Moore v. Moore

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/10/2019 09:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
MOORE v. MOORE
Cite as 302 Neb. 588
Lucinda D. Moore, appellee, v.
Thayne D. Moore, appellant.
___ N.W.2d ___
Filed March 22, 2019. No. S-18-273.
1. Divorce: Attorney Fees: Appeal and Error. In an action involving
a marital dissolution decree, the award of attorney fees is discretion-
ary with the trial court, is reviewed de novo on the record, and will be
affirmed in the absence of an abuse of discretion.
2. Divorce: Child Support: Appeal and Error. In an action involving
a martial dissolution decree, factual determinations as to childcare
expenses incurred are reviewed de novo on the record for an abuse
of discretion.
3. Minors: Child Support. Supervision of children in the form of day
camps, lessons, or activities may under the circumstances constitute
childcare so long as such supervision is reasonable, in the child’s best
interests, and necessary due to employment or for education or training
to obtain a job or enhance earning potential.
4. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
5. Attorneys at Law: Trial: Stipulations: Parties. Stipulations volun-
tarily entered into between the parties to a cause or their attorneys, for
the government of their conduct and the control of their rights during
the trial or progress of the cause, will be respected and enforced by the
courts, where such stipulations are not contrary to good morals or sound
public policy.
6. Courts: Trial: Stipulations: Parties. Courts will enforce valid stipula-
tions unless some good cause is shown for declining to do so, especially
where the stipulations have been acted upon so that the parties could not
be placed in status quo.
7. Divorce: Stipulations: Appeal and Error. As in other matters involv-
ing dissolution decrees, a court’s decision whether to approve and
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honor a stipulation is reviewed de novo on the record for an abuse
of discretion.
8. Attorney Fees. Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and accepted uni-
form course of procedure has been to allow recovery of attorney fees.
9. Divorce: Attorney Fees. In awarding attorney fees in a dissolution
action, a court shall consider the nature of the case, the amount involved
in the controversy, the services actually performed, the results obtained,
the length of time required for preparation and presentation of the case,
the novelty and difficulty of the questions raised, and the customary
charges of the bar for similar services.
Appeal from the District Court for Buffalo County: John
H. M arsh, Judge. Affirmed in part as modified, and in part
vacated.
John D. Icenogle, of Bruner Frank, L.L.C., for appellant.
Heather Swanson-Murray, of Swanson Murray Law, L.L.C.,
P.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
The ex-husband appeals from the district court’s order that
he reimburse his ex-wife for half of certain “work related day-
care expense[s]” for the parties’ three children, as required by
the dissolution decree, and as required by Neb. Ct. R. § 4-214
(rev. 2016) of the Nebraska Child Support Guidelines, which
states that “[c]are expenses for the child” shall be allocated
to the obligor parent. The ex-husband asserts that none of the
expenses that the ex-wife testified she incurred as a means of
providing adult supervision for her children while she worked,
consisting of day camps, overnight camps, lessons, sitters, and
transportation to and from the same, qualified as “work related
daycare expense[s]” or “[c]are expenses for the child.” He
argues they were instead merely “activities.” The ex-husband
also asserts that the district court erred in awarding to the
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MOORE v. MOORE
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ex-wife $3,500 in attorney fees when the court found that the
ex-husband’s complaint to modify, which he voluntarily dis-
missed after the parties had their respective experts conduct
psychological/custody evaluations of the children, was not
frivolous. Finally at issue is whether the district court erred in
ordering the ex-husband to pay $2,500 toward the ex-wife’s
expert’s evaluation fees, when the parties had stipulated that
they would each pay their own expert’s fees.
II. BACKGROUND
1. Decree
A decree of dissolution of the marriage of Lucinda D.
Moore and Thayne D. Moore was entered on October 1, 2014.
The decree ordered that Lucinda be given sole physical and
legal custody over the parties’ three minor children. One child
was born in 2002, one in 2005, and one in 2006. Thayne was
ordered to pay child support and “50% of said work related
daycare expenses . . . within 10 days of being provided a
receipt.” He was also ordered to share in the children’s medical
expenses. Lucinda and Thayne were to inform each other of
“activities or events” where a parent may participate. The order
did not contain a provision specifically relating to payment of
“activities or events.”
