he would no longer owe the
amounts required under the decree of dissolution, and he rea-
sons that he was not required to pay those amounts until the
counterclaim was decided by the court. Wallace points to no
authority to the effect that an application for modification of
a decree of dissolution suspends the judgment and associated
payments. To the contrary, we have ruled that under the proper
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Cite as 299 Neb. 719circumstances, modification of a decree of dissolution may
be made retroactive and a credit or judgment may be given
to compensate for overpayments made during the pendency
of a modification action. See Johnson v. Johnson, 290 Neb.
838, 862 N.W.2d 740 (2015). However, unless and until a
modification order is made by the court, the decree of dissolu-
tion remains a valid judgment and payment obligations under
the decree remain in force. We conclude that the pendency
of Wallace’s counterclaim for modification did not prevent
the district court from finding that Wallace was in willful
contempt of the obligations imposed on him by the decree
of dissolution.
Wallace alternatively claims that he could not be found to be
in willful contempt with respect to the equalization payment,
because Michelle failed to execute on the judgment within 5
years as required by Neb. Rev. Stat. § 25-1515 (Reissue 2016),
and that therefore, the judgment had gone dormant. Wallace
recognizes that specific exceptions exist for alimony and child
support, and therefore, he does not make this same argument
in connection with his appeal in case No. S-17-037 discussed
below. However, he argues that there is no exception from the
operation of § 25-1515 for the property equalization payments
that were ordered in the decree of dissolution.
The district court rejected Wallace’s assertion that Michelle
failed to execute on the property equalization judgment, and
the record supports that determination. The decree of dissolu-
tion was filed on March 22, 2010, and the record indicates
that after entry of the decree, Michelle made attempts to col-
lect sums due her under the decree. Such efforts included a
contempt proceeding in 2011 and a motion Michelle filed in
2012 which resulted in an order filed by the court on August
15, 2012, which, inter alia, required proceeds from a sale of
property to be applied to equalization payments. Michelle filed
the present contempt proceeding on June 8, 2016, so there does
not appear to have been a 5-year period in which Michelle
failed to attempt to execute on the judgment. We therefore
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Cite as 299 Neb. 719conclude that the district court did not err when it rejected
Wallace’s argument that he could not be found in willful con-
tempt because Michelle purportedly allowed the judgment to
go dormant.
[13] Finally, regarding the award of attorney fees in case
No. S-16-1086, we note first that costs, including reason-
able attorney fees, can be awarded in a contempt proceeding.
Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782
N.W.2d 848 (2010), disapproved on other grounds, Hossaini
v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012). Wallace
does not assert that Michelle failed to prove her fees or that
the amount was unreasonable. Instead, his sole argument is
that attorney fees should not have been awarded, because he
should not have been found to be in contempt of the decree of
dissolution. Because we have concluded above that the court
did not err when it found Wallace to be in contempt, we fur-
ther conclude that the court did not abuse its discretion when it
awarded attorney fees to Michelle.
Having rejected Wallace’s assignments of error in case No.
S-16-1086, we affirm the September 30, 2016, order finding
Wallace to be in contempt and awarding attorney fees. We
also affirm the November 4 order overruling Wallace’s motion
for reconsideration.
Case No. S-16-1187: Order Setting Amount of
Supersedeas Bond Was Not Separately Appealable,
and Issues Regarding Supersedeas Bond Are
Moot Following Disposition of Appeal of
Order Sought to Be Stayed.
In case No. S-16-1187, Wallace claims that the district
court abused its discretion when it set a supersedeas bond of
$45,000. He argues that under § 25-1916, the amount of the
supersedeas bond is limited to 50 percent of his net worth,
and he asserts his net worth to be less than $10,000. We
determine that the order setting the amount of the supersedeas
bond was not an appealable order in its own right and that,
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Cite as 299 Neb. 719although issues regarding the supersedeas bond might have
been considered in connection with the appeal of the under-
lying contempt order in case No. S-16-1086, such issues are
moot because of our resolution of that appeal.
[14] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. Ginger Cove Common
Area Co. v. Wiekhorst, 296 Neb. 416, 893 N.W.2d 467 (2017).
