Moore v. Moore
| Decision Date | 22 March 2019 |
| Docket Number | No. S-18-273.,S-18-273. |
| Citation | 924 N.W.2d 314,302 Neb. 588 |
| Parties | Lucinda D. MOORE, Appellee, v. Thayne D. MOORE, Appellant. |
| Court | Nebraska Supreme Court |
John D. Icenogle, of Bruner Frank, L.L.C., for appellant.
Heather Swanson-Murray, of Swanson Murray Law, L.L.C., P.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, FUNKE, Papik, and Freudenberg, JJ.
The ex-husband appeals from the district court’s order that he reimburse his ex-wife for half of certain "work related daycare expense[s]" for the parties’ three children, as required by the dissolution decree, and as required by Neb. Ct. R. § 4-214 (rev. 2016) of the Nebraska Child Support Guidelines, which states that "[c]are expenses for the child" shall be allocated to the obligor parent. The ex-husband asserts that none of the expenses that the ex-wife testified she incurred as a means of providing adult supervision for her children while she worked, consisting of day camps, overnight camps, lessons, sitters, and transportation to and from the same, qualified as "work related daycare expense[s]" or "[c]are expenses for the child." He argues they were instead merely "activities." The ex-husband also asserts that the district court erred in awarding to the ex-wife $ 3,500 in attorney fees when the court found that the ex-husband’s complaint to modify, which he voluntarily dismissed after the parties had their respective experts conduct psychological/custody evaluations of the children, was not frivolous. Finally at issue is whether the district court erred in ordering the ex-husband to pay $ 2,500 toward the ex-wife’s expert’s evaluation fees, when the parties had stipulated that they would each pay their own expert’s fees.
A decree of dissolution of the marriage of Lucinda D. Moore and Thayne D. Moore was entered on October 1, 2014. The decree ordered that Lucinda be given sole physical and legal custody over the parties’ three minor children. One child was born in 2002, one in 2005, and one in 2006. Thayne was ordered to pay child support and "50% of said work related daycare expenses ... within 10 days of being provided a receipt." He was also ordered to share in the children’s medical expenses. Lucinda and Thayne were to inform each other of "activities or events" where a parent may participate. The order did not contain a provision specifically relating to payment of "activities or events."
On September 10, 2015, Thayne filed a complaint to modify the decree due to a material change of circumstances. Thayne alleged that Lucinda was "unwilling to co-parent" with him and had been inflicting "substantial mental abuse" on their children. He asked the court to modify the decree by awarding sole physical and legal custody of the children to him. Lucinda generally denied the operative allegations of the complaint and asked that it be dismissed.
Lucinda moved for a "psychological/custody evaluation" of the children. Thayne joined the motion for a psychological/custody evaluation and nominated an expert to conduct the evaluation, proposing that both parties share jointly in the expense. Lucinda proposed Dr. Theodore DeLaet as the expert to conduct the evaluation instead. On May 2, 2016, the court granted the motions for psychological/custody evaluations but ordered the parties to stipulate who should conduct the evaluation and how the costs of the evaluation should be divided.
Lucinda and Thayne were unable to reach an agreement on a single expert to perform the evaluation. They instead jointly stipulated that they would each use his or her own expert to conduct independent evaluations of the children and that they would each be solely responsible for his or her respective expert’s fees and expenses. On June 3, 2016, the court issued an order approving the stipulation and providing that Lucinda and Thayne could have evaluations conducted by their respectively chosen experts, with Lucinda and Thayne to be solely responsible for their respective expert’s fees and expenses.
On January 30, 2017, Lucinda filed a "Motion to Reduce Daycare Expenses to Judgment," in which she asked the court to determine daycare expenses owed by Thayne to Lucinda and reduce such expenses to a judgment against Thayne.
On February 15, 2017, the day before the scheduled hearing on Thayne’s complaint for modification, Thayne moved to dismiss his complaint without prejudice. The motion to dismiss was made after the psychological/custody evaluations had been conducted. DeLaet’s evaluation had not been available to Thayne until January 17, 2017. Neither Thayne’s nor Lucinda’s expert recommended a change in custody.
