Yochum v. Yochum , 312 Neb. 535 ( 2022 )


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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    YOCHUM V. YOCHUM
    Cite as 
    312 Neb. 535
    Heather K. Yochum, now known as
    Heather K. Underwood, appellant,
    v. Chad C. Yochum, appellee.
    ___ N.W.2d ___
    Filed September 30, 2022.   No. S-21-563.
    1. Divorce: Judgments: Appeal and Error. The meaning of a divorce
    decree presents a question of law, in connection with which an appellate
    court reaches a conclusion independent of the determination reached by
    the court below.
    2. 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.
    3. Attorney Fees: Contempt: Appeal and Error. A trial court’s decision
    awarding or denying attorney fees in a contempt proceeding will be
    upheld on appeal absent an abuse of discretion.
    4. 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.
    5. Damages: Evidence: Proof. A plaintiff’s evidence of damages may not
    be speculative or conjectural and must provide a reasonably certain basis
    for calculating damages.
    6. ____: ____: ____. The question whether the evidence of damages is
    “reasonably certain” is a question of law, and not as a matter to be
    decided by the trier of fact.
    7. Evidence: Records: Pleadings: Appeal and Error. An appellate record
    typically contains the bill of exceptions, used to present factual evidence
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    YOCHUM V. YOCHUM
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    to an appellate court, and the transcript, used to present pleadings and
    orders of the case to the appellate court.
    8.    Evidence: Records: Appeal and Error. A bill of exceptions is the only
    vehicle for bringing evidence before an appellate court; evidence which
    is not made a part of the bill of exceptions may not be considered.
    9.    ____: ____: ____. Before an appellate court can consider evidence bear-
    ing upon an issue of fact, evidence must have been offered at the trial
    court and embodied in the bill of exceptions.
    10.    Divorce: Contempt. When a party willfully violates a decree, coercive
    and remedial sanctions are appropriate.
    11.    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.
    12.    Contempt: Costs: Attorney Fees. Costs, including reasonable attorney
    fees, can be awarded in a contempt proceeding when there has been a
    finding of contempt.
    13.    Attorney Fees. The decision to award attorney fees is a matter of
    discretion.
    Appeal from the District Court for Lancaster County: Susan
    I. Strong, Judge. Affirmed in part, vacated in part, and in part
    reversed and remanded for further proceedings.
    Ryan Mick Swaroff, of Swaroff Law, L.L.C., for appellant.
    Jeanelle S. Kleveland, of Kleveland Law Office, for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    The district court for Lancaster County found that Heather
    K. Yochum, now known as Heather K. Underwood, was in
    contempt of court orders contained in the divorce decree
    from Chad C. Yochum. Specifically, it found that for the tax
    years 2014 and 2019, she willfully violated the dependency
    tax exemption provisions of her marital dissolution decree
    and the order in modification. Heather appeals the findings of
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    312 Nebraska Reports
    YOCHUM V. YOCHUM
    Cite as 
    312 Neb. 535
    contempt, the amount of damages awarded to Chad, and attor-
    ney fees. We reverse the district court’s order finding Heather
    in contempt for taking tax exemptions for the 2014 tax year,
    but affirm with respect to her filing for 2019. We vacate the
    award of $3,975 awarded to Chad for tax year 2014, because
    he was not harmed in 2014. We also vacate $600 in dam-
    ages awarded to Chad for the 2019 tax year for lack of proof.
    Finally, we reverse the award of attorney fees to Chad and
    remand the cause for further proceedings with respect to the
    amount of Chad’s attorney fees.
