IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
JAMES-ESTENSON V. ESTENSON
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).
KARA D. JAMES-ESTENSON, APPELLEE AND CROSS-APPELLANT,
V.
NATHAN E. ESTENSON, APPELLANT AND CROSS-APPELLEE.
Filed November 21, 2017. No. A-16-846.
Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Affirmed.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
Andrea D. Snowden and Amanda M. Phillips, of Baylor, Evnen, Curtiss, Grimit & Witt,
L.L.P., for appellee.
PIRTLE, RIEDMANN, and ARTERBURN, Judges.
ARTERBURN, Judge.
I. INTRODUCTION
Nathan E. Estenson appeals and Kara D. James-Estenson cross-appeals from an order
entered by the district court for Lancaster County which modified the parties’ decree of dissolution.
Nathan assigns numerous jurisdictional, procedural, and factual errors regarding the district court’s
modification of the decree. Kara argues the district court erred by refusing to award an upward
deviation for Nathan’s failure to pay noncovered medical expenses for the parties’ only child. For
the reasons set forth below, we affirm.
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II. BACKGROUND
The parties were divorced pursuant to an agreed upon decree of dissolution entered by the
district court on April 11, 2011. The parties have one child, Ronan, born in 2004. The parties were
awarded joint legal custody of the child with primary physical custody awarded to Kara and
specific parenting time awarded to Nathan. The decree ordered Nathan to pay $156.00 per month
in child support. The decree further awarded Nathan $500.00 per month in alimony for the first 18
months following the decree and $300.00 per month for the following 6 months thereafter. The
decree did not order Nathan to pay any amount towards work-related childcare expenses as Nathan
held out that he was unemployed at the time of the agreement and entry of the decree. The decree
ordered Kara to pay the first $480.00 of medical and dental expenses for the minor child each
calendar year with the remainder to be divided equally thereafter. The decree required Kara to
provide Nathan with copies of all medical or dental bills along with evidence as to what had been
paid by insurance, at least twice per year.
On June 16, 2011, Kara filed a complaint to modify the decree, requesting an increase of
Nathan’s child support, as well as an increase in Nathan’s obligation for work-related daycare
expenses. On January 5, 2012, the district court ordered that Nathan’s child support be increased
to $616.00 per month. The order remained silent as to Kara’s requested increase in work-related
daycare expenses.
On July 18, 2012, Kara filed another complaint to modify the decree. Kara requested that
her alimony obligation to Nathan be terminated, Nathan be ordered to pay his share of Ronan’s
medical and dental expenses, and Nathan be ordered to pay for a portion of the work-related
childcare expenses. A summons was filed with the complaint and was returned without service on
August 29, 2012. Kara filed a second summons that day, which was returned October 9, 2012,
without return of service. On October 23, 2012, Kara filed an amended complaint to modify
requesting her spousal support obligation be terminated, establishing Nathan’s obligation for
work-related childcare expenses, increasing Nathan’s obligation for medical and dental expenses,
and awarding Kara for unreimbursed medical and dental expenses already incurred. Service of the
amended complaint was perfected on November 20, 2012, Nathan signed the receipt of service.
Kara filed a second amended complaint for modification on August 2, 2013. On September
2, 2013, Nathan filed an answer and counterclaim in response to Kara’s second amended
complaint. Nathan requested that his child support obligation be reduced or eliminated. On October
2, 2013, Kara filed an answer to Nathan’s counterclaim. In addition, Nathan filed a “motion to cite
Plaintiff in contempt” requesting the district court to hold Kara in contempt due to her alleged
willful failure to pay her spousal support obligation, as well as her failure to provide the proper
documentation to Nathan for Ronan’s medical and dental expenses.
Trial was set for the matter on December 18, 2014. Both parties filed multiple pretrial
motions, as well as motions to continue trial. We will address the rulings of the district court with
regard to the error assigned on these motions more thoroughly in the analysis of this opinion. Trial
on all matters pending commenced on June 29, 2015, and concluded on August 21, 2015. Various
posttrial motions were filed, which we will address as needed in the analysis below.
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Nathan testified at trial that he was 39 years old and had a bachelor’s of fine arts from the
Art Institute of Chicago. Since his graduation, Nathan has always worked as a professional
photographer. Nathan testified that he was offered a position at Land of Nod, a business selling
home goods, textiles, and toys marketed towards children, on March 8, 2011. The position was a
full-time salaried position with an annual income of $55,000.00. Nathan accepted the position on
March 18, 2011. Nathan did not tell Kara about the employment offer or his acceptance prior to
April 11, 2011, the date of their divorce. Nathan testified that he represented he was unemployed
on the date of the divorce.
