Schroeder v. Schroeder

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www.nebraska.gov/apps-courts-epub/
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SCHROEDER v. SCHROEDER
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Clayton B. Schroeder, appellee, v.
M aria A. Schroeder, now known as
M aria A. Michaelis, appellant.
___ N.W.2d ___
Filed August 21, 2018. No. A-17-874.
1. Child Custody: Appeal and Error. Child custody determinations are
matters initially entrusted to the discretion of the trial court, and
although reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion.
2. Judgments: Pleadings: Appeal and Error. A motion to alter or amend
a judgment is addressed to the discretion of the trial court, whose deci-
sion will be upheld in the absence of an abuse of that discretion.
3. 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.
4. Contempt: Proof. Outside of statutory procedures imposing a different
standard, it is the complainant’s burden to prove civil contempt by clear
and convincing evidence.
5. Child Custody. While the wishes of a child are not controlling in
the determination of custody, if a child is of sufficient age and has
expressed an intelligent preference, the child’s preference is entitled to
consideration.
6. Judgments. In the absence of a request by a party for specific findings,
a trial court is not required to make detailed findings of fact and need
only make its findings generally for the prevailing party.
7. Trial. Even where the civil procedure code mandates specific findings,
it does so only upon a party’s request.
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8. Trial: Time. Motions for specific findings of fact pursuant to Neb. Rev.
Stat. § 25-1127 (Reissue 2016) must be made before the final submis-
sion of the case to the court.
9. Contempt: Words and Phrases. When a party to an action fails to
comply with a court order made for the benefit of the opposing party,
such an act is ordinarily a civil contempt, which requires willful
disobedience as an essential element. “Willful” means the violation
was committed intentionally, with knowledge that the act violated the
court order.
10. Contempt: Presumptions: Proof. Outside of statutory procedures
impos­ing a different standard or an evidentiary presumption, all ele-
ments of contempt must be proved by the complainant by clear and
convincing evidence.
11. Divorce: Attorney Fees: Costs. Customarily in dissolution cases, attor-
ney fees and costs are awarded only to prevailing parties or assessed
against those who file frivolous suits.
12. Modification of Decree: Attorney Fees: Appeal and Error. In an
action for modification of a 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.
13. 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.
14. Divorce: Modification of Decree: Attorney Fees. A uniform course of
procedure exists in Nebraska for the award of attorney fees in dissolu-
tion and modification cases.
15. Attorney Fees. The award of attorney fees depends on multiple factors
that include the nature of the case, the services performed and results
obtained, the earning capacity of the parties, the length of time required
for preparation and presentation of the case, customary charges of the
bar, and general equities of the case.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Benjamin E. Maxell, of Govier, Katskee, Suing & Maxell,
P.C., L.L.O., for appellant.
Matthew Stuart Higgins, of Higgins Law, for appellee.
Pirtle, R iedmann, and Bishop, Judges.
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Pirtle, Judge.
INTRODUCTION
Maria A. Schroeder, now known as Maria A. Michaelis,
appeals the order of modification entered by the district court
for Douglas County on June 20, 2017, and the order overrul-
ing her motion to alter or amend, filed August 7. The court
denied Maria’s request to hold her former husband, Clayton B.
Schroeder, in contempt of court and granted Clayton’s request
for legal custody and attorney fees. The court denied Clayton’s
request to hold Maria in contempt of court. For the reasons that
follow, we affirm.
BACKGROUND
Clayton and Maria were married in June 2002 and divorced
in June 2006. Their daughter, Alexis Schroeder (Lexi), was
born in May 2004. The original decree of dissolution was
entered on June 8, 2006. The parties have returned to the dis-
trict court for Douglas County numerous times for the purpose
of modifying their decree or to allege violations of the decree
by the other party.
In the present matter, Clayton filed a complaint to modify
and an application for contempt citation on March 15, 2016.