    STATEMENT OF FACTS
    On March 7, 2011, the district court entered a decree dis-
    solving the marriage of Heather, the appellant, and Chad, the
    appellee. The parties have four children together. In 2016, the
    decree of dissolution was modified as to child support obli-
    gations, custody, and specific parenting time. In 2020, Chad
    filed an application for order to show cause, alleging that
    Heather was in contempt of the district court’s prior orders
    because she claimed dependency tax exemptions on her fed-
    eral taxes in 2014 and 2019. The district court for Lancaster
    County held hearings on three dates in the fall of 2020 and
    a fourth date in June 2021. In October 2020, Heather filed a
    motion for Chad to show cause why he should not be found
    in contempt of court for allegedly failing to pay his portion
    of childcare expenses during 2019. The record may be sum-
    marized as follows:
    2011 Decree.
    The 2011 decree awarded Heather physical custody of the
    parties’ minor children, and Chad received reasonable rights
    of parenting time set forth in the parenting plan. It provided
    that Chad pay child support to Heather and subjected him to
    income withholding. The attached property settlement also
    provided that “in the event [Chad] fails to pay any support
    as such failure is certified each month by the Clerk of the
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    Lancaster County District Court in which court-ordered sup-
    port is delinquent in an amount equal to the support due and
    payable for a one-month period of time,” he would be required
    to show cause why such payment was not made or face a war-
    rant for his arrest. Critical to the arguments made in this litiga-
    tion, the decree provided:
    7. DEPENDENCY EXEMPTIONS: Commencing the
    year 2011, [Chad] shall have the right to claim [two
    of the minor children] as dependents on his State and
    Federal Taxes. At such time as there are three (3) minor
    children, [Heather] shall claim two (2) of the children
    in even-numbered years, and [Chad] shall claim one (1)
    child in even-numbered years. In odd-numbered years,
    [Heather] shall claim one (1) minor child and [Chad]
    shall claim two (2) children. At such time as there are
    two (2) minor children, each party shall claim one (1)
    child. When there is only one minor child, the parties
    shall alternate the dependency exemption with [Heather]
    claiming the minor child in all even-numbered years
    and [Chad] claiming the minor child[] all odd-numbered
    years. [Chad] shall only be entitled to claim any of the
    minor children for dependency exemption purposes in
    any year so long as he is current on his child support,
    child care, and medical care obligations at the end of
    the appropriate tax year. [Heather] agrees to not make
    any conflicting claim for said exemptions and shall upon
    request execute an IRS form 8332 releasing all right to
    claim said exemption.
    8. CHILD CARE: The parties shall each pay 50% [of]
    the work related child care costs incurred on behalf of the
    minor children, and [Chad] shall reimburse [Heather], as
    necessary, for child care expenses within fifteen (15) days
    of receipt of the statement for the same. [Heather] shall be
    allowed to claim the child care expense as a deduction on
    her taxes each year.
    (Emphasis supplied.)
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    YOCHUM V. YOCHUM
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    2016 Order in Modification.
    On July 27, 2016, the district court entered an order in
    modification which, inter alia, modified the amount of Chad’s
    child support obligations. The order of modification did not
    provide for any changes to the parties’ dependency tax exemp-
    tions and childcare obligations and stated that “[a]ny provi-
    sions not herein modified from prior orders remain in full force
    and effect.”
    2014 Dependent Tax Exemption.
    Chad offered as an exhibit a notice of penalty he received
    from the Internal Revenue Service after both he and Heather
    had claimed the same two minor children for the tax year
    2014.
    Chad testified, and the record reflects, that in 2014, he
    had an automatic wage withholding for his child support.
    However, a payment history report from the Department
    of Health and Human Services (DHHS) showed that on
    December 31, 2014, Chad owed $557.79. Chad and Heather
    testified that Chad did not meet his child support obligations
    for a period of several weeks in 2013 because he lost his
    job, and the amount owed shown on the DHHS report at the
    end of 2014 reflected what remained of his prior arrearage.
    The DHHS report showed that Chad’s consistent payments
    throughout 2014 applied to satisfy the present month’s child
    support obligation, and DHHS applied any remaining money
    from Chad’s payments to the balance in arrears carried for-
    ward from past months.