2. Complaint to Modify
On September 10, 2015, Thayne filed a complaint to modify
the decree due to a material change of circumstances. Thayne
alleged that Lucinda was “unwilling to co-parent” with him
and had been inflicting “substantial mental abuse” on their
children. He asked the court to modify the decree by awarding
sole physical and legal custody of the children to him. Lucinda
generally denied the operative allegations of the complaint and
asked that it be dismissed.
(a) Motions for Expert Evaluations
Lucinda moved for a “psychological/custody evaluation” of
the children. Thayne joined the motion for a psychological/
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custody evaluation and nominated an expert to conduct the
evaluation, proposing that both parties share jointly in the
expense. Lucinda proposed Dr. Theodore DeLaet as the expert
to conduct the evaluation instead. On May 2, 2016, the
court granted the motions for psychological/custody evalua-
tions but ordered the parties to stipulate who should conduct
the evaluation and how the costs of the evaluation should
be divided.
Lucinda and Thayne were unable to reach an agreement on
a single expert to perform the evaluation. They instead jointly
stipulated that they would each use his or her own expert
to conduct independent evaluations of the children and that
they would each be solely responsible for his or her respec-
tive expert’s fees and expenses. On June 3, 2016, the court
issued an order approving the stipulation and providing that
Lucinda and Thayne could have evaluations conducted by
their respectively chosen experts, with Lucinda and Thayne
to be solely responsible for their respective expert’s fees
and expenses.
(b) Motion to Reduce Daycare
Expenses to Judgment
On January 30, 2017, Lucinda filed a “Motion to Reduce
Daycare Expenses to Judgment,” in which she asked the court
to determine daycare expenses owed by Thayne to Lucinda and
reduce such expenses to a judgment against Thayne.
(c) Thayne’s Motion to Dismiss
Without Prejudice
On February 15, 2017, the day before the scheduled hear-
ing on Thayne’s complaint for modification, Thayne moved
to dismiss his complaint without prejudice. The motion to dis-
miss was made after the psychological/custody evaluations had
been conducted. DeLaet’s evaluation had not been available to
Thayne until January 17, 2017. Neither Thayne’s nor Lucinda’s
expert recommended a change in custody.
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(d) February 15, 2017,
Order of Dismissal
The court granted Thayne’s motion to dismiss the same day
that the motion was filed. The court ordered each party to bear
his or her own costs. The court did not at that time take up
Lucinda’s motion to reduce daycare expenses to judgment.
(e) Lucinda’s Motion for
Attorney Fees
On February 21, 2017, Lucinda moved for an award of attor-
ney fees incurred as a result of the dismissed complaint to mod-
ify and for such further relief as the court deemed equitable.
Thayne responded with a motion, by “Special Appearance,” to
dismiss Lucinda’s motion for attorney fees on the ground that
it was the filing of a new lawsuit without service of process.
By an order dated June 19, 2017, the court denied Lucinda’s
motion for attorney fees. It still had not resolved her motion to
reduce daycare expenses to judgment, however.
(f) Order to Alter or Amend
June 19, 2017, Order
Lucinda timely moved to vacate, alter, or amend the June
19, 2017, order on the ground that she had been denied an
opportunity to be heard on her motion for attorney fees. On
July 19, the court altered and amended its June 19 order.
The court took stock of Lucinda’s unresolved motion to
reduce daycare expenses to judgment and concluded that it
was not a proper motion within the modification proceedings
brought by Thayne. The court explained that the question
of daycare expenses was not raised in the complaint or in
Lucinda’s answer to the complaint. The court concluded that
the “motion” was a request for relief, which required a com-
plaint and service of process. Thus, the court did not consider
the motion as being properly before it.
In contrast, the court considered Lucinda’s motion for attor-
ney fees to be incidental to Thayne’s motion to dismiss.
Further, the court considered Thayne’s motion to dismiss to be
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a general appearance. It overruled Thayne’s motion to dismiss
Lucinda’s motion for attorney fees.
The court altered and amended its June 19, 2017, order to
state: “[Thayne’s] Special Appearance is overruled. [Thayne’s]
Motion to Dismiss is sustained as to [Lucinda’s] Motion to
Reduce Daycare Expense to Judgment but overruled as to
[Lucinda’s] Motion for Attorney Fees.”
The court did not at that time rule on Lucinda’s motion for
attorney fees.
