Roth v. Roth ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
ROTH V. ROTH
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).
ROBYN L. ROTH, APPELLANT,
V.
DOUGLAS D. ROTH, APPELLEE.
Filed March 24, 2020. No. A-19-778.
Appeal from the District Court for Buffalo County: RYAN C. CARSON, Judge. Affirmed.
Kent A. Schroeder, of Ross, Schroeder & George, L.L.C., for appellant.
Audrey A. Rowley, of Rowley Law, L.L.C., for appellee.
MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.
MOORE, Chief Judge.
INTRODUCTION
Robyn L. Roth appeals from the order of the district court for Buffalo County, which denied
her motion to hold Douglas D. Roth in contempt for failing to comply with various provisions of
the parties’ divorce decree. Because the court did not abuse its discretion in finding Douglas was
not in contempt of the decree, we affirm.
BACKGROUND
The parties were divorced in November 2015. In the decree of dissolution, the district court
noted that the parties had voluntarily entered into a stipulated property settlement agreement,
which the court incorporated by reference and attached to the decree. Pursuant to the settlement
agreement, the parties agreed:
2. . . . that [Douglas] shall pay the following spousal support to [Robyn]:
a. Regular Support. $1,000.00 monthly, for a term of five (5) years. . . .
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b. Support for Rent. [Douglas] shall pay an additional $690.00 per month, for a
period of one (1) year. . . .
c. Medical Bills. [Douglas] shall pay up to, but no more than $2,000.00 of
[Robyn’s] medical bills.
d. [Robyn’s] automobile. [Douglas] shall pay the costs of car insurance on
[Robyn’s] 2015 Chevrolet Impala, the cost of taxes, the cost of tags, for a period of 5 years,
STARTING NOVEMBER 14, 2015. If possible, [Robyn] shall title the car in her own
name and remove [Douglas] from the title. [Robyn] shall also obtain car insurance on her
own. [Robyn] will provide proof of the costs mentioned in this agreement to [Douglas].
[Douglas] will either make the payments directly to the DMV and insurance agency or will
reimburse [Robyn] after providing proof payment made.
In the property division section of the agreement, the parties agreed that they were each to be
awarded the automobiles in their possession, with the 2015 Chevrolet Impala being awarded to
Robyn. In the section of the agreement addressing the division of liabilities, the parties agreed as
follows:
The parties jointly agree that the debt of [Robyn’s] Chevrolet Impala will be a joint
debt. [Douglas] agrees to be a cosigner of the loan. [Douglas] agrees to make all payments
on the loans. First payment is due November 14, 2015. The payment is approximately
$7,000 annually. [Douglas] will make the payment on or before its due date every year
until the loan is paid in full.
With respect to an equalization payment, the settlement agreement stated:
The parties agree that for purposes of determining an equalization payment that
[Douglas’] values on the Joint Property Statement are the values to be used in the
calculation. The Distribution is attached herein as Exhibit ‘A.’ The parties agree that the
distribution shows that a payment of approximately $68,600 would be ordered. The parties
further agree that there is no equalization payment to be ordered by the Court.
The support ordered in this agreement is $60,000 in regular support, $8,280 in rent
support, $2,000 for medical bills, $35,000 of payments for [Robyn’s] vehicle, and
additional expenses associated with [her] vehicle. The parties agree that the payments of
support and payment for additional expenses by [Douglas] to [Robyn] are sufficient to
make up for the difference in value of property.
In the attached exhibit A, the Impala, valued at $35,000, was included on Robyn’s side of the
distribution of assets. Exhibit A also included a $2,000 liability owed to “Dr. Welch” on Robyn’s
side of the distribution.
On April 3, 2019, Robyn filed a verified motion for an order to show cause in the district
court, alleging that Douglas had failed to pay “his portion of the medical bills” as agreed in the
property settlement agreement, to reimburse her for the 2018 registration and taxes for the
Chevrolet Impala, and to make all payments on the loan for the Impala until it was paid in full. We
note that the issue relating to the payment of the 2018 registration and taxes for the Impala was
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resolved by the parties and Robyn’s motion proceeded to hearing only on the issues relating to the
payment of medical bills and payment of the loan on the Impala.
At the show cause hearing on July 1, 2019, the district court heard testimony from both
parties with respect to payment of medical bills and the loan on the Chevrolet Impala and received
various exhibits, including a copy of the decree with the attached settlement agreement and
property distribution.