    Heather had testified at depositions taken in July 2016
    that she believed Chad could not take the 2014 dependency
    exemption, because he was not “current” on child support.
    She testified that she had talked to child support enforcement
    and obtained a copy of the payment history report for that
    year. Because Chad did not have a zero balance at the end
    of 2014, she filed her taxes believing he could not take the
    exemption.
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    312 Nebraska Reports
    YOCHUM V. YOCHUM
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    312 Neb. 535
    2019 Dependent Tax Exemption.
    With respect to the 2019 tax year, the payment history report
    from DHHS showed that Chad had a credit on December 31,
    2019, of $114.85 for child support. Chad testified about a
    timing issue, specifically that the account showed a credit,
    because there are periods of time where there are credits and
    periods of time where money is owed, depending on how
    many pay periods are in a month. He testified that in January
    or early February 2020, he sent a text message to Heather
    reminding her that he could claim the two minor children
    on the taxes for the 2019 tax year. He received no response.
    He testified that he sent a text message to Heather in August
    2020 asking why she used the child tax deduction and that she
    stated she forgot.
    Chad testified at the October 2020 trial that he lost a $2,000
    tax credit because he could not claim one child in 2019 and
    that he subsequently lost out on a coronavirus relief payment
    of $500. He explained that the 2019 coronavirus relief package
    would have given him an additional payment for each child
    under the age of 17 and requested that Heather repay the relief
    money as well as the tax credit.
    Daycare.
    Chad testified on cross-examination that the children
    attended daycare from 2010 to 2018, and he conceded that he
    had never paid childcare expenses to Heather or to the child-
    care facilities. He claimed he had never received any statement
    or receipt from Heather regarding expenses for daycare or
    childcare. He acknowledged two text message conversations
    and agreed that Heather had previously told Chad that he owed
    half of childcare expenses. Chad testified that he thought day-
    care expenses were free for Heather because of her work for
    the childcare providers. He testified that he believed that day-
    care continued to be free as a benefit of Heather’s employment
    and that that was their understanding at the time of the divorce.
    He testified that he did not receive an invoice to pay daycare
    expenses until late 2020.
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    Heather testified that she had provided Chad three daycare
    receipts over the years and that she alone paid for daycare
    from 2011 through 2018. Heather testified that she stopped
    providing Chad receipts, because he would get angry and call
    her names. Heather testified that she received “Title 20” and
    $5,000 per year of daycare costs from her employer. Heather
    did not provide any exhibits showing receipts she sent to Chad
    prior to October 2020, which date was proximate to Heather’s
    filing for contempt for Chad’s alleged failure to pay childcare.
    Heather offered exhibits 21 and 22, which included attach-
    ments to an October 5, 2020, text message sent by Heather to
    Chad. The attachments were represented as reflecting daycare
    expenses. After her benefits, Heather claimed to have paid
    childcare expenses of $946 in 2016, $1,135.95 in 2017, and
    $757.28 in 2018. Exhibits 21 and 22 were excluded from evi-
    dence as hearsay.
    District Court Order.
    At the conclusion of the evidence, the district court found
    Heather in contempt for taking incorrect dependency exemp-
    tions in 2014 and 2019. The court noted that Chad fell behind
    in 2013 when he lost his job. In June 2021, the court issued an
    order finding Heather in willful and contumacious contempt
    of the decree, sentencing her to 30 days in jail, with the abil-
    ity to avoid jail time by making $200 monthly payments to
    Chad for 24 months. The court ordered Heather to pay a total
    judgment of $10,075, which was composed of $3,975 in addi-
    tional taxes Chad paid in 2014, a $2,000 tax refund he lost for
    2019, $500 and $600 2020 coronavirus relief payments, and
    $3,000 in attorney fees. Heather appeals.
    ASSIGNMENTS OF ERROR
    Heather claims, summarized and restated, that the district
    court erred when it found that Heather was in willful and con-
    tumacious contempt of the decree and order in modification.