He alleged that Maria had scheduled and fostered Lexi’s par-
ticipation in a number of activities without giving Clayton
notice or obtaining his consent. He argued that third parties,
including coaches and school officials, were not honoring the
authority given to him by the district court in an order entered
in December 2015. He argued that Maria defied his author-
ity by interacting with third parties on Lexi’s behalf without
Clayton’s consent or knowledge. Clayton requested that he be
awarded full legal custody of Lexi and that Maria be held in
contempt of court.
Maria filed an application to modify and an application for
contempt citation on November 30, 2016. She alleged that
Clayton acted unilaterally, in violation of the court’s orders.
She also alleged that Clayton was in contempt of the provision
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regarding telephone calls to the nonpossessory parent. She
also requested that she be awarded legal custody of Lexi and
attorney fees.
Trial was held on April 25 and 26, 2017, and the court
issued a written order on June 20. The court found that both
parties had the best interests of their child at heart, but they
“cannot agree or get along as to how to best raise their child
in lieu of a variety of activities and how to provide each party
their respective time with the child that is somewhat uninter-
rupted by the variety of activities that are scheduled and to
which they disagree.” The court found that “[b]ecause of the
continued and unrelenting problems the parties continued to
have,” there had been a material change in circumstances.
The court observed that the parties could not communicate or
cooperate properly to serve Lexi’s best interests. Therefore, the
court found it was in Lexi’s best interests to modify the decree,
and Clayton was granted sole legal custody. The order states,
“This means that [Clayton] has the sole authority to make the
decisions for the minor child.”
The court found that Maria was not in contempt of court.
The court found that Maria had violated the orders of the
court, but her violations were not done “willfully and contu-
maciously.” The court found that attorney fees were appropri-
ate and that Maria was to pay Clayton the sum of $10,000.
The court did not rule on Maria’s request that Clayton be held
in contempt.
Maria filed a motion to alter or amend and for the court to
provide more detailed findings. The court acknowledged that
there had been no ruling on Maria’s request to hold Clayton in
contempt. The court found Clayton was not in contempt, and
the motion was overruled. Maria’s motion to alter or amend
was overruled, and she timely appealed.
ASSIGNMENTS OF ERROR
Maria alleges the court erred in (1) awarding sole legal cus-
tody to Clayton; (2) overruling her motion to alter or amend,
and failing to provide a sufficiently detailed opinion; (3)
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finding Clayton was not in contempt of court; and (4) award-
ing excessive attorney fees to Clayton.
STANDARD OF REVIEW
[1] Child custody determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determina-
tion will normally be affirmed absent an abuse of discretion.
Floerchinger v. Floerchinger, 24 Neb. Ct. App. 120, 883 N.W.2d
419 (2016).
[2] A motion to alter or amend a judgment is addressed to
the discretion of the trial court, whose decision will be upheld
in the absence of an abuse of that discretion. Lombardo v.
Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).
[3,4] 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 determina-
tions of whether a party is in contempt and of the sanction to
be imposed are reviewed for abuse of discretion. Hossaini v.
Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012). Outside
of statutory procedures imposing a different standard, it is the
complainant’s burden to prove civil contempt by clear and con-
vincing evidence. Id.
ANALYSIS
Award of Sole Legal Custody to Clayton.
Maria asserts the court abused its discretion in awarding
legal custody of Lexi to Clayton, because Clayton refuses
to cooperate or communicate with Maria, he dismisses her
requests and opinions unilaterally, and he ignores her. She
argues that she is the more cooperative parent and that she
takes Lexi’s interests and wishes into account.
Child custody determinations are matters initially entrusted
to the discretion of the trial court, and although reviewed de
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novo on the record, the trial court’s determination will nor-
mally be affirmed absent an abuse of discretion. Floerchinger
v. Floerchinger, supra.
In the order overruling Maria’s motion to alter or amend, the
court found the evidence showed that after the court granted
Clayton the final decisionmaking authority, Maria “continued
to ignore that Order and do as she generally desired with the
minor child.” The court found that Clayton was better able to
cooperate with Maria and was more reasonable in the action
taken as to the activities of Lexi.
