Becher v. Becher

• Decision Date: 25 February 2022
• Docket Number: S-20-737.
• Citation: 970 N.W.2d 472,311 Neb. 1
• Parties: Sonia BECHER, appellee, v. Mark A. BECHER, appellant.
• Court: Nebraska Supreme Court

311 Neb. 1

970 N.W.2d 472

Sonia BECHER, appellee,

v.Mark A. BECHER, appellant.

No. S-20-737.

Supreme Court of Nebraska.

Filed February 25, 2022

Adam E. Astley, of Astley Putnam, P.C., L.L.O., for appellant.

Sally A. Rasmussen, of Mattson Ricketts Law Firm, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Papik, J. Mark A. Becher appeals a district court order that found him in contempt for failure to pay various expenses following his divorce from Sonia Becher. He claims that he should not be required to pay those expenses, the associated interest, or attorney fees. We modify the provisions of the contempt order pertaining to certain expenses but otherwise affirm.

I. BACKGROUND

Mark and Sonia were married in 1991. They had three children together and amassed considerable property. The dissolution of their marriage in 2015 has resulted in a great deal of litigation, including multiple contempt proceedings and three prior appeals. See, Becher v. Becher , 302 Neb. 720, 925 N.W.2d 67 (2019) ; Becher v. Becher , 299 Neb. 206, 908 N.W.2d 12 (2018) ; Becher v. Becher , 24 Neb. App. 726, 897 N.W.2d 866 (2017), reversed in part 299 Neb. 206, 908 N.W.2d 12 (2018).

Mark now appeals a contempt order, entered on September 10, 2020. This order arose from Sonia's motion for citation of contempt filed January 16, 2017; her supplemental motion filed July 3, 2019; and the district court's corresponding orders to show cause. On appeal, Mark challenges aspects of the contempt order pertaining to the children's 2016 medical expenses, the children's future medical expenses, real estate taxes, costs associated with a wilderness therapy program for one of the children, interest, and Sonia's attorney fees.

II. ASSIGNMENTS OF ERROR

Mark assigns, consolidated and restated, that the district court erred in (1) finding him in contempt for failure to pay for a portion of (a) the children's 2016 medical expenses, (b) real estate taxes, and (c) the wilderness therapy program, and requiring him to pay for his share of those expenses as part of the purge plan; (2) requiring Mark to pay for his share of the children's future medical expenses as part of the purge plan; (3) assessing interest; and (4) ordering Mark to pay Sonia's attorney fees.

III. 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. Vyhlidal v. Vyhlidal , 309 Neb. 376, 960 N.W.2d 309 (2021).

Mark argues that in this case we should deviate from the foregoing standard of review and not give the trial court's factual findings the deference our clear error standard would ordinarily require. Such deference is not appropriate, he asserts, because the district court's contempt order mirrors a proposed order submitted by Sonia's counsel.

We have no direct proof of the purported word-for-word match between a proposed order and the district court's order: Mark acknowledges Sonia's proposed order is not in our record. Undeterred by the absence of the order in the record, Mark claims the "tone" of the district court's order makes it "readily apparent" that Sonia's counsel must have drafted it. Brief for appellant at 20. We need not, however, spend time assessing Mark's claim. Even if the district court adopted a proposed contempt order submitted by Sonia's counsel in its entirety, we would not depart from our usual standard of review. Findings prepared by counsel and adopted verbatim by the trial judge are formally the judge's, and the adoption of a party's proposed findings does not require an appellate court to set aside the deference ordinarily given to the trial judge's factual findings. See Wayne L. Ryan Revocable Trust v. Ryan , 308 Neb. 851, 957 N.W.2d 481 (2021). See, also, Anderson v. Bessemer City , 470 U.S. 564, 572, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985) ("even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous").

Other standards of review pertaining to specific assignments of error are discussed in the analysis section below.

IV. ANALYSIS

1. CHILDREN'S 2016 MEDICAL EXPENSES AND FUTURE MEDICAL EXPENSES

(a) Factual Background

The dissolution decree ordered Mark to pay 90 percent of the children's medical expenses that were not reimbursed by insurance, after the first $480 per year, within 10 days of proper presentation of the bill.