(g) Complaint to Reduce Daycare
Expenses to Judgment
On August 1, 2017, Lucinda filed a “Complaint/Application
to Reduce Daycare Expenses to Judgment” and served proc­
ess. She asked for attorney fees and costs associated with
the motion and such other relief as the court deemed just
and equitable.
Evidentiary hearings were conducted to address Lucinda’s
motion for attorney fees and her complaint/application to
reduce daycare expenses to judgment.
(i) Daycare Expenses
In relation to her complaint/application to reduce daycare
expenses to judgment, Lucinda sought reimbursement for
what she described as “daycare expenses” incurred during
2015 and 2016 when the children were not in school. She
testified that she had arranged “activities . . . that would serve
as day care.”
She chose the activities both for their enrichment and for
the level of supervision they provided. Some of the activities
were within walking or biking distance from the house, and
the children would transport themselves to and from the activ-
ity. Others required transportation, and Lucinda incurred some
expenses in paying young adults to transport the children or to
watch them for shorter periods of time.
Lucinda explained that the children were not of an age
where she thought it suitable for them to all be home by
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themselves the entire time she was at work. Lucinda said that
the oldest child would occasionally watch the younger two for
shorter periods of time, but she did not believe it appropri-
ate to have her oldest child watch her younger siblings full
time during Lucinda’s work day every day of school break.
The oldest child was apparently 13 years old by the summer
of 2016.
Lucinda testified that she generally worked from 6 a.m. to
2:30 p.m. but that on certain days, she worked from 6 a.m. to
noon. Lucinda explained that her schedule fluctuated. She tes-
tified that all the expenses she sought reimbursement for were
incurred while she was at work.
The expenses Lucinda sought reimbursement for as “day-
care” fell roughly under five categories: day camps, overnight
camps, lessons, sitters, and transportation. Lucinda testified
that the expense of sending the children to a local daycare,
where they had been cared for before, would have been signifi-
cantly more, and she provided documentation of that fact.
Specifically, Lucinda sought 50 percent reimbursement
for childcare services for her two younger children offered
through the Kearney, Nebraska, public school system and run
by school staff, which expenses totaled $130 in 2015 and $175
in 2016.
She sought reimbursement for three different volleyball
camps which cost a total of $210 in 2015 ($90 for the oldest
and $120 for the younger two) and a total of $120 in 2016 (for
all three children).
She also sought reimbursement for 50 percent of the $130
fee incurred for a basketball camp in 2016. Lucinda sought
50 percent reimbursement for $375.90 incurred in sending the
three children to a “Crossfit” speed and agility camp in 2015,
which lasted from 9 to 11 a.m. each day, during a period of
time when she worked until noon.
Lucinda also sought reimbursement of 50 percent of $250
in piano lessons, apparently for all three children, and $60 in
dance lessons for the youngest child. For 2016, she sought 50
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percent reimbursement for $120 in fees for a “tennis camp”
that all three children attended, and which lasted 11⁄2 hours each
day. Lucinda testified that these lessons provided supervision
while she was at work.
Lucinda submitted $81.20 in childcare costs provided by
trusted young adults in 2015. She submitted $110 in trans-
portation costs provided by trusted young adults and associ-
ated with getting the children to and from various camps
and lessons.
Finally, Lucinda sought reimbursement for one-quarter of
the expenses incurred in sending the three children to overnight
camps during the summers of 2015 and 2016. The expenses for
these camps, referring to the copies of the checks in the record,
were $451 in 2015 and $490 in 2016, totaling $941.
(ii) Attorney Fees and
Expert Witness Fees
Lucinda reiterated her request for attorney fees and asked
that she be reimbursed for the fees related to DeLaet’s evalua-
tion. Lucinda entered into evidence the itemized billing state-
ment by DeLaet, which demonstrated a total fee of $7,000.
The court also received the billing statement for $571.33 in
hotel accommodations while evaluations were performed in
Omaha, Nebraska, the location of DeLaet’s office. The court
accepted into evidence an affidavit by Lucinda’s attorney,
averring that since the complaint to modify, Lucinda had
incurred $11,121.56 in attorney fees and costs. Itemized bills
were attached to the affidavit. Lucinda believed that she
should not be bound by the stipulation regarding expert fees,
because the agreement contemplated that the expert reports
would be submitted at the hearing on Thayne’s complaint
and such hearing was never held because of Thayne’s volun-
tary dismissal.