The record shows that Clayton and Maria agree that Lexi
should participate in a variety of activities, but disagree about
the frequency and extent of Lexi’s involvement. Maria testi-
fied that she signed Lexi up for activities which occurred only
on the days Lexi stayed with her and that if there were times
when the activity occurred on days Lexi was with Clayton,
Lexi just would not go. For example, Maria signed Lexi up for
a swim team and Lexi only attended practices and meets which
occurred during Maria’s parenting time. Maria’s testimony
demonstrates her belief that it was not necessary to inform
Clayton regarding activities Lexi was enrolled in, if Lexi was
participating only during Maria’s parenting time. Clayton tes-
tified that he did not think it was “appropriate” for Lexi to
“sign up for multiple events and only attend half.” He also
testified that there were activities and camps that Maria signed
Lexi up for that he did not find out about until after they had
taken place.
Maria asserts Clayton made unilateral decisions with regard
to Lexi’s activities. Clayton testified that he did not make
any decisions without first consulting with Maria. He said
there were times when she agreed, times when she disagreed,
and times that she did not respond in a timely manner to his
requests for input.
Maria argues that the decision to switch Lexi’s softball
teams “[took] Lexi away from the friends and team she knows
best.” Brief for appellant at 13. She also argued that Clayton
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had not taken her input into account in a single decision with
regard to Lexi’s extracurricular activities. Lexi testified that
she enjoyed playing on the softball team and the basketball
team that were coached by her stepfather. Clayton testified that
he was concerned because the softball team played approxi-
mately 40 games during the season and Lexi was involved in
other activities as well. Because the parties could not agree,
he exercised the decisionmaking authority the court assigned
to him and picked another softball team, offering Maria and
her husband the opportunity to coach with him. The team he
chose was made up of students who attended the same school
as Lexi.
Maria also asserts that Clayton refuses to take Lexi’s choice
of activities into account. The evidence shows that Lexi likes
to stay busy and that she enjoys a wide variety of sports and
activities, including volleyball, basketball, piano lessons, soft-
ball, swimming, and horseback riding. Clayton testified that
he takes input from Lexi and from Maria, but recognizes that
if Lexi was allowed to choose, she would “say yes to every-
thing” and would “overschedule herself.” He stated that he
was trying to parent and make decisions based upon Lexi’s
input, whether the activity will fit into the schedules for both
parents’ families, and whether the schedule Lexi was keeping
was reasonable.
The evidence shows that the joint legal custody arrange-
ment was unworkable. The parties did not agree on many
things, and it was causing significant strain on the cooperative
parental relationship between the parents and stress for Lexi.
Maria does not argue that a transition to sole legal custody
was in error; she simply believes that legal custody should
have been awarded to her. Upon our review of the evidence,
we find the decision of the district court was not an abuse
of discretion.
Maria asserts Clayton’s “[f]ear” of Lexi’s testifying at court
is indicative that he does not take Lexi’s wishes into account.
Brief for appellant at 17. Clayton stated that he did not want
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Lexi to leave the courthouse feeling the weight of responsi-
bility for the consequences of the outcome of the trial. Upon
our review, it does not appear that Clayton was fearful of the
court’s hearing the testimony of Lexi, but, rather, he did not
want Lexi to feel caught in the middle of her parents. In the
end, Lexi was asked to testify in camera. Lexi did not speak
negatively about either parent, and she expressed her desire to
participate in a number of activities. Her testimony regarding
both parents was, for the most part, very positive.
Maria asserts the court erred in awarding legal custody of
Lexi to a parent who chose not to enroll Lexi on a volleyball
team, despite the fact that volleyball is Lexi’s favorite sport
and she wants to play volleyball in college. Lexi testified that
she enjoys volleyball but that the club team “takes up a lot of
time and most of the people that play for that will — that’s the
only sport they play. And I don’t want to do that. I want to play
as many sports as possible.”