Nathan began his employment with Land of Nod on May 3, 2011. Nathan worked for the
company by taking photos for their websites, catalogs, and other promotional photos. Nathan
testified that he underwent an employment evaluation on January 11, 2013. Nathan was informed
that he repeatedly displayed negative behavior, had angry outbursts, and could not control his
temper. Nathan was informed that if he did not correct these behaviors, he would be terminated
without further notice. After a disagreement with a supervisor, Nathan was terminated from his
position from Land of Nod on August 30, 2013. Nathan testified that he received two weeks’
severance pay. Nathan then applied for and received unemployment benefits until November 2013.
The district court received Exhibits 61 and 63, which were the depositions of Barbara
Kramer and Sue Cortesi. Kramer was the “manager of photo producer” at the Land of Nod at the
time of Nathan’s termination. Cortesi was the director of human resources at Land of Nod at the
time. Kramer testified that she was Nathan’s manager. Kramer testified that she conducted
performance reviews with Nathan during his employment. Kramer testified that during
performance reviews Kramer noted concerns about Nathan’s attitude and anger issues, and
informed Nathan that if he did not change his behavior, he would be terminated. Kramer testified
that the most recent performance evaluation where Nathan was informed of these issues was March
5, 2013. Kramer testified that she was not working the day Nathan was terminated. Cortesi testified
that she was present during Nathan’s termination. Cortesi testified that she provided managerial
support during Nathan’s termination.
Nathan testified that he was hired by Crate & Barrel in November 2013. Crate & Barrel
and Land of Nod are both owned by the same parent corporation. Nathan’s starting pay was $21.00
per hour and he worked 40 hours per week. In January 2014, Nathan was reassigned as a “seasonal
short-term associate” with the company. His hourly pay was increased to $44.00 per hour, but his
workable hours were capped at 1,000 hours per year. Nathan’s taxable income was $53,853.00 for
2012, $50,559.00 for 2013, and $37,527.33 for 2014. Nathan testified that after he was terminated
from Land of Nod, he never applied for a full-time position. Nathan has never looked for work
outside of professional photography. He has worked on a sporadic basis as a freelance
photographer. However, he has not actively marketed his photography business. He currently lives
in Minnesota with his parents.
Kara testified that she is employed as a pastor. Kara receives health insurance through her
employer. Kara has primary physical custody of the parties’ son, Ronan. Before the parties were
divorced, but during their separation, they took Ronan to Dr. Tim Riley, a child therapist. Ronan
was diagnosed with attention deficit hyperactivity disorder (ADHD) after meeting with Dr. Riley.
Around December 2011, Dr. Riley additionally diagnosed Ronan with Asperger’s Syndrome,
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which falls within the autism spectrum. Three other doctors have diagnosed Ronan with
Asperger’s Syndrome, including Dr. Judith Bothern. Ronan received treatment with Dr. Bothern
for nearly a year after the divorce, then resumed treatment with Dr. Riley thereafter. Dr. Riley was
not in Kara’s insurance network, but the original decree allowed Kara to seek out of network
treatment, if necessary.
Ronan has been prescribed Concerta, a medication for his ADHD. For his Asperger’s
syndrome, Ronan has required treatment in the form of neurofeedback. Dr. Riley is the person that
performs this treatment, which involves connecting electrodes from a cap on the child’s head to
an electroencephalograph to monitor how the child’s brain is processing different stimuli. The goal
of neurofeedback is to develop long-term positive responses to external stimuli without the need
for medication. Ronan began his neurofeedback therapy in January 2014. Ronan receives
neurofeedback once per week, with the possibility of two sessions per week in the future. Kara
testified that the therapy costs $120 per session, and is not covered by insurance. Kara testified
that she believes Ronan has absolutely benefitted from neurofeedback.
Kara testified that she attempts to provide Ronan with in-network treatment whenever
possible. Kara’s employer switched insurance providers in 2014. Ronan had been prescribed
Concerta every month since 2011, which cost $49.99 per month. In January 2014, Ronan was
prescribed Clonidine, in addition to Concerta, for his ADHD. The Clonidine cost $2 per month
when it was initially prescribed. When Kara’s insurance provider was changed in July 2014, the
out of pocket cost for Concerta increased to $245.00 per month while the Clonidine remained at
$2.00 per month with the new insurer. After approximately 11 months, Kara was able to again
change insurance companies, which dropped the cost of Concerta to $35.00 per month.