Michelle asserts that the court’s November 30, 2016, order
setting the amount of the supersedeas bond is not an appeal-
able order. Michelle relies on Green v. Morse, 57 Neb. 798, 78
N.W. 395 (1899), in which this court held that an order fixing
the amount of a supersedeas bond was not appealable, because
it did not affect a substantial right. Michelle also cites Waite v.
City of Omaha, 263 Neb. 589, 594-95, 641 N.W.2d 351, 355
(2002), in which we said, “The effect of a supersedeas bond is
to either maintain an order in force or prevent the execution of
an order until a case is finally heard and determined, but not
to make the underlying order, if otherwise nonfinal, into a final
and appealable order.”
We read these cases, and others not recited here, as stand-
ing for the proposition that an order ruling on a request for a
supersedeas bond is not in itself an appealable order and that
a request for a supersedeas bond to stay execution of an oth-
erwise nonfinal order does not convert that underlying order
into an appealable order. However, the appellate courts in this
state have considered issues regarding the setting of a super-
sedeas bond when the underlying order sought to be stayed
by the bond was an appealable order. See, Buffalo County v.
Kizzier, 250 Neb. 180, 548 N.W.2d 757 (1996); The Exchange
Bank v. Mid-Nebraska Computer Services, Inc., 188 Neb.
673, 199 N.W.2d 5 (1972). See, also, Edwards v. Edwards,
16 Neb. App. 297, 744 N.W.2d 243 (2008); World Radio Lab.
v. Coopers & Lybrand, 2 Neb. App. 747, 514 N.W.2d 351(1994) (determining that appellate court had jurisdiction to
hear and determine appellee’s motion to increase supersedeas
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Cite as 299 Neb. 719bond). The procedure in those cases was not to file a sepa-
rate appeal of the supersedeas bond order, as Wallace did in
this case, but instead to raise the issue in the appeal from the
underlying order. In some cases, this has been done by filing
a motion asking the appellate court to change the amount set
by the lower court. See Folgers Architects v. Kerns, 262 Neb.
530, 633 N.W.2d 114 (2001) (stating that during pendency
of appeal, both parties filed motions relating to supersedeas
deposits made by appellant), and World Radio Lab. v. Coopers
& Lybrand, supra (examining cases which discuss procedures
available to test sufficiency of supersedeas bond and conclud-
ing that appellate court has jurisdiction to hear and determine
appellee’s motion to increase supersedeas bond). In other
cases, the supersedeas issue has been raised by assigning error
to the lower court’s ruling on a request to set a supersedeas
bond. See Buffalo County v. Kizzier, supra. See, also, Edwards
v. Edwards, supra.In the present case, Wallace did not use the procedures
just described and instead chose to separately appeal the
order setting the amount of the supersedeas bond. Because
that order is not separately appealable, we conclude that the
appeal in case No. S-16-1187 must be dismissed for lack
of jurisdiction.
Our precedent indicates that Wallace could have raised
issues regarding the supersedeas bond in case No. S-16-1086,
the appeal of the order he sought to have stayed. However,
Wallace did not file a motion in the supersedeas case, case No.
S-16-1086, requesting a change in the amount of the superse-
deas bond, and therefore, there was not a reason for this court
to consider that issue in case No. S-16-1086 prior to consider-
ing the merits of that appeal. Furthermore, if we were to treat
Wallace’s assignment of error in case No. S-16-1187 claiming
the bond was excessive as though it had been an assignment of
error in case No. S-16-1086, the issue is now moot because of
our resolution of case No. S-16-1086 affirming the contempt
order Wallace sought to stay.