Maria asserts there was independent witness testimony
showing that Clayton’s decisions have had a detrimental effect
on Lexi and that Clayton abuses his power. Clayton sent let-
ters to two athletic organizations in which Lexi participated,
indicating that he was Lexi’s legal guardian and that he had
not given his permission for Lexi to participate. He requested
that Lexi be removed from the team rosters. In one letter,
Clayton asserted he was Lexi’s legal guardian, and in the other,
he asserted that he was “granted sole decision making author-
ity.” The individuals interpreted this communication to mean
that he possessed sole legal custody of Lexi. Maria argues
that Clayton expressed he had “sole legal custody” or was
granted “‘sole decision making authority,’” which statements
she alleges were “blatantly false” at the time they were made.
Brief for appellant at 20. The emails, which were entered as
exhibits, do not show that Clayton asserted that he was Lexi’s
sole legal guardian, even though that was the inference the
individuals drew from his statements. This particular argu-
ment is not supported by the record, as neither of the witnesses
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testified that Clayton’s actions were detrimental to Lexi. The
organizations ultimately decided not to honor Clayton’s request
to remove Lexi from their rosters, and there is no showing that
the letters affected Lexi in any way.
Maria argues the district court’s “[g]ratuitous [c]omments”
indicated that the district court was prejudging the evidence
and that the court had reached a decision on the weight to give
to Lexi’s testimony prior to her testimony. Brief for appellant
at 20. The record shows that during the cross-examination
of Clayton, wherein Lexi was described as “brilliant” and
“gifted,” the court interjected and stated the view that children
can be “brilliant,” yet still not always make great decisions
which are supported by common sense. Maria argues that the
court had clearly “already made up its mind regarding the
weight” to be given to Lexi’s testimony and that “it would not
give any credence to such testimony.” Id. at 21.
Lexi was ultimately allowed to testify, and Maria asserts
the comments made to Lexi “signified the stance it would take
on Lexi’s thought process” when the court stated, “‘[W]hat
you’ve told me so far, may not have anything to do with my
decision. My decision is basically based upon what your par-
ents have told me so far.’” Id. at 23. Prior to Lexi’s testimony,
the court informed the parties that, although he does not like
to involve minor children in these matters, sometimes it is
necessary. He stated that he does not ask children to answer
pointed questions that will make them uncomfortable. Rather,
he said:
I always, depending upon the age, tell them that they
shouldn’t be concerned as to what they tell me because,
you know, I may or may not use any of this stuff in my
decision and I probably won’t use any of this informa-
tion in my decision to make it as nonpainful [sic] as
possible.
[5] Nonetheless, Nebraska case law is clear that the court
should consider “[t]he desires and wishes of the minor child,
if of an age of comprehension but regardless of chronological
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age, when such desires and wishes are based on sound reason-
ing.” Neb. Rev. Stat. § 43-2923(6)(b) (Reissue 2016). The
Nebraska Supreme Court, in applying this provision, has stated
that while the wishes of a child are not controlling in the
determination of custody, if a child is of sufficient age and has
expressed an intelligent preference, the child’s preference is
entitled to consideration. See Wild v. Wild, 15 Neb. Ct. App. 717,
737 N.W.2d 882 (2007), citing Vogel v. Vogel, 262 Neb. 1030,
637 N.W.2d 611 (2002).
Upon our review of the court’s comments, we find the dis-
trict court applied the correct standard of law, considered the
appropriate factors, and gave the appropriate weight to Lexi’s
testimony. We find the district court did not abuse its discre-
tion in finding that it was in Lexi’s best interests to grant sole
legal custody to Clayton.
Motion to Alter or Amend.
Maria asserts the court erred in not sustaining her motion to
alter or amend and in refusing to include a detailed rationale as
to why the court chose to award Clayton sole legal custody of
Lexi. She asserts the district court’s “precursory” order hinders
her ability to properly prosecute her appeal. Brief for appellant
at 27.