Since the parties’ divorce, Kara testified that she has attempted to keep Nathan informed
of all of Ronan’s medical necessities. She testified that she had not received a single response from
Nathan regarding her communications. Kara also testified that Nathan has never asked Kara
questions about any of Ronan’s treatments, medications, or medical providers. Nathan testified
that he does not believe “the onus is on me” to inquire about Ronan’s medical needs. Kara testified
that she had submitted invoices to Nathan for medical and dental expenses, which have gone
unanswered. Nathan testified that he does not believe the accuracy of the invoices Kara provides.
Kara stated that she paid her alimony obligation through June 2012. Kara also stated that she
stopped paying alimony in order to pay for Ronan’s medical needs, as she could not afford to pay
both obligations.
Following trial, the district court took the matter under advisement and entered an order on
January 21, 2016. The district court ordered Nathan to pay child support in the amount of $616.00
per month. The court further ordered Nathan to pay 42 percent of the work-related childcare
expenses. The district court found that Kara owed spousal support to Nathan in the amount of
$2300.00. The district court found that Nathan owed $5,123.10 for his share of the unreimbursed
medical expenses incurred. The district court ordered Nathan to pay Kara $2,832.10, which was
the difference between Kara’s unpaid spousal support obligation and Nathan’s unpaid portion of
the noncovered medical expenses for Ronan. The court awarded Kara $3,900.00 in attorney fees.
Finally, the district court terminated Kara’s spousal support obligation, effective November 30,
2012. Finally, the district court dismissed Nathan’s contempt action against Kara.
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III. ASSIGNMENTS OF ERROR
Nathan assigns, consolidated, restated, and reordered, that the district court erred by (1)
determining it had subject matter jurisdiction over the action; (2) sustaining and overruling various
pretrial motions; (3) refusing to reduce Nathan’s child support obligation; (4) terminating Kara’s
spousal support obligation; (5) ordering Nathan to contribute to childcare expenses; (6) entering
judgment against Nathan for medical expenses; (7) refusing to hold Kara in contempt of court; (8)
overruling various posttrial motions; and (9) ordering Nathan to pay Kara’s attorney fees. Kara
assigns on cross-appeal that the district court erred by failing to order Nathan to pay an upward
deviation in child support in lieu of paying for his share of noncovered medical expenses.
IV. STANDARD OF REVIEW
Modification of a dissolution decree is a matter entrusted to the discretion of the trial court,
whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of
discretion by the trial court. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). 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. Stephens v. Stephens, 297 Neb. 188, 899 N.W.2d 582 (2017).
V. ANALYSIS
1. NATHAN’S APPEAL
(a) Jurisdiction
Nathan argues the district court lacked subject matter jurisdiction over the modification
action because Kara failed to serve Nathan with the original complaint. Nathan argues that Kara’s
complaint was dismissed as a matter of course six months after it was filed. Nathan argues that as
a result of Kara’s lack of service upon him, the modification action should be dismissed for lack
of subject matter jurisdiction.
When a jurisdictional question does not involve a factual dispute, the issue is a matter of
law. Kelliher v. Soundy, 288 Neb. 898, 852 N.W.2d 718 (2014). An appellate court reviews
questions of law independently of the lower court’s conclusion. Id.
Neb. Rev. Stat. § 25-217 (Reissue 2016) provides, “An action is commenced on the date
the complaint is filed with the court. The action shall stand dismissed without prejudice as to any
defendant not served within six months from the date the complaint was filed.” Neb. Ct. R. Pldg.
§ 6-1115 expands upon § 25-217:
A party may amend the party’s pleading once as a matter of course before a responsive
pleading is served or, if the pleading is one to which no responsive pleading is permitted,
the party may amend it within 30 days after it is served. Otherwise a party may amend the
party’s pleading only by leave of court or by written consent of the adverse party, and leave
shall be freely given when justice so requires. A party shall plead in response to an amended
pleading within the time remaining for response to the original pleading or within 10 days
after service of the amended pleading, whichever period may be longer, unless the court
otherwise orders.
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Nathan argues that we must look to the federal rule for guidance, and that under the federal
rule, an amendment to an original pleading is prohibited until the opposing party has filed a
responsive pleading. See, Fed. R. Civ. P. § 15(a). We disagree as the federal rule is not substantially
similar to the Nebraska rule. Upon our review, it is clear that Neb. Ct. R. Pldg. § 6-1115 allows a
party to amend its pleading once as a matter of course before a responsive pleading is served. Here,
Nathan did not serve a responsive pleading to the original complaint for modification, which was
filed on July 18, 2012. Kara filed an amended complaint for modification on October 23, 2012.
