Moulton v. Moulton ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
MOULTON V. MOULTON
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
CHERYL L. MOULTON, APPELLEE AND CROSS-APPELLANT,
V.
KYLE A. MOULTON, APPELLANT AND CROSS-APPELLEE.
Filed October 2, 2018. No. A-17-948.
Appeal from the District Court for Sarpy County: GEORGE A. THOMPSON, Judge. Affirmed.
Daniel Wasson, of High & Younes, L.L.C., for appellant.
Justin A. Roberts, of Lustgarten & Roberts, P.C., for appellee.
MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
BISHOP, Judge.
I. INTRODUCTION
The marriage of Cheryl L. Moulton and Kyle A. Moulton was dissolved by consent decree
in January 2013. Each party subsequently filed an application or motion for an order to show cause
in the district court for Sarpy County; both pleadings were taken up by the court at the same
hearing. Kyle claimed that Cheryl refused to allow him parenting time with his children as ordered
in the decree. The district court concluded Kyle failed to meet his burden of proof and denied his
application. Cheryl claimed that Kyle was not paying her the military retirement benefits she was
entitled to under the decree and that he was not paying his share of the children’s medical bills.
She also claimed Kyle made disparaging comments about her to their children. The district court
concluded Kyle was not in contempt with regard to the disparaging remarks, but was in contempt
with regard to his military retirement and his obligation on the children’s medical bills. Kyle
appeals and Cheryl cross-appeals. As to matters over which we have jurisdiction, we affirm.
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II. BACKGROUND
When Cheryl and Kyle were divorced in January 2013, they had agreed to joint legal
custody of their two daughters (ages 14 and 15 at the time). Kyle was in the military, living in
North Carolina, and Cheryl and the children were living in Nebraska. The parties agreed Cheryl
would have physical custody of the children, subject to Kyle’s reasonable parenting time as set
forth in the parenting plan attached to and incorporated into the decree. Also relevant to this appeal,
Cheryl was awarded $1,200 per month from Kyle’s disposable military retirement pay, and Kyle
was ordered to pay 90 percent of the uninsured health care expenses for the children once Cheryl
paid the first $480 in such expenses per child per year.
On November 3, 2016, Kyle filed a pro se “Affidavit and Application for Order to Show
Cause (Visitation).” He claimed that Cheryl had willfully failed and refused to allow him parenting
time with his children as ordered by the court on various dates in 2013 through 2016.
On November 11, 2016, Cheryl filed a “Motion to Show Cause.” She claimed that Kyle
began receiving his retirement in January 2016 but failed to notify her or provide her with the
$1,200 per month she was owed from January through September. Cheryl also claimed that Kyle
had willfully failed to pay his portion of the medical bills for the children and that Kyle had been
disparaging her to the children on a regular basis.
Kyle then filed, through counsel, an “Application and Affidavit for Show Cause” on
January 24, 2017. He claimed Cheryl willfully and contumaciously violated the decree by filing
bankruptcy and negatively affecting Kyle on debts for which he was to be held harmless. This
application was denied by the district court in an order entered January 26. That application is not
at issue in this appeal.
The parties appeared before the court on February 28, 2017, on each party’s contempt
pleading. The evidence presented will be discussed as necessary in our analysis to address the
errors assigned by the parties. The district court entered an order on April 18, in which the court
denied Kyle’s application (regarding parenting time issues). As to Cheryl’s motion, the court noted
there were three issues to be addressed: military retirement, disparagement, and medical bills. The
court found Cheryl did not meet her burden of proof with regard to the disparagement matter, but
found the evidence did establish that Kyle had failed to pay Cheryl the portion of his military
retirement she was awarded pursuant to the parties’ divorce decree and failed to pay his portion of
the children’s medical bills. Accordingly, the court found that Kyle was in willful and
contumacious contempt of the decree with respect to military retirement and medical bill
payments, and ordered him to appear for a final dispositional hearing on July 10. That hearing was
subsequently continued to August 4, at which time further exhibits were received and counsel for
both parties made arguments. Evidence from that hearing will be set forth as necessary in our
analysis of the assigned errors.
On August 11, 2017, the district court entered an “Order (Disposition and Purge Plan)”
stating that a warrant would issue for Kyle on February 5, 2018, for confinement in the Sarpy
County jail for 60 days, but execution of the jail sentence would be stayed so long as Kyle complied
with the purge plan. The purge plan required Kyle to pay to Cheryl $5,420.50 for unreimbursed
medical bills and $9,600 for retirement benefits. The total amount of $15,020.50 was to be paid in
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monthly installments of $2,503.42 starting September 1, 2017, until paid in full. Kyle appealed on
September 1; Cheryl has cross-appealed.