    She also claims that the district court abused its discretion with
    respect to damages and attorney fees awarded to Chad.
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    YOCHUM V. YOCHUM
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    312 Neb. 535
    STANDARDS OF REVIEW
    [1] The meaning of a divorce decree presents a question
    of law, in connection with which an appellate court reaches
    a conclusion independent of the determination reached by the
    court below. Vyhlidal v. Vyhlidal, 
    311 Neb. 495
    , 
    973 N.W.2d 171
     (2022).
    [2] 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. 
    Id.
    [3,4] A trial court’s decision awarding or denying attorney
    fees in a contempt proceeding will be upheld on appeal absent
    an abuse of discretion. See Becher v. Becher, 
    311 Neb. 1
    , 
    970 N.W.2d 472
     (2022). A judicial abuse of discretion requires that
    the reasons 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.
    ANALYSIS
    Heather claims that the district court erred when it found
    that she was willfully in contempt of court because she had
    claimed dependency exemptions on her federal income taxes
    for the years 2014 and 2019. She also challenges the amounts
    of damages and attorney fees awarded to Chad. Heather
    contends that the language of the decree, unchanged by the
    subsequent order in modification, permitted Chad to claim
    the minor children for dependency exemption purposes only
    “so long as he is current on his child support, child care, and
    medical care obligations at the end of the appropriate tax
    year” and that he was not “current.” Brief for appellant at 14
    (emphasis omitted). Below, we examine whether Chad was
    current on these obligations at the end of the 2014 and 2019
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    tax years and conclude that Chad was not current in 2014 but
    was current in 2019 and thereby entitled to the dependency tax
    exemption for 2019, but not 2014. We also adjust the damages
    awarded to Chad and remand the issue of attorney fees to the
    district court.
    2014 Tax Year.
    With respect to 2014, Heather argues that Chad was in
    arrears on child support payments and was not “current” at the
    end of the year—and thus not entitled to claim the dependent
    tax exemption—and was not harmed with respect to his liabil-
    ity for the 2014 tax year. We agree with Heather’s argument.
    Chad does not contest that he owed a balance on December
    31, 2014, but argues that because he had not missed monthly
    payments in 2014, he was “current.” We conclude that “cur-
    rent” in the context of this decree means fully paid and up to
    date. Chad was not “current” at the end of the 2014 tax year.
    The testimony was consistent that Chad had an automatic
    wage withholding, except for 6 weeks in 2013 when he lost
    his job. Exhibits at trial, including child support payment his-
    tory reports from DHHS, confirmed this testimony. When Chad
    missed several child support payments in 2013, his account fell
    into arrears. As Chad resumed his regular payments, each pay-
    ment applied first to the pending month’s child support obliga-
    tion. Money remaining after the pending month’s support obli-
    gation served to reduce the amount in arrears, and the arrearage
    decreased until Chad became fully caught up in 2016. On
    December 31, 2014, Chad owed a balance of $557.79, largely
    composed of the arrearage incurred in 2013 for failure to pay
    child support.
    Chad argues that he was “current” under the decree, because a
    balance of $557.79 was not enough to trigger enforcement pro-
    ceedings. As authority, he cites 
    Neb. Rev. Stat. § 43-1718.01
    (4)
    (Reissue 2016), which provides:
    No obligor whose child support payments are automati-
    cally withheld from his or her paycheck shall be regarded
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    or reported as being delinquent or in arrears if (a) any
    delinquency or arrearage is solely caused by a disparity
    between the schedule of the obligor’s regular pay dates
    and the scheduled date the child support is due, (b) the
    total amount of child support to be withheld from the
    paychecks of the obligor and the amount ordered by the
    support order are the same on an annual basis, and (c) the
    automatic deductions for child support are continuous and
    occurring.