The amended complaint was served on Nathan on November 20, 2012. Not only did Nathan
receive service within six months of the amended complaint, he was served within six months of
the original complaint. Therefore, we find the district court did not err in retaining jurisdiction over
the modification.
(b) Pretrial Motions
Nathan argues the district court erred in sustaining and overruling a litany of pretrial
discovery motions. Nathan also argues that the district court erred in denying his motion for
judgment on the pleadings. He also argues that the district court erred by granting a motion to
continue filed by Kara.
Decisions regarding discovery are directed to the discretion of the trial court, and will be
upheld in the absence of an abuse of discretion. Moreno v. City of Gering, 293 Neb. 320, 878
N.W.2d 529 (2016). The party asserting error in a discovery ruling bears the burden of showing
that the ruling was an abuse of discretion. Id. An appellate court reviews a judge’s ruling on a
motion to continue for an abuse of discretion. Id. A motion for judgment on the pleadings is
properly granted when it appears from the pleadings that only questions of law are presented. In
re Trust Created by Hansen, 274 Neb. 199, 739 N.W.2d 170 (2007).
The main purpose of the discovery process is to narrow the factual issues in controversy
so that the trial is efficient and economical. Hill v. Tevgot, 293 Neb. 429, 879 N.W.2d 369 (2016).
The discovery process helps the litigants conduct an informed cross-examination and avoid tactical
surprise, a circumstance which might lead to a result based more on legal maneuvering than on the
merits of the case. Id. Nathan argues, among other things, that the district court erred in ordering
Nathan to respond to discovery requests, ordering telephonic depositions, and granting a motion
to continue trial.
Kara sought discovery related to Nathan’s employment history subsequent to the decree of
dissolution. Kara sought these records in order to demonstrate that a material change in
circumstance had occurred because Nathan had gained meaningful employment which was not
disclosed at the time of the initial decree. The district court ordered Nathan to provide responsive
answers to Kara’s requests for admissions and ordered the telephonic depositions of Kramer and
Cortesi. Our review of the record reveals the district court ordered Nathan to reply to discovery
requests because Nathan was not responding in a manner that would allow the parties to narrow
the factual issues in controversy for trial. The district court ordered the trial be continued in order
for the discovery to be completed. Upon our review of the record, Nathan has failed to show that
any pretrial ruling by the district court constituted an abuse of discretion.
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As for the ruling on the motion for judgment on the pleadings, Neb. Rev. Stat. § 42-365
(Reissue 2016) states “[u]nless amounts have accrued prior to the date of service of process on a
petition to modify orders for alimony may be modified or revoked for good cause shown.” The
timing of the service of process affects the modification of alimony payments. The amended
complaint was served on Nathan on November 20, 2012. Consequently, the district court had the
authority to revoke un-accrued alimony payments from the date of service of process, November
20, 2012, going forward for good cause shown. The district court properly denied the motion for
judgment on the pleadings because questions of fact existed.
(c) Child Support Obligation
Nathan argues the district court erred in not reducing his child support obligation from
$616.00 per month to $459.00 per month. Nathan argues that he has demonstrated a material
change in circumstances since the entry of the last modification order due to his termination from
a higher paying job, his mounting costs of litigation, and the time he has taken time off from work
in order to care for his ill mother.
The Nebraska Supreme Court has held that when a party requesting a modification of child
support has experienced a reduction in income due to his or her own wrongdoing, that party is not
entitled to have the request for modification granted. Incontro v. Jacobs, 277 Neb. 275, 761
N.W.2d 551 (2009). In Incontro, the father voluntarily relinquished his interests in a business. Id.
The Nebraska Supreme Court determined that the father’s income decreased due to his own
personal wishes, and not as a result of unfavorable or adverse conditions in the economy, his
health, or other circumstances that would affect his earning capacity. Id.
The record is clear that Nathan was warned prior to his termination that if he did not change
his behavior, he would be terminated without further notice. Additionally, Nathan testified that he
was busy enough working the part-time hours he currently worked. The district court found that
Nathan experienced a reduction in income due to his own wrongdoing and denied Nathan’s request
for a reduction of his child support obligation. Upon our review of the record, we find that the
district court did not abuse its discretion in failing to reduce Nathan’s child support obligation.