In the June 20, 2017, order, the court stated:
Since that Decree of Dissolution, the parties have had
joint legal and physical custody and have had numerous
problems with each other as to the raising of the minor
child. There have been numerous filings by each party to
have the other party held in contempt of court and each
party has filed applications to modify the Decree.
The Decree was modified by this court on December
22, 2015, in which the Court found that the parties
should continue to have joint legal and physical custody
except that [Clayton] shall have the final decision making
authority. That has not proved to be effective as the par-
ties are still having problems and each party has recently
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filed Applications to Modify the Decree and Applications
to Show Cause why the other party should not be held in
Contempt of Court. This Court has found that both par-
ties have the best interest of their child at heart, however,
they cannot agree or get along as to how to best raise their
child in lieu of a variety of activities and how to provide
each party their respective time with the child that is
somewhat uninterrupted by the variety of activities that
are scheduled and to which they disagree.
The court found that there had been a material change of
circumstances due to the “continued and unrelenting problems
the parties continue to have.” The court found it was in Lexi’s
best interests to transfer sole legal custody to Clayton. Maria
filed a motion to alter or amend on June 27, 2017, requesting
that the court provide the rationale to support its ruling.
In its August 7, 2017, order, the court acknowledged Maria’s
request and stated that Clayton was “better able to cooperate”
with Maria and was “more reasonable in the action taken as to
the activities of the minor child.” Therefore, the court found
that it was in the best interests of Lexi that Clayton be granted
sole legal custody of her.
[6-8] Maria has made no reference to statutes or case law
requiring the district court to include a detailed rationale in its
award of custody. In the absence of a request by a party for
specific findings, a trial court is not required to make detailed
findings of fact and need only make its findings generally for
the prevailing party. Hall v. County of Lancaster, 287 Neb. 969,
846 N.W.2d 107 (2014), overruled on other grounds, Davis v.
State, 297 Neb. 955, 902 N.W.2d 105 (2017). See Neb. Rev.
Stat. § 25-1127 (Reissue 2016). The Nebraska Supreme Court
has held that “even where our civil procedure code mandates
specific findings, it does so only upon a party’s request.”
Becher v. Becher, 299 Neb. 206, 215, 908 N.W.2d 12, 23
(2018). Nebraska case law provides that motions for specific
findings of fact pursuant to § 25-1127 must be made “before
the final submission of the case to the court.” Stuczynski v.
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Stuczynski, 238 Neb. 368, 370, 471 N.W.2d 122, 124 (1991).
Maria’s request for the court to provide a detailed rationale
was not made until after the case was submitted to the court;
therefore, the court was not under any obligation to provide
specific findings.
Further, any deficiency in the district court’s initial order
appears to have been remedied by the rationale included in
the order following Maria’s motion to alter or amend. Having
found the district court did not abuse its discretion in awarding
Clayton sole legal custody, we find the district court did not
abuse its discretion in overruling Maria’s motion to alter or
amend. We further find that the court did not refuse to “include
a detailed rationale” as to why Clayton was awarded sole legal
custody. Brief for appellant at 27.
Clayton Was Not in Contempt.
Maria argues the district court erred by not finding Clayton
in contempt because of his “incessant refusal to allow [her] to
speak to Lexi on a daily basis via telephone.” Brief for appel-
lant at 24. Specifically, Maria asserts that Clayton should have
been held in contempt for failing to allow Lexi to call Maria
while Lexi and Clayton were on vacation in Alaska in the
summer of 2016. She also argues Clayton was in contempt for
failing to keep her apprised of Lexi’s whereabouts during that
vacation. She alleges that Clayton failed to “have Lexi tele-
phone [her] at any point” during the trip. Brief for appellant
at 24.
[9,10] When a party to an action fails to comply with a court
order made for the benefit of the opposing party, such an act is
ordinarily a civil contempt, which requires willful disobedience
as an essential element. Hossaini v. Vaelizadeh, 283 Neb. 369,
808 N.W.2d 867 (2012). “Willful” means the violation was
committed intentionally, with knowledge that the act violated
the court order. 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
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convincing evidence. Martin v. Martin, 294 Neb. 106, 881
N.W.2d 174 (2016).