    Section 43-1718.01 concerns child support enforcement. This
    case is not an enforcement action. Instead, we are called upon
    to follow the language of the decree. See Vyhlidal v. Vyhlidal,
    
    311 Neb. 495
    , 
    973 N.W.2d 171
     (2022). Even if § 43-1718.01
    could provide context for the meaning of certain words used
    in the decree, it is factually inapplicable here because Chad’s
    arrearage is not a timing issue “solely caused by a disparity
    between the schedule of the obligor’s regular pay dates and the
    scheduled date the child support is due.” Chad’s arrearage was
    not caused solely by bureaucratic lag or timing discrepancies;
    the reason he was not current was because of events in 2013.
    Under the plain language of the decree, because Chad was not
    current on his child support obligations at the end of the 2014
    tax year, he was not entitled to claim the dependency exemp-
    tion on his federal taxes.
    The record shows that Heather was informed by DHHS
    reports that Chad was in arrears on December 31, 2014, and
    thus, Chad was not “current.” Appropriately, she filed her taxes
    and claimed the dependency exemption for the 2014 tax year.
    The district court erred when it held Heather in willful and
    contumacious contempt of court for having taken child tax
    exemptions in her tax filings for 2014. We reverse this portion
    of the order of the district court. Further, based on our ruling,
    because Chad was not harmed with respect to his tax liability
    for the 2014 tax year, we vacate the damage award of $3,975
    to which Chad was not entitled.
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    2019 Tax Year.
    With respect to 2019, Heather claims that the district court
    erred when it found her in contempt for taking the dependent
    tax credit for 2019. Specifically, Heather claims that Chad was
    not current on paying his portion of childcare expenses and
    thus not entitled to the exemptions. We find no merit to this
    claim of error.
    Heather testified that she paid work-related childcare
    expenses for the children over the years, and Chad admitted
    that he had never paid Heather for daycare, because he believed
    it was a benefit of Heather’s employment. However, turning to
    the decree which controls our analysis, the question for the trial
    court and for us on appeal is whether Chad failed to “reimburse
    [Heather], as necessary for child care expenses within fifteen
    (15) days of receipt of the statement for the same.”
    The record before us has no evidence that Heather timely
    submitted childcare expense statements to Chad prior to
    December 31, 2019, as anticipated by the decree or that such
    statements remained unpaid at the end of December 2019.
    Heather’s requests for reimbursement for childcare expenses
    submitted to Chad after December 31, 2019, are not encom-
    passed by the assignments of error in this appeal. The record of
    admitted evidence does not prove a failure by Chad to timely
    pay childcare, and we note merely incidentally that DHHS pay-
    ment history reports demonstrate that on December 31, 2019,
    Chad had a child support credit of $114.85.
    Given the admitted evidence, Chad established that Heather
    took the dependency exemption for 2019, even though Chad
    was current on his obligations under the decree and order
    in modification. The district court did not err when it found
    Heather in contempt of the decree, because she took the depen-
    dency exemptions for the 2019 tax year. We affirm this portion
    of the district court’s order.
    Damages for 2019 Tax Year.
    Because we have concluded that Chad was entitled to the
    dependency exemption for 2019, we must consider the damages
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    he may have suffered as a consequence of being deprived of
    the exemption in 2019. Specifically, although there was evi-
    dence that Chad did not receive a $500 coronavirus relief pay-
    ment, Heather claims that Chad did not adduce evidence of the
    second 2020 relief payment, and the district court erred when
    it included an extra $600 in damages for Chad that was unsup-
    ported by the evidence at trial. We agree with Heather that the
    record lacks evidence related to a hypothetical $600 payment
    and vacate the award of $600.
    [5,6] We have often stated that a plaintiff’s evidence of dam-
    ages may not be speculative or conjectural and must provide
    a reasonably certain basis for calculating damages. Pribil v.
    Koinzan, 
    266 Neb. 222
    , 
    665 N.W.2d 567
     (2003). We have con-
    sistently framed the question whether the evidence of damages
    is “reasonably certain” as a question of law, and not as a matter
    to be decided by the trier of fact. 