The court granted Thayne’s motion to dismiss the same day that the motion was filed. The court ordered each party to bear his or her own costs. The court did not at that time take up Lucinda’s motion to reduce daycare expenses to judgment.
On February 21, 2017, Lucinda moved for an award of attorney fees incurred as a result of the dismissed complaint to modify and for such further relief as the court deemed equitable. Thayne responded with a motion, by "Special Appearance," to dismiss Lucinda’s motion for attorney fees on the ground that it was the filing of a new lawsuit without service of process.
By an order dated June 19, 2017, the court denied Lucinda’s motion for attorney fees. It still had not resolved her motion to reduce daycare expenses to judgment, however.
Lucinda timely moved to vacate, alter, or amend the June 19, 2017, order on the ground that she had been denied an opportunity to be heard on her motion for attorney fees. On July 19, the court altered and amended its June 19 order.
The court took stock of Lucinda’s unresolved motion to reduce daycare expenses to judgment and concluded that it was not a proper motion within the modification proceedings brought by Thayne. The court explained that the question of daycare expenses was not raised in the complaint or in Lucinda’s answer to the complaint. The court concluded that the "motion" was a request for relief, which required a complaint and service of process. Thus, the court did not consider the motion as being properly before it.
In contrast, the court considered Lucinda’s motion for attorney fees to be incidental to Thayne’s motion to dismiss. Further, the court considered Thayne’s motion to dismiss to be a general appearance. It overruled Thayne’s motion to dismiss Lucinda’s motion for attorney fees.
The court altered and amended its June 19, 2017, order to state:
The court did not at that time rule on Lucinda’s motion for attorney fees.
On August 1, 2017, Lucinda filed a "Complaint/Application to Reduce Daycare Expenses to Judgment" and served process. She asked for attorney fees and costs associated with the motion and such other relief as the court deemed just and equitable.
Evidentiary hearings were conducted to address Lucinda’s motion for attorney fees and her complaint/application to reduce daycare expenses to judgment.
In relation to her complaint/application to reduce daycare expenses to judgment, Lucinda sought reimbursement for what she described as "daycare expenses" incurred during 2015 and 2016 when the children were not in school. She testified that she had arranged "activities ... that would serve as day care."
She chose the activities both for their enrichment and for the level of supervision they provided. Some of the activities were within walking or biking distance from the house, and the children would transport themselves to and from the activity. Others required transportation, and Lucinda incurred some expenses in paying young adults to transport the children or to watch them for shorter periods of time.
Lucinda explained that the children were not of an age where she thought it suitable for them to all be home by themselves the entire time she was at work. Lucinda said that the oldest child would occasionally watch the younger two for shorter periods of time, but she did not believe it appropriate to have her oldest child watch her younger siblings full time during Lucinda’s work day every day of school break. The oldest child was apparently 13 years old by the summer of 2016.
Lucinda testified that she generally worked from 6 a.m. to 2:30 p.m. but that on certain days, she worked from 6 a.m. to noon. Lucinda explained that her schedule fluctuated. She testified that all the expenses she sought reimbursement for were incurred while she was at work.
The expenses Lucinda sought reimbursement for as "daycare" fell roughly under five categories: day camps, overnight camps, lessons, sitters, and transportation. Lucinda testified that the expense of sending the children to a local daycare, where they had been cared for before, would have been significantly more, and she provided documentation of that fact.
Specifically, Lucinda sought 50 percent reimbursement for childcare services for her two younger children offered through the Kearney, Nebraska, public school system and run by school staff, which expenses totaled $ 130 in 2015 and $ 175 in 2016.
She sought reimbursement for three different volleyball camps which cost a total of $ 210 in 2015 ($ 90 for the oldest and $ 120 for the younger two) and a total of $ 120 in 2016 (for all three children).
She also sought reimbursement for 50 percent of the $ 130 fee incurred for a basketball camp in 2016. Lucinda sought 50 percent reimbursement for $ 375.90...
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