Douglas testified that the distribution of assets exhibit attached to the settlement agreement
reflected the assets and liabilities of which the parties were aware at the time the settlement
agreement was negotiated and the decree was entered. He testified that the only medical expenses
of which he was aware in 2015 were owed to Welch, an “eye doctor surgeon in Hastings,” for
$2,000 as referenced in the distribution of assets exhibit. Douglas testified that when the property
settlement was being negotiated, he never saw any copies of medical bills from Welch, explaining
that “[w]hen [Robyn] left she took all that material”. According to Douglas, Robyn never provided
him with a bill from Welch, and the dollar amount in the settlement agreement was based upon
Robyn’s representation as to the amount owed to Welch. Douglas indicated that he contacted
Welch’s office, which refused to provide him with the necessary information due to “doctor-client
privilege.” According to Douglas, he did not receive any medical bills from Robyn until March
2019 when he was provided with a bill for amounts incurred with the Physician Network and not
Welch. Douglas testified that at the time the parties negotiated the settlement agreement, he was
not aware of any outstanding medical bills Robyn had to the Physician Network. Douglas testified,
based on his review of the billing documentation from the Physician Network received into
evidence, that there would not have been any amounts owed to that medical provider in 2015. On
cross-examination, he agreed that the settlement agreement did not require him to pay a medical
provider directly, and he testified that there was no reason he could not have simply paid Robyn
the $2,000. But he also explained, in response to questioning by the district court, that he needed
a bill from the medical provider because he utilized a farm loan to pay Robyn the funds ordered in
the decree and the bank required some type of supporting information.
In her testimony, Robyn acknowledged that in 2015, when the settlement agreement was
executed, the only outstanding medical bills she had were with Welch and that Welch was not a
provider at the Physician Network. Although Robyn testified that the bill to Welch ended up being
$4,000 (she had paid about $400 prior to entering into the settlement agreement), she
acknowledged that she never provided Douglas with a copy of any medical bills from Welch’s
office or proof of her payments. Although she referenced some documentation from Welch during
her testimony, neither that exhibit nor any other documentation of these expenses or payments
made to Welch were offered as evidence during the hearing on her motion for contempt. The only
medical bills/documents offered and received into evidence at the hearing were from the Physician
Network. One of those exhibits shows that Robyn had a total patient balance of $2,285.69 with the
Physician Network as of January 20, 2019. Robyn confirmed that as of November 2015, she did
not have any outstanding bills to the Physician Network. The other exhibit, an “Account Inquiry”
from the Physician Network, reflected service dates between September 2017 and April 2019.
Robyn confirmed that March 2019, when she provided a Physician Network bill to her attorney to
give to Douglas’ attorney, was the first time she provided any copies of outstanding medical bills;
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she also acknowledged that she never provided Douglas with any invoices from or copies of
payments she made to Welch.
The parties testified about the payment of insurance and the loan on the Chevrolet Impala.
Douglas testified that from November 14, 2015 through November 14, 2018, he made all payments
for the car insurance, taxes, and tags, for the Impala. He made the insurance payments through the
State Farm agent from whom Robyn had procured insurance. The State Farm agent kept Douglas
informed of when the insurance payments were due. Douglas paid the taxes and cost of the tags
for the vehicle directly to Robyn after she provided him proof of those expenses. Douglas made
four payments of principal and interest of $7,377.85 on the parties’ loan for the vehicle secured
through American National Bank (the bank), with the first payment being on November 12, 2015
and the last being made on November 15, 2018. The 2019 payment was not yet due when Robyn
had an automobile accident in January 2019. Douglas spoke with the insurance agent in
mid-January, and based upon that conversation, he understood that “the car was totaled.” The loan
balance for the vehicle at that time was approximately $13,800.59. After determining the actual
cash value of the vehicle, State Farm submitted payment to the bank for the loan balance on or
around February 4, and then it distributed the remaining funds ($8,281.06) directly to Robyn.
Robyn’s testimony was consistent with Douglas’ with respect to his car loan and insurance
payments.