    Id.
    [7-9] Here, to evaluate whether the evidence of Chad’s
    claimed damages is reasonably certain, we must examine the
    evidence in the record. An appellate record typically contains
    the bill of exceptions, used to present factual evidence to an
    appellate court, and the transcript, used to present pleadings
    and orders of the case to the appellate court. In re Estate of
    Radford, 
    297 Neb. 748
    , 
    901 N.W.2d 261
     (2017). A bill of
    exceptions is the only vehicle for bringing evidence before an
    appellate court; evidence which is not made a part of the bill
    of exceptions may not be considered. 
    Id.
     Before this court can
    consider evidence bearing upon an issue of fact, evidence must
    have been offered at the trial court and embodied in the bill
    of exceptions. Smick v. Langvardt, 
    216 Neb. 778
    , 
    345 N.W.2d 830
     (1984). Specifically, we must consider whether the bill
    of exceptions contains any evidence which contributed to the
    lower court’s decision either through exhibits, through judicial
    notice, or as a result of a stipulation or admission by the par-
    ties. See In re Estate of Radford, 
    supra.
    The parties do not dispute that Chad lost a $2,000 refund
    he would have received if he had claimed a dependent on his
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    2019 taxes. Chad also testified at the October 5, 2020, hearing
    that he lost a $500 payment from the federal coronavirus relief
    package. However, although Chad did not testify to a second
    relief payment, the district court nevertheless awarded Chad
    $1,100 to reflect $500 and $600 coronavirus relief payments.
    Although there was some argument by counsel for Chad rela-
    tive to the $600 stimulus opportunity, the record does not con-
    tain evidence, judicial notice, or stipulation or admission of the
    parties that Chad lost a $600 relief payment which may have
    been available later in 2020. Accordingly, we reverse the award
    of the additional $600 in damages to Chad because it exceeded
    the evidence in the record.
    Attorney Fees.
    Finally, Heather assigns error to the district court’s award of
    $3,000 for Chad’s attorney fees, noting that Chad had submit-
    ted an affidavit that indicated his attorney fees were $2,031.44.
    [10-12] We have explained that when a party willfully vio-
    lates a decree, coercive and remedial sanctions are appropri-
    ate. See Vyhlidal v. Vyhlidal, 
    311 Neb. 495
    , 
    973 N.W.2d 171
    (2022). 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. 
    Id.
     Costs, including reasonable attorney fees,
    can be awarded in a contempt proceeding when there has been
    a finding of contempt. 
    Id.
    [13] The decision to award attorney fees is a matter of dis-
    cretion. See Becher v. Becher, 
    311 Neb. 1
    , 
    970 N.W.2d 472
    (2022). Because we reverse the portion of the order which
    found Heather in contempt related to the 2014 dependency
    exemption and we vacate the damage awards of $3,975 and
    $600 to Chad, we believe the district court should exercise its
    discretion anew in light of these outcomes. Accordingly, we
    reverse the award of attorney fees and remand the cause for
    reconsideration and recalculation of attorney fees in light of
    this opinion.
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    CONCLUSION
    For the reasons above, we conclude that Heather was not
    in contempt of the decree when she took a dependency tax
    exemption for 2014, and we reverse the order of the district
    court which found Heather in contempt regarding the 2014 tax
    exemption and vacate the award to Chad of $3,975 occasioned
    by this incorrect ruling. We affirm the order finding Heather
    in contempt with respect to the 2019 tax year. We vacate the
    award of $600 in damages to Chad for a lost coronavirus relief
    payment for the 2019 tax year which was unsupported by the
    record. We reverse the award of attorney fees to Chad and
    remand the cause with directions to award Chad reasonable
    attorney fees, and for further proceedings in conformity with
    this opinion.
    Affirmed in part, vacated in part, and
    in part reversed and remanded
    for further proceedings.