The order of the court entered on November 9, 2009, states:
Both parties have further agreed that the minor child
should have access to telephone contact with the non-
possessory parent, and each parent should have the same
degree of telephone access with the child. The parent
with whom the child is staying at any one time shall
assist the child in initiating calls to or receiving calls
from the other parent, and shall not unreasonably inter-
fere with such access. Telephone access shall be exer-
cised by the non-possessory parent at reasonable times,
and for reasonable durations, to take into account the
child’s school and extracurricular activity schedule, bed-
time, and meals.
The telephone provision has been changed a few times, most
recently in the December 2015 order, which states that “the
possessory parent or the child shall initiate one phone call to
the non-possessory parent each day at the appropriate time that
the parties shall agreed [sic] upon.”
Clayton testified that he allowed Lexi to make daily tele-
phone calls to Maria during the trip. Email records show that
Clayton notified Maria prior to the trip that telephone service
would be “as previously decided with all vacations.” He noted
that Lexi would call at the beginning and near the end of the
10-day trip and that his cell phone would be off during much
of the trip because cellular service would be unavailable. At
trial, Clayton testified that he allowed Lexi to make a call to
Maria from his cell phone every day. Lexi testified that she
called Maria “a few times.” When asked to clarify, Lexi stated,
“I called her whenever I could, but sometimes we got too far
away from land or something and then nothing was — nothing
could work.”
Maria testified that she did not receive any telephone calls
from Lexi for 8 days. She sent daily emails to Clayton not-
ing that she had not talked to Lexi and that his voicemail was
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full, so she had been unable to leave a message. These emails
were entered as exhibits, as was a record of her cell phone
call history during that period. Maria testified that Lexi does
not call her home telephone number, but Maria did not pro-
vide a record of calls to or from her home telephone during
that period.
Upon our de novo review of the record, we cannot say that
Clayton willfully disobeyed the court order. The evidence
shows he was not unwilling to allow Lexi to have daily tele-
phone contact with Maria, and Lexi testified that she was in
regular contact with Maria during the trip. Additionally, the
record indicates there were circumstances and technological
limitations during the vacation that were outside of Clayton’s
control. Accordingly, the district court did not abuse its discre-
tion when it found Clayton was not in contempt.
To the extent that Maria also argues that Clayton was in con-
tempt because he “waits in the wings to rush Lexi off” of calls,
in an attempt to frustrate her, we find the court did not abuse
its discretion. Brief for appellant at 25. Maria testified that “for
the most part she calls me every night,” but she alleged that
Clayton listened to the calls or forced Lexi to end her calls
prematurely. On cross-examination, Maria testified that she
could not recall any other days other than the days during the
trip when she did not receive a call from Lexi.
Clayton testified that Lexi makes a telephone call to Maria
every day that she is with him. He also said that there have
been times when he has heard Maria yelling at Lexi about
choosing activities that Maria wants Lexi to participate in.
Clayton testified there have been times that Maria was “grill-
ing” Lexi about her test scores and that the pressure caused
Lexi to cry. As a result, he said that at times, he stands in
the area when Lexi talks to Maria to support her. He said,
“I’m standing in the area so that when I see she reacts with
tears or fear or wants to hold the phone away that I can say
you can blame this on me and you can shut the phone call
down now.”
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Lexi testified that nobody listened to her calls when she
spoke to either parent. Lexi testified that when she is at
Clayton’s house, the family is “always doing something
together,” and Maria “likes to talk . . . for a long time on the
phone,” a habit Clayton does not like. At times, Clayton inter-
rupted Lexi’s telephone calls to tell her it was time to hang up.
Lexi said that she tries not to “cut [Maria] off in the middle of
something” and that she has spoken to Clayton about not inter-
rupting her during her calls with Maria. Clayton told Lexi that
he would let Lexi “keep track” of her time on the telephone on
her own. Upon our de novo review of the record, we cannot
say that Clayton’s behavior with regard to Lexi’s daily tele-
phone contact with Maria amounts to contempt.