(h) February 21, 2018, Order
On February 21, 2018, the court ruled on Lucinda’s motions
to reduce daycare expenses to judgment, for attorney fees, and
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expert fees. Citing Nimmer v. Nimmer,1 the court explained that
it had jurisdiction over the motion regarding daycare expenses
pursuant to its continuing jurisdiction over the decree. And
the court ultimately found that the claimed expenses should
be “equitably treated as work-related childcare.” Accordingly,
the court granted Lucinda’s motion and entered judgment
against Thayne in the amount of $1,394.35. It appears from
the record that the district court apportioned to Thayne 50 per-
cent of the total expense for all the claimed expenses, except
for the overnight camps. The court apportioned 50 percent of
one-quarter, or one-eighth, of the total cost of $941 for the
overnight camps.
The court explained that the camps and activities served a
“dual purpose” of providing both a supervised environment
during Lucinda’s working hours and opportunities for aca-
demic or athletic development. Moreover, the cost of such care
was less than half the cost of Lucinda’s credible estimated cost
for alternate childcare.
The court granted Lucinda’s motion for attorney fees. The
court explained that it was not doing so because Thayne’s
complaint to modify was frivolous; to the contrary, the court
explained it appeared that Thayne had brought the complaint
out of a credible concern for his minor children and that
Lucinda took the complaint seriously enough to retain her own
expert witness. The court further noted that DeLaet’s evalu-
ation, which appeared to be a factor in Thayne’s motion to
dismiss, was not available until approximately 1 month before
Thayne filed his motion to dismiss.
The court considered Lucinda to be the prevailing party.
The court noted that DeLaet’s evaluation appeared to be
one of the factors considered by Thayne in dismissing his
complaint to modify. The court also took into consideration
the fact that an earlier dismissal would have avoided signifi-
cant cost.
1
Nimmer v. Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979).
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The court awarded Lucinda attorney fees in the amount of
$3,500. The court also ordered, without additional explanation,
that Thayne pay $2,500 toward Lucinda’s expert’s fees.
Thayne appeals.
III. ASSIGNMENTS OF ERROR
Thayne assigns that the district court erred in (1) ruling
that extracurricular activity costs constituted daycare expenses,
(2) awarding attorney fees to Lucinda after determining that
Thayne’s case was not frivolous and dismissal was prefer-
able to proceeding to trial, and (3) awarding expert witness
fees without finding exceptional circumstances warranting the
stipulation.
IV. STANDARD OF REVIEW
[1] In an action involving a marital dissolution decree, the
award of attorney fees is discretionary with the trial court, is
reviewed de novo on the record, and will be affirmed in the
absence of an abuse of discretion.2
[2] In an action involving a martial dissolution decree,
factual determinations as to childcare expenses incurred are
reviewed de novo on the record for an abuse of discretion.3
V. ANALYSIS
1. Childcare Expenses
Thayne first argues that the district court erred in finding
that the claimed expenses fall under the category of “day-
care” or “childcare.” Although contempt actions are the proper
means to enforce a prior court order, including a child support
2
See Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014).
3
See, McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018);
Robbins v. Robbins, 3 Neb. Ct. App. 953, 536 N.W.2d 77 (1995), overruled in
part on other grounds, Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb.
661, 782 N.W.2d 848 (2010); Hoover v. Hoover, 2 Neb. Ct. App. 239, 508
N.W.2d 316 (1993).
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decree,4 Thayne does not take issue with how Lucinda’s com-
plaint was denominated.
Thayne points out that Neb. Rev. Stat. § 42-364.17 (Reissue
2016) provides:
A decree of dissolution, legal separation, or order
establishing paternity shall incorporate financial arrange-
ments for each party’s responsibility for reasonable and
necessary medical, dental, and eye care, medical reim-
bursements, day care, extracurricular activity, education,
and other extraordinary expenses of the child and calcu-
lation of child support obligations.
Thayne argues that because “day care,” “extracurricular activ-
ity,” and “education” are listed separately in § 42-364.17, they
are necessarily distinct concepts. He argues that if Lucinda
wished to be reimbursed for what were in reality extracurricu-
lar activities or education, she should have filed a complaint
for modification of the decree.