III. ASSIGNMENTS OF ERROR
Kyle assigns, restated, that the district court erred in (1) failing to find Cheryl in contempt
for denying him parenting time, (2) finding him in contempt regarding the military retirement
funds and medical bills, and (3) its determination of the amount owed on medical bills.
Cheryl assigns on cross-appeal that the district court abused its discretion by (1) failing to
find Kyle in contempt for making disparaging remarks about her in the presence of their children
and (2) failing to order Kyle to pay her attorney fees.
IV. STANDARD OF REVIEW
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 sanction to be imposed are reviewed for abuse of discretion. McCullough v.
McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018).
A trial court’s decision awarding or denying attorney fees will be upheld on appeal absent
an abuse of discretion. Id.A jurisdictional question which does not involve a factual dispute is determined by an
appellate court as a matter of law. Id.V. ANALYSIS
1. JURISDICTION
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. McCullough v. McCullough, supra.Under Nebraska law, an order of contempt in a postjudgment proceeding to enforce a previous
final judgment is properly classified as a final order. See id. In 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. McCullough v. McCullough, supra.In the present case, each party filed a separate contempt action against the other; both
parties adduced evidence on their respective claims at the February 28, 2017, hearing. In its April
18 order, the district court found that Kyle failed to meet his burden of proof on his contempt
action against Cheryl, in which Kyle claimed Cheryl had denied him certain parenting time. The
April 18 order stated, “IT IS THEREFORE ORDERED AND ADJUDGED that [Kyle’s]
Application to Show Cause is without merit and is denied.” There is no question the April 18 order
disposed of all matters raised by Kyle in his separately filed contempt action. Accordingly, the
order was final as to Kyle’s contempt action against Cheryl. Since no appeal was filed within 30
days of the April 18 order, we are without jurisdiction to consider Kyle’s first assigned error related
to the court’s denial of his contempt action against Cheryl. See Belitz v. Belitz, 21 Neb. App. 716,
842 N.W.2d 613 (2014) (custody modification and contempt action were tried together but
constituted two separate pleadings and presented separate issues; initial order disposing of custody
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issues was immediately appealable, and therefore appeal filed after contempt orders were later
entered rendered appeal timely as to contempt orders but untimely as to earlier custody
modification order).
On the other hand, we do have jurisdiction over all matters related to Cheryl’s contempt
action against Kyle. As to her action, the district court concluded she raised three issues, namely,
military retirement benefits, disparagement matters, and medical bill obligations. The court found
Cheryl did not meet her burden of proof with regard to her disparagement allegations, but found
Kyle in willful and contumacious contempt with respect to the military retirement and medical bill
obligations and scheduled those issues for a later final dispositional hearing. That hearing took
place on August 4, 2017, and the court entered an “Order (Disposition and Purge Plan)” on August
11. Accordingly, Cheryl’s contempt action against Kyle was not final until the disposition order
was entered on August 11. See In re Interest of Karlie D., 19 Neb. App. 135, 809 N.W.2d 510(2011) (when court makes findings of contempt in contempt proceeding, but imposes no sanction,
there is no final order from which to appeal). See, also, Belitz v. Belitz, supra (although two
separate orders were entered related to issues raised in one contempt application, issues were not
appealable until court disposed of all claims raised in application). Since Kyle’s September 1
notice of appeal was filed within 30 days of the August 11 final disposition order on Cheryl’s
contempt action, we have jurisdiction to review all issues arising from that action, including
Cheryl’s cross-appeal.
2. CONTEMPT PRINCIPLES
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. House v. House, 24 Neb. App. 595, 894 N.W.2d 362 (2017). Willful means
the violation was committed intentionally, with knowledge that the act violated the court order. Id.It is the complainant’s burden to prove civil contempt by clear and convincing evidence. Spady v.
Spady, 284 Neb. 885, 824 N.W.2d 366 (2012).
There are no issues of law raised in the present appeal. We will therefore review the trial
court’s factual findings for clear error, and we will review the trial court’s determinations of
contempt and the imposed sanction for an abuse of discretion. See McCullough v. McCullough,
supra.