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Cite as 299 Neb. 719In this respect, we note Buffalo County v. Kizzier, supra, in
which we considered an assignment of error regarding a district
court’s refusal to set the amount of a supersedeas bond. The
district court determined that the appellant’s request to set a
supersedeas bond was untimely, because although it was filed
within 30 days from the overruling of a motion for new trial,
it was filed more than 30 days after the entry of the decree to
which the motion for new trial was directed. We disagreed with
the district court’s conclusion that the request was untimely,
and we determined as a matter of law that when a timely
motion for new trial is filed, the ruling on the motion for
new trial becomes the final, appealable order, and that under
§ 25-1916, a supersedeas bond must be filed within 30 days
of the ruling on the motion for new trial rather than within
30 days of the order to which the motion for new trial was
directed. We concluded therefore that the district court erred in
refusing to set the amount of a supersedeas bond for the appel-
lant, but we noted that the error was “an error, however, which
is moot at this point.” Buffalo County v. Kizzier, 250 Neb. 180,
190, 548 N.W.2d 757, 764 (1996). See, also, Goeke v. National
Farms, Inc., 245 Neb. 262, 512 N.W.2d 626 (1994) (stating
that because we affirmed underlying order, we did not need to
consider assignment of error regarding lower court’s refusal
to set supersedeas bond); Anderson v. Anderson, 5 Neb. App.
22, 554 N.W.2d 177 (1996) (with reversal of underlying order
which modified decree of dissolution, supersedeas bond issue
became moot).
In the present case, Wallace claims that the court abused
its discretion when it set a supersedeas bond of $45,000. He
argues that under § 25-1916, the amount of the supersedeas
bond is limited to 50 percent of his net worth, and he asserts
his net worth to be less than $10,000. Wallace is correct that as
a matter of law, under § 25-1916, the supersedeas bond could
not be set at an amount exceeding 50 percent of his net worth.
However, it is apparent in this case that the district court did
not err as a matter of law by misinterpreting § 25-1916, and
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Cite as 299 Neb. 719instead, the court rejected Wallace’s assertion that his net
worth was less than $10,000 and made a finding of fact that
his net worth was such that the bond of $45,000 did not exceed
50 percent of his net worth. Unlike Buffalo County v. Kizzier,
supra, there is no question of law at issue here with regard to
the setting of the supersedeas bond that we need to address.
Instead, the issue raised by Wallace’s assignment of error
is the court’s finding of fact regarding Wallace’s net worth.
Because we have resolved the appeal the order sought to be
stayed, the setting of the supersedeas bond is a moot issue at
this point, and we need not review the district court’s finding
of fact.
For completeness and to dispel potential confusion, we
distinguish the supersedeas bond in this dissolution proceed-
ing from supersedeas bonds in probate cases. As the Nebraska
Court of Appeals stated in In re Estate of Sehi, 17 Neb. App.
697, 772 N.W.2d 103 (2009), in an ordinary appeal from a
judgment in a case originating in the district court, the appel-
lant may choose whether to seek a supersedeas bond, but in
appeals from probate cases, the law in some instances imposes
a mandatory requirement of supersedeas. In this dissolution
proceeding, however, Wallace had the option whether or not
to seek a supersedeas bond, and therefore, the standards that
govern the supersedeas bond in this case do not necessarily
apply to the mandatory supersedeas bonds required under pro-
bate statutes.
For the reasons explained above, we dismiss the appeal in
case No. S-16-1187 for lack of jurisdiction, and we need not
consider issues regarding the setting of the supersedeas bond.
Case No. S-17-037: District Court Did Not Err
When It Found Wallace to Be in Contempt of
the Decree With Regard to Child Support,
Nor Did It Err in Its Other Rulings.
In case No. S-17-037, Wallace claims that the district court
abused its discretion when it (1) found him in contempt of the
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Cite as 299 Neb. 719child support provisions of the decree of dissolution when his
complaint for modification of child support was still pend-
ing, (2) overruled his motion for recusal, (3) overruled his
“motion for judgment” on his counterclaim for modification
of the decree of dissolution, and (4) awarded attorney fees
to Michelle. We conclude that these assignments of error are
without merit.
Regarding the finding of contempt and the award of attor-
ney fees, our analysis in this appeal is similar to that in case
No. S-16-1086 above. We note that in case No. S-17-037,
Wallace does not argue, as he did in case No. S-16-1086, that
the child support judgment was dormant; as noted above, he
recognizes that child support is an exception to the operation
of § 25-1515. Wallace does, however, argue that he should
not have been found in willful contempt of the child support
provisions of the decree of dissolution, because his applica-
tion for modification of child support was still pending. As we
discussed above, the fact that an application for modification
was pending did not excuse Wallace from making payments
required under the decree of dissolution. The original provi-
sions of the decree of dissolution remained a valid judgment
unless and until the court modified those provisions. We there-
fore reject Wallace’s claim that the district court erred when it
found him to be in contempt of the child support portions of
the decree of dissolution.