Neb. Rev. Stat. § 42-364.16 (Reissue 2016) states that child
support shall be established in accordance with guidelines
provided by the rules of the Supreme Court, unless one or
both parties have produced sufficient evidence to rebut the
presumption that the application of the guidelines will result in
a fair and equitable child support order. Under § 4-214 of the
Nebraska Child Support Guidelines, the relevant terminology is
“[c]are expenses for the child”:
Care expenses for the child for whom the support is being
set, which are due to employment of either parent or to
allow the parent to obtain training or education neces-
sary to obtain a job or enhance earning potential, shall
be allocated to the obligor parent as determined by the
court, but shall not exceed the proportion of the obligor’s
parental contribution (worksheet 1, line 6) and shall be
4
See Neb. Rev. Stat. § 42-358(2) (Reissue 2016). See, also, e.g., State on
behalf of Mariah B. & Renee B. v. Kyle B., 298 Neb. 759, 906 N.W.2d 17
(2018).
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added to the basic support obligation computed under
these guidelines.
(Emphasis supplied.) We find this terminology to be inter-
changeable with the term “day care” utilized in § 42-364.17
and in the custody decree here at issue.
This is the first time our court has addressed whether
camps, lessons, and supervised activities can be considered
childcare expenses allocated as part of a decree of child sup-
port. Under similar guidelines in other states, camps and other
supervised activities are considered childcare expenses when
they provide supervision for a child in need of care during the
custodial parent’s employment or educational training.5 The
basic requirements for such expenses to be considered child-
care or daycare are that they be work- or education-related
and reasonable.6
Thus, the court in Marriage of Mattson 7 held that the trial
court did not abuse its discretion in ordering the noncusto-
dial parent to pay a share of YMCA; soccer; basketball; and
music, art, and drama camps, as well as other day activities,
on the grounds that they were reasonable and necessary “day-
care expenses” during school breaks. The court explained that
while the statutory scheme did not define daycare expenses
or provide guidelines for determining what types of expenses
are reasonable and necessary, it must interpret the language of
the statute consistent with the overall purpose of the statutory
framework of preventing a harmful reduction in the child’s
standard of living and to allocate parental responsibilities in
5
See, Simpson v. Simpson, 650 N.E.2d 333 (Ind. App. 1995); Trausch-Azar
v. Trausch, 983 S.W.2d 199 (Mo. App. 1998); In re Arabian, 151 N.H.
109, 855 A.2d 560 (2004); Micciche v. Micciche, 62 A.D.3d 673, 879
N.Y.S.2d 502 (2009); Marriage of Mattson, 95 Wash. App. 592, 976 P.2d
157 (1999); Laura W. Morgan, Summer Camp Expenses and Child Support
Guidelines, 17 No. 3 Divorce Litig. 47 (Mar. 2005).
6
See Laura W. Morgan, Child Support Guidelines: Interpretation and
Application § 7.02 (2d ed. 2018).
7
Marriage of Mattson, supra note 5, 95 Wash. App. at 602, 976 P.2d at 163.
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accordance with the child’s best interests. The court noted that
although the children were 11 and 13 years of age, “[e]ven
if their physical health and maturity might enable them to
avoid harm without an adult present, complete lack of adult
supervision during school vacations would not be in their
best interests.”8
The court in Simpson v. Simpson 9 similarly affirmed the
district court’s order requiring the noncustodial parent to pay
a share of summer camp expenses for his 14-year-old child,
despite his contention that the child could care for herself and
even babysit others. The court noted that the child support
guidelines did not set forth a specific age as to when childcare
expenses are unnecessary and therefore unreasonable and that
the determination of whether the expenses are necessary and
reasonable rests in the sound discretion of the trial court.10
[3] We have repeatedly held that the paramount concern
in child support cases, whether in the original proceeding
or subsequent modification, remains the best interests of the
child.11 We find no merit to Thayne’s argument that because
the Legislature listed in § 42-364.17 “day care,” “extracurricu-
lar activity,” and “education” separately, these are necessarily
mutually exclusive concepts. Indeed, this court is hard pressed
to imagine childcare that does not entail some educational or
activity component, and the hard-line definition Thayne sug-
gests is contrary to the flexible, fact-specific inquiries that
otherwise govern child support.12 We hold that supervision of
children in the form of day camps, lessons, or activities may
8
Id. at 600-01, 976 P.2d at 162. See, also, Price v. Price, 205 W. Va. 252,
517 S.E.2d 485 (1999).
9
Simpson v. Simpson, supra note 5.