3. MILITARY RETIREMENT
The provision of the January 28, 2013, decree related to Kyle’s military retirement states,
in relevant part, that Cheryl “is awarded $1,200 per month, in a fixed dollar amount, of [Kyle’s]
disposable military retired pay.” It also states:
[Cheryl] may elect to receive such award directly from Defense Finance and
Accounting Service (DFAS), so long as it is in a $1,200 per month fixed dollar amount
form. If [Cheryl] is married on her 65th birthday, or marries anytime subsequent thereto,
this retirement pay shall cease. If [Kyle] dies, this retirement pay shall cease.
The Parties recognize that [Kyle] is still on active duty and may at some point in
the future elect to receive a portion of his retirement benefits via disability through the
Veteran’s Administration. The Parties agree and the Court orders that [Kyle] has a duty not
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to take any action that results in a reduction to [Cheryl’s] fixed dollar amount of $1,200.00.
If [Kyle] does anything which results in such a reduction, he shall reimburse her in an
amount equal to any such reduction.
Another provision of the decree states,
Each party shall execute any documents or deeds requested by the other to carry
out the terms of the property settlement agreement. The decree shall act as a conveyance
of all property to be transferred by the decree and property settlement agreement just as if
the title, document, deed, or other necessary paperwork were actually signed by the
transferring party and delivered and filed with the appropriate authority.
In Cheryl’s “Motion to Show Cause,” she claimed that Kyle began receiving his retirement
in January 2016 but failed to notify her or provide her with the $1,200 per month owed to her from
January through September. At the February 28, 2017, hearing on her contempt motion, Cheryl
testified that she only learned about Kyle’s retirement when she tried to make a doctor’s
appointment for one of the daughters and was told the insurance had changed due to “retirement
insurance.” According to Cheryl, when she asked Kyle about the retirement money owed to her
from earlier in the year, Kyle told her it was “none of [her] business” and he said that they had
agreed she would not start receiving those retirement payments until her spousal support was
finished. Cheryl testified that she started receiving her $1,200 per month of Kyle’s military
retirement in October 2016. Kyle offered no testimony in response to Cheryl’s assertions, although
he did testify that his “final day in uniform was 31 January of 2016,” and therefore his first day of
retirement started on February 1.
The district court found that Kyle willfully and contumaciously failed to pay Cheryl the
portion of his military retirement she was awarded under the decree. In the August 11, 2017, final
disposition and purge plan order, Kyle was ordered to pay $9,600 in retirement benefits to Cheryl.
Kyle argues that the decree is silent as to his duties regarding the military retirement beyond
the admonition to avoid reducing Cheryl’s portion by seeking payment through disability. He
asserts that there was no obligation placed on him regarding how Cheryl was to receive her portion
of the retirement. He states, “Quite frankly, it is difficult to find what part of the Decree Kyle has
willfully and intentionally violated.” Brief for appellant at 17. He acknowledges that while it may
be factually true that Kyle failed to pay Cheryl her portion of the military retirement between
February and September 2016, he suggests that “the facts certainly do not establish that such failure
was intentional with the knowledge the act violated the Decree.” Id. He claims there is no
obligation placed on Kyle in the decree regarding how Cheryl was to receive her portion of the
retirement and there “is little guidance whatsoever on how Cheryl was to receive her portion” other
than the clause stating Cheryl “‘may elect to receive such award directly from Defense Finance
and Accounting Service (DFAS), so long as it is in a $1,200 per month fixed dollar amount
form.’” Id.We cannot say the district court abused its discretion in finding Kyle willfully failed to
comply with the decree. The decree states that Cheryl “is awarded $1,200 per month, in a fixed
dollar amount, of [Kyle’s] disposable military retired pay.” Once Kyle started drawing his military
retirement pay, the decree required that $1,200 of those funds be paid over to Cheryl. Kyle testified
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that his “final day in uniform” was January 31, 2016. Exhibit 8 indicates that Kyle started receiving
his retirement benefits in February 2016 and a “FORMER SPOUSE” deduction of $1,200 was not
started until Kyle’s September 2016 retirement check. While Kyle is not wrong in suggesting that
Cheryl could have taken affirmative steps to set up direct payments from DFAS, the fact that she
did not do so does not change the fact that once Kyle started drawing his retirement pay, the decree
required that Cheryl be given her fixed dollar amount share. When Cheryl confronted Kyle about
receiving her share, Kyle told her it was “none of [her] business” and that they had agreed he did
not have to pay her until her spousal support ended. There is nothing in the decree to support
Kyle’s response, and his response shows he was making a willful decision to not pay Cheryl her
share of the retirement funds he had started to receive.
