Philmon v. Philmon, 091421 NECA, A-20-823

CourtCourt of Appeals of Nebraska
JudgePirtle, Chief Judge, and Moore and Welch, Judges.
Writing for the CourtMoore, Judge.
PartiesDanielle M. Philmon, appellee, v. Carlos W. Philmon, appellant.
Docket NumberA-20-823

Danielle M. Philmon, appellee,

v.

Carlos W. Philmon, appellant.

No. A-20-823

Court of Appeals of Nebraska

September 14, 2021

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).

Appeal from the District Court for Douglas County: James M. Masteller, Judge.

Andrea Finnegan McChesney, of M|F Law Omaha, for appellant.

Justin A. Quinn for appellee.

Pirtle, Chief Judge, and Moore and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Moore, Judge.

I. INTRODUCTION

Carlos W. Philmon appeals from an order of the District Court for Douglas County, which found him in contempt for failing to pay his portion of the medical and childcare expenses for the parties' minor child. For the following reasons, we affirm.

II. STATEMENT OF FACTS

Carlos and Danielle M. Philmon were married in December 2006. One child was born of the marriage. On November 16, 2012, a decree was entered dissolving the marriage. Pursuant to the decree, Carlos and Danielle were ordered to divide all nonreimbursed medical expenses and work-related childcare expenses on behalf of the minor child with Carlos paying 28 percent and Danielle paying 72 percent.

On August 7, 2020, Danielle filed a motion asking for Carlos to appear and show cause why he should not be held in contempt for failing to reimburse Danielle for medical expenses totaling $406.48 and daycare expenses totaling $920.08. An evidentiary hearing was held on November 13. The following evidence was received at the hearing.

Danielle testified that as the minor child's primary parent, she had incurred medical and daycare expenses over the years and had sent invoices of the payments to Carlos via both regular and certified mail. She also sent Carlos certified letters requesting reimbursement for his portion of the expenses. Two certified mail receipts, dated April 4, 2014, and November 15, 2014, were entered into evidence showing two pieces of certified mail were received, one by Carlos and one by Carlos's girlfriend. A certified letter dated April 18, 2017, was also entered into evidence with stamps indicating it had been unclaimed. An unsigned return receipt for the April 2017 letter as well as the certified mail request were also entered into evidence.

On June 15, 2020, Danielle's attorney sent an email to Carlos's attorney seeking reimbursement of medical, dental, and daycare expenses. A copy of the email was entered into evidence. The email stated that Carlos had not reimbursed Danielle for his share of daycare bills totaling $920.08, medical bills totaling $406.48, and dental bills totaling $59.22. The email contained attachments with summaries of all the expenses. Danielle testified that she did not receive any response to that email.

Danielle provided the court with copies of the summary of unreimbursed daycare expenses from 2013 through 2018, medical expenses from 2017 through 2020, and dental expenses from 2013 through 2019, including receipts for all of the charges, all of which were entered into evidence. Danielle also testified that the daycare expenses were incurred to allow her to work, and that the expenses were low because she received a discount for working at the school the child attended. The discount was reflected on statements that Danielle provided. However, due to a policy change at her workplace beginning in 2018, Danielle also incurred expenses for the minor child to attend before and after school care, resulting in an increase in daycare expenses. Danielle testified that as of the date of the hearing, Carlos had not paid her anything for the expenses nor did he offer to pay or set up a payment plan.

Carlos also testified and acknowledged that pursuant to the decree he was required to pay 28 percent of medical and work-related childcare expenses incurred for the minor child. Carlos claimed that he had always followed the decree. Carlos testified that in the past he had paid expenses for the minor child for participation in various activities and said that "[a]nytime that something has been brought to my attention that needs to be taken care of, I have taken care of it." Carlos also testified that it was his understanding that he could not claim the income tax exemptions for the minor child if he was behind on any support payments, and that because he had claimed the exemption in all of the available years since 2013 except one, he could not have known that he was behind on payments.

Carlos contested Danielle's testimony, claiming that she had not sent proof of the expenses she incurred over the years and that she was lying to the court. Carlos denied receiving any certified mail regarding expenses over the years. Carlos admitted that he did receive the email sent on June 15, 2020, via his attorney and claimed that it was the first he had ever been notified of the expenses. After receiving the email, Carlos did not make any attempt to reimburse Danielle because he was waiting for the court proceedings to take place. He also alleged that the June 2020 email did not contain a summary of the dental expenses, of which he was only recently made aware.

Carlos testified that Danielle had filed a protection order against his girlfriend. Carlos believed that Danielle's decision to file a contempt action was in response to the protection order being denied after a hearing.

Carlos testified that he did not believe that Danielle made the payments or incurred the expenses that she claimed in the summaries she provided to the court. Carlos thought that Danielle did not incur any childcare expenses as a school employee. Carlos said that because he personally did not see Danielle make the payments, he could not affirm that she made them and when he was asked if he believed she was lying about making payments he stated, "It wouldn't be the first time." However, Carlos later admitted that Danielle paid for some of the expenses because the billing statements showed the expenses having been paid with Danielle's credit card.

At the time of the hearing, Carlos was employed by the city of Omaha and he expected to earn between $35, 000 and $40, 000 in 2020.

Danielle requested attorney fees in the amount of $1, 317.76 and provided an affidavit of the fees she incurred as part of this action.

Following the receipt of evidence, the court made the following statement from the bench regarding the testimony of the parties: I do find [Danielle's] testimony to be credible; that she did provide notice to [Carlos] of the expenses that were being incurred and paid for by her and has over a number of years done so. Notwithstanding that, [Carlos] has failed to pay the 28 percent that is required by the decree of dissolution.

The court went on to find that Carlos willfully failed to comply with the decree and stated that it was going to order Carlos to pay the $1, 434.94 arrearage plus $1, 317.76 for Danielle's attorney fees. When asked by the court how much he was able to pay toward the arrearage, Carlos responded that he was able to pay $1, 500 immediately and the balance at $150 per month. The court then imposed a sanction of 60 days in jail to begin August 10, 2021, with the ability of Carlos to purge the sanction by paying $1, 500 toward the arrearage within 7 days and $150 per month thereafter, to be paid by August 10, 2021. A written order...

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