(d) Contribution to Childcare Expenses
Nathan argues the district court erred by ordering him to contribute to childcare expenses
because Kara did not demonstrate a material change in circumstance since the previous
modification order of January 2012. Nathan argues that since Kara requested a modification of her
work-related childcare expenses in her first complaint for modification, and the January 2012
modification order was silent with respect to childcare expenses, Kara must demonstrate a material
change in circumstance from the time of the prior modification order.
The case of Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009), best addresses the
circumstances where as here, a prior modification was attempted, but was unsuccessful. In Metcalf,
Kenneth Metcalf sought to reduce his spousal support obligation a second time after the district
court rejected his first attempt to do so. The district court found that Kenneth was required to
demonstrate that a material change of circumstance had occurred since the prior order was entered
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denying modification. A divided panel of this court affirmed that decision. Metcalf v. Metcalf, 17
Neb. App. 138, 757 N.W.2d 124 (2008). The Nebraska Supreme Court affirmed as follows:
We determine that in cases where there has been a previous attempt to modify support, the
court must first consider whether circumstances have changed since the most recent request
for modification. But when considering whether there has been a material and substantial
change in circumstances justifying modification, the court will consider the change in
circumstances since the date of the last order establishing or modifying [spousal support].
In other words, a judgment for [spousal support] may be modified only upon a showing of
facts or circumstances that have changed since the last order granting or denying
modification was entered. But once some change has been established since the last
request, the analysis focuses on the change in circumstances since [spousal support] was
originally awarded or last modified. We adopt this rule because it recognizes the force of
res judicata; modification will be considered only when there has been a change in
circumstances since the last request for modification. But if there has been no change,
modification is not justified, because the request is essentially the same as the last request.
278 Neb. at 266, 769 N.W.2d at 392.
Applying this two part analysis to the present case leads us to conclude that the district
court did not abuse its discretion in determining that Nathan should be required to pay a portion of
Ronan’s childcare expenses. First, we note that payment of childcare expenses do lie in the nature
of support and are addressed in § 4-210 of the Nebraska Child Support Guidelines. Next, we note
that in Kara’s June 16, 2011, complaint for modification she did request that Nathan contribute to
Ronan’s childcare expenses. Unfortunately, the record is unclear regarding the circumstances
surrounding that action. The complaint to modify filed June 16, 2011, alleged only generally that
“the parties’ incomes have changed such that application of the Nebraska Child Support Guidelines
would result in a variation by 10 percent or more upward of the current child support
obligation. . . .” No specific allegations of fact are made. The complaint prays for an increase in
child support and the establishment of a childcare obligation for Nathan. Nathan did not answer or
appear at the modification trial which took place in front of a referee. Following the hearing, the
district court entered an order finding that a material change in circumstance had been proven, but
mimicked the general language of the complaint as to the factual basis for its findings. We note
that the order was drafted by Kara’s former counsel. No finding was made as to the specific facts
adduced that supported the court’s findings. The court then went on to raise Nathan’s child support
obligation from $156.00 to $616.00 per month. However, the order was silent with regard to
childcare expenses.
This lack of a record makes our analysis more difficult, but not impossible. From the
evidence adduced at trial on the present complaint to modify, it is apparent that the June 2011
complaint was filed upon Kara becoming aware that Nathan had found employment. The property
settlement agreement incorporated into the decree of dissolution contemplated that child support
and childcare expense would be revisited upon Nathan obtaining employment and it appears Kara
acted upon learning of Nathan’s job with Land of Nod.
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We are unsure of why an award of childcare was not awarded in the first modification
action given that (1) evidence would have existed to support it; and (2) Nathan did not contest that
proceeding. Nonetheless, pursuant to the holding in Metcalf, Kara must demonstrate a material
change in circumstance since her last attempt to modify Nathan’s childcare obligation in order to
receive relief. We find that she has done so. First, the evidence received at trial demonstrates that
while Kara became aware of Nathan’s acquisition of employment shortly after the original decree
was entered, she did not become aware that Nathan had accepted that employment prior to signing
the property settlement agreement that recited that he was unemployed. That information first
became known to her through discovery in the present action. Second, the evidence adduced at
trial herein demonstrated that Ronan’s medical condition will require ongoing treatment and that
due to his condition, he will require continued childcare services. Ronan was born in 2004 and is
of such an age that his need for childcare would normally be reaching its end. However, the
testimony was clear that his safety cannot be assured if he is left unattended. Therefore, we believe
that the record does demonstrate a material change in circumstance not known or contemplated at
the time of the prior modification order. The evidence presented at trial demonstrating that this
extended period of childcare would be required is a new development which would not have been
known or presented at the time of the first modification trial and the January 2012 modification
order.