During his testimony, Douglas was asked if he knew what caused Robyn’s automobile
accident. He responded that he did not know enough details to give an accurate description, but he
testified to his understanding that Robyn received a citation for the accident. The district court
sustained Robyn’s relevancy objection to Douglas’ initial offer of a copy of the county court
documentation of the citation and plea associated with the accident. In her testimony, Robyn
confirmed that the Chevrolet Impala was totaled in January 2019 and that she was given a citation
for the accident. Upon redirect examination by Douglas’ attorney, Robyn confirmed that due to
the accident, she was given a citation for disobeying a traffic light. Her attorney objected on
relevance when Robyn was asked if she signed “a waiver o[r] guilty plea.” The court overruled
the objection, stating that Robyn “opened the door by making the argument [in her own testimony]
that she needs a replacement vehicle.” Robyn then agreed that her “guilty plea or waiver” was
accepted by the county court, and she testified further about the accident that led to the totaling of
the Impala. At the conclusion of this testimony, the district court received a copy of the county
court documentation of the citation and plea over Robyn’s objection as to its relevance.
During the contempt hearing, Robyn’s attorney made two offers of proof. First, while
cross-examining Douglas, he asked questions about the parties’ attorneys during the divorce
proceedings, and Douglas testified that Robyn’s current attorney had been her attorney at the time
the divorce proceedings were filed. Douglas’ attorney objected on the basis of foundation when
Douglas was asked whether Robyn had discharged her attorney at some point during the divorce
proceedings. After the district court sustained the objection, Robyn’s attorney made an offer of
proof, establishing that after his discharge during the divorce proceedings, the property settlement
agreement was drawn up by Douglas’ attorney. The court again sustained Douglas’ objection,
stating, “It almost sounds as if this is becoming a collateral attack on the legitimacy of the
underlying agreement, and I don’t think that’s appropriate at this time.”
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Robyn’s attorney made a second offer of proof during his cross-examination of Robyn.
Robyn confirmed that she had also employed her current attorney at the commencement of the
dissolution proceedings, but the district court sustained Douglas’ relevance objection when
Robyn’s attorney asked her if she had discharged him from representing her during the course of
the dissolution. Robyn’s attorney then made an offer of proof, in which Robyn confirmed that she
had discharged her attorney, that she did not have an attorney advise her about the property
settlement agreement, and that it was prepared by Douglas’ attorney. At the conclusion of the
second offer of proof, the court again sustained Douglas’ objection.
On July 16, 2019, the district court entered an order, finding insufficient evidence to
support a finding of contempt either for Douglas’ failure to contribute to Robyn’s medical bills or
for his alleged failure to make all payments on the Chevrolet Impala.
In addressing the claim that Douglas had failed to pay his share of Robyn’s medical bills
pursuant to the decree, the district court determined that the language used in “paragraph 2c” of
the settlement agreement was ambiguous in that it failed to identify which medical bills were at
issue and did not explain how payment was to be made or upon what proof. Regardless of that
ambiguity, the court noted that case law required it to resolve the meaning of the decree “‘as it
appears,’ bringing all of its parts into harmony.” In doing so, the court first noted that the literal
language of the agreement required Douglas to pay “up to, but no more than $2,000.00,” which
the court found to indicate that the parties contemplated the amount owed could be less. The court
stated that Douglas would need an invoice to confirm the actual amount owed, and it observed that
he never received one. Next, the court observed that while paragraph 2c omitted any reference to
Welch, the distribution of assets exhibit attached to the agreement specifically referred to a $2,000
liability owed to Welch. The court determined that the distribution of assets exhibit had be read in
harmony with the rest of the agreement, and it concluded that the fact that the parties specifically
referenced a $2,000 liability owed to Welch in the distribution provided strong evidence that the
“medical bills” referenced in paragraph 2c were bills associated with Welch. Finally, the court
determined that reading the settlement agreement to permit Robyn to submit medical invoices
almost 4 years after its execution would not be a fair and reasonable interpretation of the
agreement. The court found this especially true because it was undisputed that the only medical
bills that existed at the time were owed to Welch. Accordingly, the court found the evidence
insufficient to support a finding of contempt for Douglas’ failure to contribute to Robyn’s medical
bills.