10
See id.
11
See, e.g., Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009); Peter
v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002); Sabatka v. Sabatka, 245
Neb. 109, 511 N.W.2d 107 (1994).
12
See, e.g., Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).
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under the circumstances constitute childcare so long as such
supervision is reasonable, in the child’s best interests, and nec-
essary due to employment or for education or training to obtain
a job or enhance earning potential.
[4] We review factual determinations as to childcare expenses
incurred de novo on the record for an abuse of discretion.13 A
judicial abuse of discretion exists if the reasons or rulings of
a trial judge are clearly untenable, unfairly depriving a liti-
gant of a substantial right and denying just results in matters
submitted for disposition.14 As to the majority of the expenses
found compensable by the district court, we find no such abuse
of discretion.
The district court did not abuse its discretion in determin-
ing in light of the children’s best interests that the expenses
incurred for day camps, activities, lessons, sitters, and trans-
portation constituted reasonable and necessary care while
Lucinda was at work. There was no evidence that Thayne had
objected to the particular nature of the camps, activities, and
lessons chosen by Lucinda in order to provide supervision and
care while she was at work. The camps, activities, lessons, sit-
ter services, and transportation, occurred while Lucinda was
at work. Lucinda explained that it was not suitable for the
children to be home by themselves during the entire time she
was at work. Thayne’s counsel conceded at oral arguments that
but for the camps, lessons, activities, sitters, and transporta-
tion, the children would have been supervised at a traditional
daycare facility. Lucinda provided undisputed evidence that
care at such a traditional daycare facility would have been
more costly. Thus, we affirm the district court’s finding that the
13
See, McCullough v. McCullough, supra note 3; Robbins v. Robbins, supra
note 3; Hoover v. Hoover, supra note 3. See, also, Simpson v. Simpson,
supra note 5; Trausch-Azar v. Trausch, supra note 5; In re Arabian, supra
note 5; Micciche v. Micciche, supra note 5; Marriage of Mattson, supra
note 5; Morgan, supra note 5; Morgan, supra note 6.
14
Armkneckt v. Armkneckt, 300 Neb. 870, 916 N.W.2d 581 (2018).
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expenses for day camps, lessons, activities, sitters, and trans-
portation were “[c]are expenses for the child” under § 4-214
or “day care” expenses under § 42-364.17 that Thayne had an
obligation under the dissolution decree to pay.
But we find that the court’s decision categorizing the over-
night camps as work-related childcare was untenable. Though
Lucinda sought only a portion of the total cost of those camps,
most of the time spent in the overnight camps were not hours
that Lucinda was working. The fees for such camps cannot
be broken down by the hour. We have found no other court
that considers overnight camps amenable to being considered
work- or education-related childcare when the parent works
only 8 hours per day. Furthermore, while not controlling, we
note that overnight camps are not considered work-related
childcare expenses for purposes of the federal child and depen-
dent care tax credit.15 Overnight camps might be appropriately
specified as a shared expense in a support order, but the word-
ing of the order here at issue did not put Thayne on notice that
he would be responsible for overnight camps as “work related
daycare expense[s].”
Therefore, we affirm the district court’s order regarding
childcare expenses with the exception of its apportionment of
the costs of overnight camps, which we vacate as an abuse of
discretion. We modify the award of $1,394.35 by deducting
the $117.63 attributable to overnight camps. The amount of
childcare owed shall thus be $1,276.72.
2. Expert Fees
[5,6] Next, Thayne argues that the district court should have
honored the stipulation voluntarily entered into between the
parties that they would each pay the fees of their respective
experts. We agree. Stipulations voluntarily entered into between
the parties to a cause or their attorneys, for the government of
15
See U.S. Dept. of Treas., I.R.S. Publication 503, cat. No. 15004M, Child
and Dependent Care Expenses (Dec. 19, 2017).