Based upon our review of Kyle’s “Retiree Account Statement” for the months of March
through November 2016 (exhibit 8), it is unclear how the district court determined that Kyle owed
Cheryl $9,600 in retirement benefits. Based upon the year-to-date amount reflected in the March
statement, it is evident Kyle began drawing his retirement pay in February. The withholding for
the former spouse deduction of $1,200 did not commence until the September payment. Therefore,
Cheryl would have been owed $1,200 per month from February through August, which is 7
months, totaling $8,400. However, Kyle did not assign as error the amount owed or the monthly
payment required under the purge plan, and therefore, we affirm the district court’s order finding
Kyle in contempt for his willful failure to pay Cheryl her court-ordered share of his military
retirement pay.
4. MEDICAL BILLS
The provision of the January 28, 2013, decree related to Kyle’s obligation to pay medical
costs for the children states, in relevant part:
[Cheryl] shall pay 10% and [Kyle] shall pay 90% uninsured health care expenses
incurred for the minor children after [Cheryl] has paid the first $480.00 per child per year
in said expenses. . . . Medical expenses include any medical, dental, orthodontia,
counseling, therapy, and vision expenses that are not covered by insurance. [Cheryl] shall
fax, email, and/or mail [Kyle] proof of the unreimbursed medical expenses she incurs for
each minor child by providing him with receipts and, when applicable, the Explanation of
Benefits statements, within 10 days of [Cheryl] receiving such bills. [Kyle] shall then have
21 days from the date [Cheryl] provided the billing information to him to reimburse her for
his 90% share.
Cheryl testified that Kyle told her he was not going to pay for contact lenses because they
were cosmetic. Cheryl claimed that she tried to give Kyle medical bills and that he would just hand
them back to her and tell her he was not going to pay for contact lenses. Exhibits 12 through 17
were received and reflected itemized amounts paid for contacts, braces, and glasses for the parties’
daughters from 2013 through 2015; supporting documents were attached to each itemization.
According to Cheryl, these exhibits represented bills for the children which she tried to give to
Kyle more than once, but she finally stopped trying to give them to him because “he would call
me and yell at me saying he was not paying those contact lenses because those were just cosmetic.”
Kyle did not refute this evidence.
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The district court found that Kyle willfully and contumaciously failed to pay his portion of
the children’s medical bills as ordered under the decree. No specific amount was set forth in the
April 18, 2017, order; however, we note that the amount due in the bills contained in exhibits 12
through 17 for Kyle’s 90-percent portion totals $5,420.50. At the August 4 hearing, Kyle offered
his affidavit, in which he claimed he owed $2,394 in medical expenses and was prepared to pay
that amount. He averred that “[t]he balance of the expenses claimed by [Cheryl] are for contact
lenses,” and that the position of his insurance company, Tricare, was that “contact lenses are not
necessary,” but are “elective and cosmetic.” In the August 11 final disposition and purge plan
order, Kyle was directed to pay to Cheryl his 90 percent ($5,420.50) of the bills submitted by
Cheryl.
Kyle argues that there was no credible evidence that Cheryl complied with the decree in so
far as her responsibility to fax, email, or mail Kyle the bills within 10 days of receiving them. He
claims that since he only saw his children “approximately 2 times a year,” then “[i]ndeed, the bulk
of the bills allegedly submitted would have been several months (perhaps years) old by the time
hand delivery to Kyle was even feasible.” Brief for appellant at 21. He asserts that a “prerequisite
to finding [him] in contempt in the instant case is that such medical bills were actually submitted
to him.” Id. at 22. Kyle argues that even assuming Cheryl gave him a bill, “[t]here is virtually no
evidence” that she faxed, emailed, or mailed the bill as required to under the decree. Id.
The decree requires that Cheryl shall pay 10 percent and Kyle shall pay 90 percent of the
uninsured health care expenses incurred for the minor children after Cheryl has paid the first $480
per child per year in such expenses. And it is clear that medical expenses include orthodontia and
vision expenses “that are not covered by insurance.” The bills submitted by Cheryl were for
contacts, braces, and glasses; all of these items would fall under the medical expense requirement
for uninsured expenses. And although the decree provides a method and timeframe for Cheryl to
submit the bills to Kyle and a timeframe for Kyle to pay them, the lack of compliance with that
timeframe by either of them does not change the fact that each is required to pay their designated
percentage of those bills. If the parties desired a waiver provision in the event of late submission
of the bills, they could have included one in the consent decree, but did not. Further, in the affidavit
submitted by Kyle at the August 4, 2017, final hearing, he admitted to owing, and was prepared to
pay, $2,394 in medical expenses which he had apparently calculated were those bills which did
not include contact lenses. He was unwilling to pay the amount billed for contact lenses. Kyle was
ordered to pay 90 percent of any vision expenses not covered by insurance; nothing in the decree
excludes contact lenses. We find no abuse of discretion by the district court in finding Kyle in
contempt on this issue.