Having found that a material change in circumstance has occurred since the last order of
modification was entered, we next address the change in circumstances since no division of
childcare expenses was ordered in the original decree. We again note that the modification order
was silent on this issue. At the time of the decree, the district court was under the impression that
Nathan did not have and had not secured employment. The evidence at trial herein demonstrated
that Nathan has had gainful employment and maintains an earning capacity at least equal to that
which he had had when he worked for Land of Nod. Therefore, we cannot find that the district
court abused its discretion in finding that Nathan should pay a share of the childcare expenses
incurred by Kara. We further find that the district court did not abuse its discretion in determining
the amount to be paid or setting the effective date of this obligation.
(e) Termination of Spousal Support
Nathan argues the district court erred in terminating Kara’s spousal support obligation
since she failed to prove a material change in circumstance since the entry of the previous
modification order in January 2012. Nathan also argues that the district court erred in terminating
Kara’s spousal support obligation because she willfully refused to pay her obligation. Nathan
argues that this is tantamount to “unclean hands.”
A judgment for spousal support may be modified only upon a showing of facts or
circumstances that have changed since the last order granting or denying modification was entered.
Metcalf, supra. But once some change has been established since the last request, the analysis
focuses on the change in circumstances since spousal support was originally awarded or last
modified. Id. Modification will be considered only when there has been a change in circumstances
since the last request for modification. Id.
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Kara did not request modification of her spousal support in her prior complaint for
modification in June 2011. At the time of the entry of the initial decree in April 2011, Nathan had
represented that he was unemployed. In the June 2011 action, Kara only requested an increase of
Nathan’s child support, as well as an increase in Nathan’s obligation for work-related childcare
expenses. Ultimately, the uncontested modification order entered in January 2012 only modified
Nathan’s child support obligation. Therefore, the current modification of spousal support can focus
on a material change in circumstances between the initial decree in April 2011 and Kara’s second
amended complaint filed on August 2, 2013. The district court determined that good cause existed
to terminate Kara’s spousal support obligation effective November 30, 2012. Upon our review, we
find that the district court did not abuse its discretion in terminating Kara’s spousal support
obligation.
With respect to Nathan’s “unclean hands” argument, the Nebraska Supreme Court has
stated, “[u]nder the doctrine of unclean hands, a person who comes into a court of equity to obtain
relief cannot do so if he or she has acted inequitably, unfairly, or dishonestly as to the controversy
in issue.” Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002). The district court did not
address Nathan’s unclean hands argument in its order. However, our record demonstrates that
Nathan represented to the district court before the entry of the initial decree that he was
unemployed. Nathan had signed the decree stating as much, but had already accepted an offer of
employment from the Land of Nod. His representation to Kara and the court that he was
unemployed can only be reasonably viewed as deception. Nathan intentionally misrepresented his
employment in order to reduce his child support obligation and to obtain spousal support from
Kara. Nathan’s claim of unclean hands on Kara’s part is simply without merit as his own deceptive
conduct set into play the course of events leading to Kara’s inability to pay her spousal support
obligation. This is particularly true given Nathan’s failure to pay his share of Ronan’s medical
expenses.
(f) Judgment for Medical and Dental Expenses
Nathan argues that the district court erred by ordering him to pay for past medical and
dental expenses for Ronan. Nathan argues that since Kara did not provide him with invoices twice
yearly, as required by the initial decree, the district court erred by ordering him to pay for the
expenses.
The initial decree required Nathan to pay for one-half of noncovered medical and dental
expenses incurred on behalf of Ronan after Kara paid the first $480.00 of said medical bills per
year. The district court received into evidence Exhibits 57 and 74, which detailed Ronan’s
numerous medical bills since the date of the decree. Kara testified that she attempted to
communicate with Nathan about Ronan’s medical needs and initially provided information on
medical costs, but her efforts were largely ineffective. Nathan agreed that he should provide for
Ronan’s medical care, but that the onus to engage on the subject with Kara should be on Kara.
Nathan argues that since Kara has not provided him the requisite documentation ordered in the
initial decree, he should not be required to pay for the expenses. However, nothing in the decree
relieves Nathan of his obligation pay these expenses based on Kara’s failure to provide
documentation of the expenses in a timely manner. Upon our review of the record, we find that
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the district court did not abuse its discretion in ordering Nathan to pay for unreimbursed medical
and dental expenses incurred on Ronan’s behalf. The testimony and documentary evidence
demonstrates that Kara actually incurred these expenses and that she attempted to communicate
with Nathan, but to no avail. Therefore, we find that district court did not abuse its discretion.
