McCullough v. McCullough , 299 Neb. 719 ( 2018 )


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    06/29/2018 08:11 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    McCULLOUGH v. McCULLOUGH
    Cite as 
    299 Neb. 719
    Wallace 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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    McCULLOUGH v. McCULLOUGH
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    8.	 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
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    in 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
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    On 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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    $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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    the 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
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    On 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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    October 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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    the 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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    “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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    on 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. 
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    Case 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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    circumstances, 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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    conclude 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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    although 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. Ct. App. 297
    , 
    744 N.W.2d 243
    (2008); World Radio Lab.
    v. Coopers & Lybrand, 
    2 Neb. Ct. 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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    bond). 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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    In 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. Ct. 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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    instead, 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. Ct. 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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    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
    “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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    such 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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    appears 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.