McCullough v. McCullough
| Decision Date | 26 April 2018 |
| Docket Number | Nos. S-16-1086,S-16-1187,S-17-037.,s. S-16-1086 |
| Citation | 910 N.W.2d 515,299 Neb. 719 |
| Parties | Wallace R. MCCULLOUGH, appellant, v. Michelle A. MCCULLOUGH, appellee. |
| Court | Nebraska Supreme Court |
William D. Gilner, Omaha, for appellant.
Edith T. Peebles and Tosha Rae D. Heavican, Omaha, of Brodkey, Peebles, Belmont & Line, L.L.P., for appellee.
In these three consolidated appeals, Wallace R. McCullough appeals orders entered by the district court for Sarpy County in the proceeding for the dissolution of his marriage to Michelle A. McCullough. Wallace appeals, inter alia, an order of contempt for failing to make childcare and property division equalization payments, an order of contempt for failing to pay child support, and an order setting the amount of a supersedeas bond. We dismiss the appeal of the order regarding the amount of the supersedeas bond, and we affirm the district court's orders in the two other appeals.
On March 22, 2010, the district court for Sarpy County entered a decree dissolving Wallace and Michelle's marriage. In the decree of dissolution, the district court ordered, inter alia, that legal and physical custody of the couple's children be awarded to Michelle, subject to Wallace's parenting time; that Wallace pay Michelle child support of $3,005 per month; that Wallace pay a share of childcare expenses incurred by Michelle; and that Wallace pay Michelle $552,124.89 to equalize the property division, payable at a rate of $50,000 per year plus interest until paid in full.
On June 12, 2012, Michelle filed a complaint for modification of the decree of dissolution. She requested, inter alia, that Wallace's parenting time be supervised and that proceeds from the sale of certain property be reassigned to her. On July 30, Wallace filed an answer and a counterclaim in which he requested, inter alia, that he be awarded sole custody of the children. On August 6, Michelle filed an answer to Wallace's counterclaim in which she requested the counterclaim be dismissed. On August 7, Wallace filed an amended answer and counterclaim in which he further requested, inter alia, a change in his child support obligation based on a change in income and that he be given credit for amounts totaling $268,400 that he alleged should be treated as having been paid toward the property settlement. On January 21, 2014, Wallace filed another amended answer and counterclaim in which he made additional allegations and requests.
On June 8, 2016, Michelle filed a verified complaint for contempt in which she alleged that Wallace had failed to pay child support, childcare expenses, and property equalization payments required under the decree of dissolution. The district court entered an order on June 13 for Wallace to show cause why he should not be held in contempt based on Michelle's complaint. Wallace entered a denial, and the court set a final hearing on the matter.
After the hearing on Michelle's complaint for contempt, the district court entered an order on September 30, 2016. In the order, the court stated that Wallace had asked to continue the contempt proceedings with regard to child support payments on the basis that the amended counterclaim he had filed on January 21, 2014, in which he sought a reduction of his child support obligation, was still pending. The court noted that Wallace had not prosecuted that counterclaim; nevertheless, the court granted a continuance of the portion of the contempt proceeding that pertained to child support. The court scheduled a trial for December 8, 2016, on Wallace's amended answer and counterclaim, as well as on Michelle's June 12, 2012, complaint for modification. The court stated that it would consider the child support portion of the complaint for contempt at the December 8 trial. The court further stated that on February 21, 2014, it had ordered Wallace to undergo an evaluation in connection with his request for modification of the children's custody; the court ordered Wallace to submit the completed evaluation by October 17, 2016.
In addition to the foregoing, the September 30, 2016, order also stated that the court had heard testimony regarding the remaining portions of Michelle's contempt allegations against Wallace. The court then found Wallace to be in willful and contumacious violation of the decree of dissolution in two respects: (1) He had failed to pay required childcare expenses totaling $5,031.23, and (2) he had failed to pay property equalization installments, with interest, totaling $317,314.99. The court ordered Wallace to pay Michelle's attorney fees totaling $3,317.51. The court stated that the sums Wallace owed to Michelle totaled $325,663.73. The court set up a purge plan pursuant to which it ordered Wallace to pay $750 per month to the clerk of the court commencing October 1 and continuing on the first day of each month until the amount was paid in full. The court ordered that if Wallace failed to make a payment on or before the first day of the month, he would be jailed for 15 days but would be released if he remedied the deficit.