(g) Dismissal of Show Cause Order
Nathan argues the district court erred in dismissing the order to show cause against Kara
because she willfully failed to pay her spousal support obligation and failed to notify Nathan prior
commencing healthcare for Ronan.
A party is not in contempt of court for a failure to comply with an order directing them to
pay money unless it is shown that they had sufficient ability to pay, and that their refusal was
willful, contumacious, and without just and reasonable grounds. Malec v. Malec, 196 Neb. 533,
244 N.W.2d 82 (1976). Kara testified that she could no longer pay spousal support and pay for
Ronan’s required medical care. Kara also testified that she was unable to effectively communicate
with Nathan because she could not reach him or he would not engage with her on the subject. The
district court determined that Kara’s failure to pay her spousal support obligation was not willful.
While we do not condone a party refusing to pay their spousal support obligation, we find that
given the evidence adduced the district court did not abuse its discretion in determining Kara’s
failure was not willful or contumacious. Similarly, we find that given the evidence adduced, the
district court did not abuse its discretion in determining that Kara was not in willful and
contumacious contempt of the decree regarding parental communication.
(h) Motion to Recuse
Nathan argues the district court erred by failing to recuse itself because the district court
judge in this case had filed a complaint with the counsel for discipline against Nathan’s attorney.
Nathan also argues the district court erred by failing to recuse itself because Kara’s attorney during
the trial was appointed to the district court bench while the case was submitted to the court.
First we note that the motion to recuse was made after the district court entered the
modification order on January 21, 2016, and its order nunc pro tunc on January 26, 2016. The
motion was made orally at the beginning of a hearing held on February 26, 2016, on Nathan’s
motion for a new trial and Kara’s motion to alter or amend. Counsel for Nathan was allowed to
proceed on the oral motion. Evidence consisting of copies of a letter written by the trial judge to
the counsel for discipline dated February 5, 2016, the written notice of investigation sent by the
counsel for discipline to Nathan’s counsel dated February 12, 2016, and the written response of
Nathan’s counsel to the counsel for discipline dated February 17, 2016, were received. These were
received as Exhibits 79 through 81. The oral motion to recuse sought only to recuse the initial trial
judge from hearing the posttrial motions on file. The district court took the motion under
advisement and then issued a written order on March 4, 2016, denying the motion to recuse. On
March 18, 2016, the parties’ motions were heard. Both parties’ motions were overruled by way of
written order entered August 16, 2016.
In Blaser v. County of Madison, 285 Neb. 290, 826 N.W.2d 554 (2013), the Nebraska
Supreme Court stated:
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The Nebraska Revised Code of Judicial Conduct requires that “[a] judge shall hear and
decide matters assigned to the judge, except when disqualification is required. . . .” The
code goes on to state that “[a] judge shall disqualify himself or herself in any proceeding
in which the judge’s impartiality might reasonably be questioned. . . .” We have previously
stated that a trial judge should recuse himself or herself when a litigant demonstrates that
a reasonable person who knew the circumstances of the case would question the judge’s
impartiality under an objective standard of reasonableness, even though no actual bias or
prejudice is shown.
285 Neb. at 299-300, 826 N.W.2d at 526 (citations omitted).
We note that the district court sealed Exhibits 79-81 which we have unsealed, reviewed,
and then resealed. We note that the letter from the district judge to the counsel for discipline is not
labeled as a complaint, nor does it concern any actions of counsel in this matter. It begins by saying,
“I feel that I must advise you of a recent incident occurring in my courtroom,” and ends by
recounting that the judge believed he had a duty to report the incident, but left any disposition of
the matter “to the Counsel’s discretion.”
In our review of the exhibits, we see no reason to question the trial court’s determination
that recusal was not required. There is no indication of bias or prejudice on the part of the trial
court in the record nor is there any basis to believe that the court’s impartiality as to this case had
been or would be affected by counsel’s action in a separate case. We cannot find that a reasonable
person hearing the circumstances of the case would question the judge’s impartiality.
Nathan also argues the district court erred by failing to recuse itself because Kara’s attorney
during the trial was appointed to the district court bench while the case was submitted to the court.
We first note that this issue was not raised before the district court. However, our review of the
case law does demonstrate that the Nebraska Supreme Court has substantively reviewed issues of
recusal raised for the first time on appeal. See, Blaser, supra. Neb. Rev. Stat. § 24-739 (Reissue
2016) provides that a judge is automatically disqualified where the judge acted as an attorney for
either party in an action or proceeding. This is not the case before us. Nathan cites no case law,
and we can find none, which prohibits a court from sitting on a case upon which a current colleague
had previously acted as an attorney for a party. Therefore, we find the district court did not abuse
its discretion by refusing to recuse itself.