Similar to his argument in case No. S-16-1086, Wallace’s
sole argument with regard to the attorney fees awarded to
Michelle in this appeal is that fees should not have been
awarded, because he should not have been found to be in con-
tempt. As we concluded in case No. S-16-1086, we conclude
in this appeal that because the court did not err when it found
Wallace in contempt of the child support provisions of the
decree of dissolution, it also did not abuse its discretion when
it awarded attorney fees to Michelle.
Regarding the motion for recusal, Wallace argues that the
district court judge was biased against him. He asserts that
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Cite as 299 Neb. 719such bias was evident from the fact that the judge had signed
the arrest warrant against Wallace for failure to make a purge
payment, even though the judge had been informed that
Wallace had attempted to make the payment, but the clerk
of the court had returned Wallace’s check to him. Although
we recognize these unfortunate set of facts, we nevertheless
determine that the record in this case does not establish bias or
prejudice as a matter of law. From our examination, the record
is not entirely clear when the judge learned from the clerk that
Wallace had attempted to make the purge payment; however,
the record clearly indicates that the day after the arrest war-
rant was filed, the judge signed an order recalling the arrest
warrant. The record indicates that the judge acted in a timely
manner to correct any error in the issuing of the arrest war-
rant, and therefore, this incident does not show partiality or
bias on the part of the judge. We reject Wallace’s claim that
the court abused its discretion when it overruled the motion
to recuse.
Finally, Wallace claims the district court erred when it over-
ruled his “motion for judgment” on his counterclaim for modi-
fication of the decree of dissolution. Michelle contends that an
order overruling a “motion for judgment” is not an appealable
order. Whether or not such an order is appealable, we note that
it does not appear that the district court ruled on Wallace’s
“motion for judgment” on the modification. To the contrary,
the court’s only references in the January 6, 2017, order to a
“motion for judgment” were its statement that it was “with-
out jurisdiction to hear [Wallace’s] Motion for Judgment on
the Pleadings with respect to the September 30, 2016 Order”
and that Wallace’s “Motion for Judgment on the Pleadings is
denied with respect to the December 8, 2016 Order.” Further,
we note that in an order filed on November 28, 2016, the court
stated that because Wallace had appealed the contempt order
filed on September 30, “pending applications for modifications
[of the decree of dissolution] or motions to dismiss portions of
such applications are stayed pending the appeal.” Therefore, it
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Cite as 299 Neb. 719appears that at the time it entered the January 6, 2017, order,
the district court was of the understanding that the modifica-
tion proceeding was stayed, and it therefore did not rule on
Wallace’s “motion for judgment” with respect to the modifi-
cation. Because the district court did not rule on the “motion
for judgment” on the modification, we cannot review such a
ruling even if such a motion were proper and such a ruling
were appealable. Furthermore, to the extent Wallace’s “motion
for judgment” related to the contempt proceedings, we have
stated that rather than a civil action, a contempt proceeding
is a “summary application after judgment.” Sickler v. Sickler,
293 Neb. 521, 540, 878 N.W.2d 549, 564 (2016). Therefore, a
“motion for judgment” is not a recognized filing in a contempt
proceeding. We therefore reject Wallace’s assignment of error
regarding his “motion for judgment.”
Having rejected Wallace’s assignments of error in case No.
S-17-037, we affirm the December 8, 2016, and January 6,
2017, orders.
CONCLUSION
In the contempt cases, cases Nos. S-16-1086 and S-17-037,
we reject Wallace’s assignments of error and affirm the orders
appealed. Because of our disposition in case No. S-16-1086
of the order sought to be stayed by the supersedeas bond,
issues raised by Wallace in case No. S-16-1187 regarding
the setting of the amount of the supersedeas bond are now
moot. In any event, in case No. S-16-1187, we conclude that
the order setting the amount of a supersedeas bond was not
separately appealable, and we dismiss the appeal for lack
of jurisdiction.
Judgments in Nos. S-16-1086 and
S-17-037 affirmed.
A ppeal in No. S-16-1187 dismissed.
Wright and K elch, JJ., not participating.