After reviewing the provisions of the settlement agreement requiring Douglas to make loan
payments on the Chevrolet Impala, the district court addressed Robyn’s argument that, although
the loan had been paid in full, Douglas owed her additional money for the Impala because its actual
cash value was higher than that determined by State Farm and that she was entitled to the difference
between those values. The court determined, however, that based upon the literal language used in
the settlement agreement, the current actual cash value of the Impala was irrelevant. The court
noted that the agreement did not include a provision that Robyn would be entitled to the actual
cash value in the event the vehicle was damaged and that it did not require Douglas to replace it
with a car of equal value in such an event. The court noted the actual requirements of the agreement
(that Douglas would pay the costs of car insurance, pay the taxes, pay the tags, and make all
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payments on the loan until the loan was paid in full), and it determined that the evidence showed
that Douglas had satisfied those conditions. The court stated, “While [Douglas] did not make the
final loan payment himself, the insurance policy he [sic] secured for the car, and paid for, did.”
The court also found that the agreement did not require Douglas to make the final loan payment,
only that it required him to make the loan payments on or before its due date every year until the
loan is paid in full,” and that he met this condition as well. The court also determined that the
portion of the agreement concerning equalization contradicted Robyn’s suggestion that she was
entitled to recover $35,000, the value of the Impala as noted in the distribution of assets exhibit.
The court noted language in the equalization provision of the agreement, stating that no
equalization payment would be made and that Douglas’ “payments of support and payment for
additional expenses” was “sufficient to make up for the difference in value of property.” The court
concluded that Douglas had made the payments for additional expenses as agreed by the parties
and accordingly concluded that the evidence was insufficient to support a finding of contempt for
his alleged failure to make all payments on the 2015 Chevrolet Impala.
ASSIGNMENTS OF ERROR
Robyn argues that the district court erred in (1) determining that Douglas complied with
all of the decree’s provisions, (2) sustaining Douglas’ objections to her offers of proof, (3) finding
that Douglas procured the automobile insurance on the vehicle at State Farm, and (4) overruling
Robyn’s objection to whether she was issued a citation as a result of an accident and to whether
she entered a plea to the citation.
Robyn has not presented any argument in support of her fourth assignment of error and has
presented minimal argument in support of her second and third assignments of error. To be
considered by an appellate court, an alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the error. Adair Holdings v. Johnson, 304
Neb. 720, 936 N.W.2d 517 (2020). Accordingly, we have not addressed Robyn’s fourth
assignment of error and have only addressed her second and third assignments of error to the extent
necessary based on the arguments in her brief.
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 is reviewed for abuse of discretion. Krejci v. Krejci, 304 Neb.
302, 934 N.W.2d 179 (2019). A judicial abuse of discretion exists if the reasons or rulings of a
trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just
results in matters submitted for disposition. White v. White, 304 Neb. 945, 937 N.W.2d 838 (2020).
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ANALYSIS
Douglas Not in Contempt.
The district court found that the evidence presented at the contempt hearing was
insufficient to support a finding of contempt either for Douglas’ failure to contribute to Robyn’s
medical bills or for his alleged failure to make all payments on the loan for the Chevrolet Impala.
Robyn argues that the court erred in determining that Douglas complied with all of the decree’s
provisions.
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.
Gomez v. Gomez, 303 Neb. 539, 930 N.W.2d 515 (2019). Contracts found to be ambiguous present
a question of fact and permit the consideration of extrinsic evidence to determine the meaning of
the contract. Id. However, a decree is a judgment, and once a decree for dissolution becomes final,
its meaning, including the settlement agreement incorporated therein, is determined as a matter of
law from the four corners of the decree itself. Id. The meaning of a decree must be determined
from all parts thereof, read in its entirety, and must be construed as a whole so as to give effect to
every word and part, if possible, and bring all of its parts into harmony as far as this can be done
by fair and reasonable interpretation. Bayne v. Bayne, 302 Neb. 858, 925 N.W.2d 687 (2019).
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. Krejci v. Krejci, supra. Willful disobedience is an essential element of contempt; “willful”
means the violation was committed intentionally, with knowledge that the act violated the court
order. Id. Outside of statutory procedures imposing a different standard or an evidentiary
presumption, all elements of contempt must be proved by the complainant by clear and convincing
evidence. Id. If it is impossible to comply with the order of the court, the failure to comply is not
willful. McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018). Willfulness is a
factual determination to be reviewed for clear error. Id.