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their conduct and the control of their rights during the trial or
progress of the cause, will be respected and enforced by the
courts, where such stipulations are not contrary to good morals
or sound public policy.16 Courts will enforce valid stipulations
unless some good cause is shown for declining to do so, espe-
cially where the stipulations have been acted upon so that the
parties could not be placed in status quo.17
[7] As in other matters involving dissolution decrees, a
court’s decision whether to approve and honor a stipulation is
reviewed de novo on the record for an abuse of discretion.18
But the district court failed to make any finding of good cause
or other reasoning as to why it chose not to enforce the stipu-
lation. Lucinda argues that such finding was implicit and that
she demonstrated exceptional circumstances, specifically, that
Thayne’s last-minute voluntary dismissal of his complaint ren-
dered her expert unnecessary, but the district court found that
the expert’s report was likely instrumental in Thayne’s decision
to dismiss the complaint.
Furthermore, the district court explicitly found that the com-
plaint that prompted the expert evaluations was not frivolous
and that the last-minute voluntary dismissal was not in bad
faith. The parties acted in reliance upon the stipulation that
had been approved by the court, each hiring their own expert.
There was at the time of the February 21, 2017, order no means
to return the parties to the status quo. Finally, there was no
evidence that any portion of DeLaet’s fees were incurred as a
result of circumstances that were different than those present
when the parties stipulated to pay their own expert fees.
There was simply no evidence by which the court could
have found good cause for disregarding the stipulation and
concluding that honoring the parties’ stipulation would be
16
Mart. v. Martin, 188 Neb. 393, 197 N.W.2d 388 (1972).
17
Id.
18
See, McCullough v. McCullough, supra note 3; Garza v. Garza, supra
note 2.
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contrary to good morals or sound public policy. Thus, the
court’s award of a portion of the expert fees incurred, against
the stipulated agreement expressly approved by the court stat-
ing that each party would be responsible for the fees of their
own experts, was an abuse of discretion. We vacate the portion
of the district court’s order that awarded $2,500 in expert wit-
ness fees.
3. Attorney Fees
Lastly, Thayne asserts that the court erred in awarding
Lucinda attorney fees in the amount of $3,500. Thayne argues
that attorney fees were inappropriate because he voluntarily
dismissed his complaint, which was brought in good faith.
Lucinda does not cross-appeal the amount of the attorney
fees awarded.
[8] Attorney fees and expenses may be recovered only where
provided for by statute or when a recognized and accepted
uniform course of procedure has been to allow recovery of
attorney fees.19 Attorney fees shall be awarded against a party
who alleged a claim or defense that the court determined was
frivolous, interposed any part of the action solely for delay
or harassment, or unnecessarily expanded the proceeding by
other improper conduct.20 Additionally, in dissolution cases,
as a matter of custom, attorney fees and costs are awarded to
prevailing parties.21 Finally, a uniform course of procedure
exists in Nebraska for the award of attorney fees in dissolu-
tion cases.22
Thus, the fact that Thayne’s complaint was not frivolous or
maintained in bad faith did not prevent the court from award-
ing attorney fees.
19
Garza v. Garza, supra note 2.
20
See Neb. Rev. Stat. § 25-824 (Reissue 2016).
21
See, e.g., Garza v. Garza, supra note 2; Noonan v. Noonan, 261 Neb. 552,
624 N.W.2d 314 (2001).
22
Garza v. Garza, supra note 2.
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[9] In an action involving a marital dissolution decree, the
award of attorney fees is discretionary with the trial court, is
reviewed de novo on the record, and will be affirmed in the
absence of an abuse of discretion.23 In awarding attorney fees
in a dissolution action, a court shall consider the nature of the
case, the amount involved in the controversy, the services actu-
ally performed, the results obtained, the length of time required
for preparation and presentation of the case, the novelty and
difficulty of the questions raised, and the customary charges of
the bar for similar services.24
The district court found that Lucinda was the prevailing
party. Although Thayne voluntarily dismissed his complaint
to modify, Lucinda prevailed in her complaint to enforce the
dissolution decree in relation to childcare expenses. Lucinda
presented an affidavit by her attorney outlining over $11,000 in
attorney fees and costs. We find no abuse of discretion in the
award of $3,500 in attorney fees.
VI. CONCLUSION
For the foregoing reasons, we affirm the February 21, 2018,
order as modified and vacate the awards of $2,500 in expert
witness fees and $117.63 in overnight camp expenses. The
modified order awards $1,276.72 in childcare expenses and
$3,500 in attorney fees.
A ffirmed in part as modified,
and in part vacated.
23
See id.
24
Id.