(i) Attorney Fees
Nathan argues the district court erred in awarding Kara attorney fees. Nathan also argues
the district court erred in not ordering Kara to pay a portion of Nathan’s attorney fees.
In an action for modification of a decree for dissolution, the award of attorney fees is
discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the
absence of an abuse of discretion. Furstenfeld v. Pepin, 23 Neb. App. 673, 875 N.W.2d 468 (2016).
The award of attorney fees depends on multiple factors that include the nature of the case, the
services performed and results obtained, the earning capacity of the parties, the length of time
required for preparation and presentation of the case, customary charges of the bar, and the general
equities of the case. Burcham v. Burcham, 24 Neb. App. 323, 886 N.W.2d 536 (2016).
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Upon our de novo review, we find the district court did not abuse its discretion in awarding
attorney fees to Kara and denying attorney fees to Nathan. Nathan’s conduct in this matter most
certainly extended the length of the trial court proceedings, as well as the time and effort required
by Kara’s counsel. Many of the issues raised in this appeal would have been avoided had Nathan
informed Kara of his acceptance of employment at the time of the entry of the original decree.
Under the general equities of the case, including Nathan’s conduct leading up to and following the
entry of the decree support the district court’s decision.
2. KARA’S APPEAL
Kara argues that the district court erred in refusing to order an upward deviation from the
Nebraska Child Support Guidelines in order to pay for the extraordinary medical costs incurred by
the parties’ minor child.
Kara cites to Hoover v. Hoover, 2 Neb. App. 239, 508 N.W.2d 316 (1993), which analyzes
deviations from the child support guidelines. We quoted Paragraph C, (now § 4-203) of the
guidelines, which provides in part:
In the event of a deviation, the reason for the deviation shall be contained in the findings
portion of the decree or order; or worksheet 5 should be completed by the court and filed
in the court file. Deviations from the guidelines are permissible under the following
circumstances:
1. when there are extraordinary medical costs of either parent or child;
2. when special needs of a disabled child exist. . . .
We went on to reason as follows:
As we review the guidelines in conjunction with the applicable sections of the child support
statutes, we believe a reasonable interpretation requires us to find that past expenses, such
as for medical care and other reasonable and necessary expenses, are to be considered in
the modification of the amount of child support payable in the future. Deviations from the
guidelines are also permitted “whenever the application of guidelines in an individual case
would be unjust or inappropriate.” Thus, deviation from the guidelines to provide for a
percentage of future expenses incurred is permissible in individual cases when strict
adherence to the guidelines would be unjust or inappropriate.
Id. at 246-47, 508 N.W.2d at 321-22 (citation omitted).
We concluded that the trial court’s decision was supported by the record, particularly given
the parties’ agreement at oral argument that if the father in that case was to be made responsible
for future unreimbursed medical expenses, said expenses would be paid by way of an upward
deviation in child support in lieu of a percentage of the actual expenses. Under our de novo review
of the record, we find the district court did not abuse its discretion in denying Kara’s request for
an upward deviation from the child support guidelines. We first note that there is no agreement
between the parties for Nathan to pay increased child support in lieu of his share of unreimbursed
medical expenses. Second, we note that while Nathan has not stepped up to pay his share of
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medical expenses voluntarily, Kara has not consistently provided him with proof of these expenses
along with payments made by herself and her insurance carriers. Therefore, while we do not
condone Nathan’s laissez-faire approach to Ronan’s healthcare needs, we cannot say that the trial
court at this juncture should have required him to pay increased child support in lieu of future
reimbursements for medical expenses incurred.
VI. CONCLUSION
We find that the district court did not err by determining it had jurisdiction over the action.
The district court did not err by sustaining and overruling various pretrial motions. We find that
the district court did not err by refusing to reduce Nathan’s child support obligation. Additionally,
we find that the district court did not err by terminating Kara’s spousal support obligation. The
district court did not err by ordering Nathan to contribute to childcare expenses. We find that the
district court did not err by entering judgment against Nathan for medical expenses. The district
court did not err by refusing to hold Kara in contempt of court. We find that the district court did
not err by overruling Nathan’s motion to recuse the district court judge. We find that the district
court did not err by ordering Nathan to pay Kara’s attorney fees. Finally, we find that the district
court did not err by failing to order Nathan to pay an upward deviation for his share of noncovered
medical expenses.
AFFIRMED.
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