Here the record shows that Douglas made the required payments on the car loan between
the time of the decree in November 2015 and November 2018. The 2019 payment was not yet due
at the time of Robyn’s accident in January 2019. Because the provisions of the property settlement
agreement and attached distribution of assets were incorporated into the decree, the meaning of
those provisions must be determined from the four corners of the document itself. Gomez v. Gomez,
supra. Douglas did not make any further payments on the car loan because it was paid off by State
Farm as a result of Robyn’s accident. Although the Chevrolet Impala was valued at $35,000, there
is nothing in the settlement agreement mandating that Robyn be awarded this value or that Douglas
replace the vehicle in the event of an accident. The settlement agreement provided that the
“support” payments to be made by Douglas were sufficient to make up for any difference in the
value of the property awarded to each party. Douglas benefitted by not having to pay the final
amount due on the loan at the time of the accident, but as the loan payments were made to the bank
and not to Robyn directly, the agreement cannot reasonably be interpreted to mean that Robyn was
entitled to any additional payment above and beyond payoff of the final loan amount, regardless
of who made that payment. And, Douglas made the insurance payments which resulted in State
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Farm making the final loan payment following Robyn’s accident. The district court did not abuse
its discretion in failing to find Douglas in contempt of the provisions of the settlement agreement
requiring him to make payments on the car loan.
As to Robyn’s medical bills, the settlement agreement incorporated into the decree required
Douglas to pay up to but no more than $2,000 of her medical bills. In interpreting this provision,
the district court examined the agreement as a whole and concluded that the distribution of assets
exhibit referenced a liability of $2,000 owed to Welch, and it concluded that the “medical bills”
referenced in the agreement were likely those associated with Welch. The parties’ testimony at the
contempt hearing supported the court’s conclusion that the medical bills owed at the time of the
decree were owed to Welch. Douglas agreed that he could have paid Robyn $2,000, but he testified
that he used a farm loan to make the payments required under the decree and that his bank required
supporting documentation. The record shows that Robyn never provided copies of any bills owed
to Welch. Clearly, Douglas has not made any payments toward the medical bills as contemplated
in the decree; however, in concluding that the evidence did not support a finding of contempt with
regard to the medical bill provision of the decree, the court implicitly determined that Douglas’
failure to pay was not willful. The court did not err in this determination. Nor did it abuse its
discretion in failing to find Douglas in contempt of court for failure to pay up to $2,000 of Robyn’s
medical bills.
Objections to Offers of Proof.
Robyn asserts that the district court erred in sustaining Douglas’ objections to her offers of
proof. Robyn only obliquely addresses this assignment of error in her argument in support of her
first assignment of error. She references the fact that her attorney made two offers of proof during
the contempt hearing and notes the court’s observation that her attorney was seemingly making a
collateral attack on the legitimacy of the property settlement agreement. She then states, “In all
due respect to the trial court, [Robyn] was simply attempting to point out to the trial court that all
of the documents in this case were drafted by [Douglas’] attorney with the help of [Douglas].”
Brief for appellant at 7. She notes the contract law principle that ambiguous contracts are construed
against the drafter. See Beveridge v. Savage, 285 Neb. 991, 830 N.W.2d 482 (2013). She then
argues that any portion of the property settlement agreement that is ambiguous must be construed
or interpreted to favor Robyn. However, as noted above, the meaning of the decree and
incorporated property settlement agreement, even if ambiguous, are to be determined a matter of
law from the four corners of the decree itself, rather than according to contract law principles. See
Gomez v. Gomez, 303 Neb. 539, 930 N.W.2d 515 (2019). Robyn has not presented any arguments
about the evidentiary merits of the court’s ruling on her offers of proof, and we decline to address
this assignment of error further.
Automobile Insurance.
The decree provided that Robyn was to obtain car insurance on her own and to provide
Douglas with those costs. It provided further that Douglas was either to make the payments directly
to the insurance agency or to reimburse Robyn upon proof of her payment. In her third assignment
of error, Robyn takes issue with a misstatement by the district court in its order ruling on her
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motion for contempt. In its order, the court stated, “He [Douglas] also secured insurance on the
vehicle through State Farm Insurance, naming [Robyn] as the insured.” In support of her
assignment of error, Robyn quotes some of Douglas’ testimony about the insurance arranged by
Robyn, and she then argues, “The forgoing finding by [the district court] is not supported by the
record and should be revised accordingly.” Brief for appellant at 8. While Robyn is correct that
the district court incorrectly identified which party obtained the car insurance, this misstatement
by the court has no bearing on the court’s determination that Douglas was not in contempt of the
decree, and we decline to address this assignment of error further.
CONCLUSION
The district court did not abuse its discretion in finding Douglas was not in contempt of the
decree.
AFFIRMED.
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