Alternatively, Kyle argues that if this court finds he “willfully and contumaciously defied
the court regarding unpaid medical bills, the amount of unpaid bills [he] should be responsible for
should be limited to bills pertaining to the contact lenses alone.” Id. at 23. Kyle claims that Cheryl’s
contempt motion only alleged the nonpayment of bills for contact lenses, and therefore “he did not
have fair notice of the medical bills Cheryl was alleging he did not pay.” Id. It is true that Cheryl’s
motion only referred to the bills for contact lenses; however, as noted above, Kyle produced his
own affidavit that he owed $2,394 of the bills submitted, which did not include the contact lenses.
Therefore, we cannot say the district court abused its discretion by ordering Kyle to pay 90 percent
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of all the uninsured medical bills since they included the bills he agreed he owed, plus the bills for
contact lenses which he refused to pay but should have paid, as already discussed.
5. CHERYL’S CROSS-APPEAL
(a) Disparaging Remarks
In her cross-appeal, Cheryl claims the district court abused its discretion by failing to find
Kyle in contempt for making disparaging remarks about her in the presence of their children. There
is language in the parenting plan incorporated into the parties’ decree which states:
The Mother and Father agree that they will assist the minor children in maintaining
a positive relationship with the other parent and with other family members. The Mother
and Father agree that neither will engage in conduct which tends to disparage the other
parent or other family members, which tends to develop or maintain a negative relationship
toward the other parent or other family members, or which tends to encourage the minor
children to violate this Plan or be uncooperative in implementing it.
In his reply brief, Kyle argues this assigned error is moot because the parenting plan is no
longer in effect. He notes that the children were born in 1997 and 1998 and are no longer minor
children; thus, the parenting plan “has been terminated” with respect to the children. Reply brief
for appellant at 23. We agree. A case becomes moot when the issues initially presented in the
litigation cease to exist, when the litigants lack a legally cognizable interest in the outcome of the
litigation, or when the litigants seek to determine a question which does not rest upon existing facts
or rights, in which the issues presented are no longer alive. Glantz v. Daniel, 21 Neb. App. 89, 837
N.W.2d 563 (2013). See, also, Kennedy v. Kennedy, 205 Neb. 363, 367, 287 N.W.2d 694, 696
(1980) (child reached his majority one month before case was heard in appellate court, therefore
all disputes concerning his custody became moot and did not require further consideration;
“[o]rdinarily, jurisdiction over the custody of a child in a divorce proceeding terminates when the
child reaches his majority”). In light of the parties’ daughters both reaching the age of majority,
matters arising out of the parties’ parenting plan are no longer actionable and are now moot.
(b) Attorney Fees
At the hearing on August 4, 2017, Cheryl submitted her attorney’s affidavit showing fees
and costs totaling $7,465.98. Kyle argued at the hearing that Cheryl’s attorney fee affidavit
contained billing for matters unrelated to her contempt action, noting that there was a county court
case pending between the parties and that the attorney fees reflected in the affidavit were “quite
inflated.” The district court’s August 11 order did not award either party any attorney fees.
Cheryl claims it “is simply not enough to award [her] the amounts she is owed under the
Decree, when the proceedings themselves should have been unnecessary and caused her significant
money damages in fees.” Brief for appellee at 41.
Reasonable attorney fees can be awarded in a contempt proceeding. See McCullough v.
McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018). When an attorney fee is authorized, the
amount of the fee is addressed to the trial court’s discretion, and its ruling will not be disturbed on
appeal absent an abuse of discretion. Patera v. Patera, 24 Neb. App. 425, 889 N.W.2d 624 (2017).
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Both parties brought contempt actions against the other; neither of which was frivolous simply
because relief was not granted in all respects. Each party therefore incurred costs necessitated by
their inability to communicate with each other and work through the problems raised in their
respective contempt actions. We cannot say the district court abused its discretion by declining to
award attorney fees.
VI. CONCLUSION
For the reasons set forth above, we affirm the district court’s August 11, 2017, order.
AFFIRMED.
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