Attorney Fees.
Maria asserts the district court erred in “arbitrarily” assess-
ing a $10,000 award against her because she was not found to
be in contempt of court, she did not file any frivolous plead-
ings, she was not dilatory in conducting her litigation, and
Clayton was the initiating party of the modification proceed-
ings. Brief for appellant at 26. She asserts the award of attor-
ney fees was punitive.
[11,12] Customarily in dissolution cases, attorney fees and
costs are awarded only to prevailing parties or assessed against
those who file frivolous suits. Roberts v. Roberts, 25 Neb. Ct. App.
192, 903 N.W.2d 267 (2017). In an action for modification
of 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 dis-
cretion. Id., citing Garza v. Garza, 288 Neb. 213, 846 N.W.2d
626 (2014).
[13,14] 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 recov-
ery of attorney fees. Garza v. Garza, supra. A uniform course
of procedure exists in Nebraska for the award of attorney fees
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in dissolution and modification cases. See, id.; Nimmer v.
Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979). Thus, there
was authority, in this modification of a dissolution decree case,
for awarding attorney fees.
[15] The award of attorney fees depends on multiple factors
that include the nature of the case, the services performed and
results obtained, the earning capacity of the parties, the length
of time required for preparation and presentation of the case,
customary charges of the bar, and general equities of the case.
Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008).
The original application to modify was filed in 2009, and
multiple complaints to modify have been filed prior to the
instant case. Clayton sought modification of the decree in this
case because the parties had difficulty reaching cooperative
agreements regarding Lexi’s best interests when they shared
legal custody. Clayton testified that he has spent approximately
$100,000 throughout the ongoing modification cases, and he
requested, and was awarded, $10,000 for fees related to this
action. He requested sanctions against Maria in the amount of
$5,000, which the court denied.
Maria asserts that “no evidence exists within the record to
support a finding as to the specific Ten Thousand Dollar and
No Cent ($10,000.00) amount awarded by the District Court.”
Brief for appellant at 27. This assertion is not supported by the
record. Clayton’s request was supported by exhibit 26, the affi-
davit of Clayton’s counsel, which was received without objec-
tion from Maria’s counsel. Exhibit 26 contains an accounting
of attorney fees incurred between April 1, 2015, and April 24,
2017, and an estimate of 6 hours of trial time. The total came
to just under $10,000. Trial took place over the course of 2
days, April 25 and 26. We note that Maria’s attorney submit-
ted an affidavit in support of Maria’s motion for attorney fees
requesting an amount similar to Clayton’s counsel: $6,551.92
for pretrial expenses and approximately $4,000 for anticipated
trial expenses and fees.
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The court found that Maria had violated the court’s order,
but that her violation was not willful or contumacious; as such,
she was not found to be in contempt. As previously discussed,
Clayton was not found to be in contempt of the court’s orders
and he prevailed in his request for sole legal custody of Lexi.
Although Clayton initiated this action, the record shows that
he was prompted to file by Maria’s continued attempts to cir-
cumvent the spirit of the court’s previous order, which ordered
the parties to have joint legal custody but granted Clayton the
“final decision making authority.” The order also stated, “With
regard to the sporting events, in order for there to be sporting
events, the parties have to agree as to that event.” Maria was
aware of Clayton’s activity preferences for Lexi, but Maria
signed Lexi up for activities which Lexi would only attend
during Maria’s parenting time and she did not keep Clayton
informed about these extracurricular activities. The standard of
review in this case is whether the court abused its discretion,
and we conclude that it did not and that the amount of the fee
was not unreasonable.
CONCLUSION
We find the district court did not abuse its discretion in
awarding sole legal custody to Clayton, in awarding him attor-
ney fees of $10,000, or in finding that he was not in contempt.
The court did not abuse its discretion in overruling Maria’s
motion to alter or amend.
A ffirmed.