Wallace filed a motion for a new hearing or reconsideration of the September 30, 2016, order. On November 4, the district court denied the motion.
On November 17, 2016, Wallace filed a notice of appeal in which he stated his intent to appeal the September 30 and November 4 orders. That appeal is docketed as case No. S-16-1086.
On November 18, 2016, the district court held a hearing to consider a motion by Michelle to dismiss part of Wallace's counterclaim for modification of the decree of dissolution. Michelle argued that the counterclaim should be dismissed because Wallace had failed to comply with the court's February 21, 2014, order to undergo an evaluation and that he had failed to submit such evaluation by October 17, 2016, as required in the court's September 30 order. At the hearing, Wallace admitted the evaluation had not been completed, but he asserted that he had been confused as to the date by which the evaluation was to be submitted and that he had an evaluation scheduled for an unspecified date in December. Wallace further argued that because he had filed a notice of appeal on November 17 with regard to the court's September 30 and November 4 orders, all proceedings in this matter, including those issues set for trial on December 8, should be stayed pending the appeal.
On November 28, 2016, the court entered an order ruling on matters addressed at the November 18 hearing. The court stated that the September 30 order "dealt solely with the limited issues of contempt dealing with child care and property equalization." The court stated that although issues regarding contempt related to child support were to be heard on December 8, it had "separated the ... issues on contempt." The court assumed that the September 30 order was a final order for purposes of appeal, and it determined that "pending applications for modifications [of the decree of dissolution] or motions to dismiss portions of such applications are stayed pending the appeal." However, the court determined that it retained jurisdiction to enforce the September 30 contempt order, because Wallace had not asked the court to set a supersedeas bond, and it further determined that Michelle's "pending contempt action for enforcement of this Court's child support order is not stayed without posting a supersedeas bond."
On November 29, 2016, Wallace filed a motion to set a supersedeas bond pursuant to Neb. Rev. Stat. § 25-1916 (Reissue 2016). On November 30, the district court entered an order with respect to the supersedeas bond. At a hearing on the supersedeas bond, Wallace's attorney had argued that at the earlier September 14 contempt hearing, Wallace had testified that "he didn't have any assets or income at the present time" and that his net worth was less than $10,000. Wallace requested that "the bond amount be set at 50 percent of that amount." In its November 30 order, the court specifically rejected Wallace's request that the bond amount be set based on 50 percent of "personal assets which total less than $10,000.00." The court instead set a bond of $45,000 and stated that it had determined such amount based on the monthly purge payment Wallace was required to make pursuant to the September 30 contempt order, the monthly child support he was required to pay pursuant to the decree of dissolution, and the amount of time the court estimated the appeal of the September 30 order would take. The court stated that the hearing set for December 8 would "take place as scheduled unless or until [Wallace] posts bond with the Clerk of the District Court of Sarpy County."
On December 5, 2016, Wallace filed a notice of appeal in which he stated his intent to appeal the November 28 and November 30 orders. That appeal is docketed as case No. S-16-1187.
On December 8, 2016, the court held a hearing and entered an order ruling on Michelle's complaint for contempt with regard to child support. The court found Wallace to be in willful contempt of the portion of the decree of dissolution that required him to pay child support of $3,005 per month. The court ordered Wallace to be subject to a purge plan pursuant to which he would pay Michelle $2,000 of back child support per month, in addition to the $3,005 per month child support he was already required to pay, beginning January 1, 2017, and continuing the first of each month until back child support was paid in full. The court ordered that if Wallace failed to pay the required child support and the additional back child support on the first of each month, he would be "incarcerated no more than thirty (30) days each month." The court entered a separate money judgment against Wallace and in favor of Michelle for attorney fees and costs of $3,131.75.
On December 30, 2016, Wallace filed a pleading in which he made three motions. The pleading included the...
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