Sonia's 2017 motion for citation of contempt and her 2019 supplemental motion alleged Mark had not paid his share of the children's 2016 medical expenses presented to him by Sonia.

At trial, Sonia put on evidence that Mark had not reimbursed her $864.76 for his share of the children's 2016 medical expenses. The parties later stipulated, however, that Mark had paid $886.05 into the district court on March 15, 2017, just prior to the first day of trial. The district court's receipt described the payment as "Judgment (General)." Mark testified that he paid this sum for the children's 2016 medical expenses.

In its order entered September 10, 2020, the district court found Mark in contempt of the provisions of the decree requiring him to pay the 2016 medical expenses within 10 days of proper presentation by Sonia. Addressing Mark's 2017 payment of $886.05 into the court, the district court observed that neither the amount nor the description of that payment tied it to the 2016 medical expenses, which had not been reduced to a general judgment, and that therefore, the evidence did not support a finding that Mark paid them. The district court continued that even if this eventual payment was intended as payment of the 2016 medical expenses, it did not prevent a finding of contempt. Citing an earlier order finding Mark in contempt, entered on May 11, 2016, the district court characterized Mark's failure to pay his share of the children's 2016 health care expenses pursuant to the terms of the decree as part of an established pattern of recalcitrance. It then stated:

Because the [contempt order entered May 11, 2016,] was not sufficient to persuade [Mark] to pay his share of the children's medical expenses on time, or at all, additional language in the purge plan will obligate [Mark] to pay all future medical expenses within 10 days of proper presentation until the youngest child turns 19. Hopefully, this will eradicate the need to file serial contempt actions for non-payment of the children's health care expenses.

The district court committed Mark to a sentence of 60 days in jail, which sentence would remain suspended so long as Mark complied with the purge plan. The purge plan required Mark to pay the 2016 health care expenses of $864.76 within 10 days, plus interest. Also as part of the purge plan, the district court ordered, "From the date of this order until the last of the parties’ minor children reaches the age of 19, Mark ... shall pay his share of the children's future health care expenses within 10 days of proper presentation of the same by [Sonia], as ordered in the parties’ decree." The parties’ youngest child was born in 2008.

(b) Analysis

(i) 2016 Medical Expenses

Given the evidence and the parties’ stipulation, Mark asserts that the district court erred in finding him in contempt for failing to pay the children's 2016 medical expenses and not crediting him with the $886.05 he paid toward those expenses. Sonia concedes that Mark should be given credit for the $886.05 that the parties stipulated he paid into the district court in 2017 and that the provision of the purge plan ordering Mark to pay $864.76 for 2016 medical expenses should be eliminated, but she contends that no other modifications of the order are warranted.

We accept Sonia's concession that Mark should be given credit for the payment the parties stipulated he paid into the district court and that the provision of the purge plan ordering Mark to pay those medical expenses should be eliminated.

As for Sonia's contention that Mark should still be held in contempt for his late payment of the children's 2016 medical expenses, we disagree. 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. Johnson v. Johnson , 308 Neb. 623, 956 N.W.2d 261 (2021). When Mark paid the 2016 medical expenses, however late, there was nothing more that could be done to fulfill the requirements of the decree. The subsequent citation of contempt, therefore, could not serve the purpose of the civil contempt remedy and was an abuse of discretion. Accordingly, we modify the contempt order to strike paragraph 17, finding Mark in contempt for failing to pay those expenses, and paragraph 44(b), incorporating those expenses into the purge plan, as well as the reference to paragraph 44(b) in paragraph 45.

(ii) Future Medical Expenses

Mark also argues that the district court erred in requiring him to pay his share of the children's future medical expenses as part of the purge plan. Mark argues that the provision does not allow consideration of his present ability to comply or factors that might lead to noncompliance.

We conclude it was an abuse of discretion to require Mark to pay his share of future medical expenses as part of the purge plan. Although we recognize the district court's intent to craft a purge plan that would "preserve and enforce" Sonia's rights under the decree, see Johnson , 308 Neb. at 630, 956 N.W.2d at 266, the future medical provision otherwise conflicts with the principles of civil contempt.

As we read the district...