Opinion
No. A-11-502.
02-07-2012
STACEY LOUISE SMITHPETER, NOW KNOWN AS STACEY LOUISE WALLING, APPELLEE, v. RICHARD BRENT SMITHPETER, APPELLANT.
Michael W. Heavey, of Colombo & Heavey, P.C., L.L.O., for appellant. Edith T. Peebles and Wm. Oliver Jenkins, of Brodkey, Cuddigan, Peebles & Belmont, L.L.P., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
SMITHPETER V. SMITHPETER
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).
Appeal from the District Court for Sarpy County: MAX KELCH, Judge. Affirmed.
Michael W. Heavey, of Colombo & Heavey, P.C., L.L.O., for appellant.
Edith T. Peebles and Wm. Oliver Jenkins, of Brodkey, Cuddigan, Peebles & Belmont, L.L.P., for appellee.
IRWIN, SIEVERS, and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Richard Brent Smithpeter appeals from the order of the district court for Sarpy County finding him in contempt of court for violating the provision in the parties' divorce decree concerning reimbursement for medical expenses and awarding attorney fees to Stacey Louise Smithpeter, now known as Stacey Louise Walling. Because we find no error in the district court's decision, we affirm. Pursuant to authority granted to this court under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
BACKGROUND
The parties are the parents of a severely disabled son, who was born in September 2000. He suffers from hypoxic ischemic encephalopathy complicated by cerebral palsy and seizure disorders, cortical blindness, and osteoporosis. He cannot talk and is quadriplegic. Because of his disabilities, he is confined to a wheelchair. His growth is stunted. At the time of trial, he was 10 years old, was 4 feet 2 inches tall, and weighed 55 pounds.
The parties were divorced in September 2004, and Stacey was granted physical custody with the parties' sharing joint legal custody. The decree required the parties to discuss significant matters regarding their son's health and medical care, school or general education related issues, and behavioral or discipline issues which may affect both households, but gave Stacey the final decision regarding these issues in the event the parties could not agree. The decree also provided for a division of unreimbursed medical expenses, including "medically necessary equipment or paraphernalia." Specifically, Richard was to reimburse Stacey 70 percent of the unreimbursed costs (less the first $480 to be paid by Stacey) "within 14 days of a request for payment that accompanies documentation demonstrating the expense and that it is reimbursable."
In the division of property, Stacey was awarded a 2003 minivan with an attached wheelchair lift. The lift was a "bolt-on" device that did not require any modification to the minivan. It was a power-operated lift. The operation of the lift required the removal of the passenger seat from the central portion of the minivan to make room for the wheelchair and the lift itself, which folded into the minivan when not in use. When Richard and Stacey purchased the 2003 minivan, they considered other options, including a van with a lowered floor, but because of their son's size, there was no need for a van with a lowered floor at that time. Both Richard and Stacey could lift him easily at that time.
In 2010, Stacey determined that a different van was necessary, because the parties' son was now hitting his head on the top of the minivan when using the wheelchair lift. In April 2010, Stacey purchased a 2010 Chrysler minivan with a conversion package that cost $19,672. Stacey did not consult with Richard prior to the purchase of the new van. The new conversion package included a lowered floor in the front and central sections of the van, removable seats for the driver and front seat passenger, a powered infloor ramp, and a "kneeling" feature, which is a hydraulic suspension that lowers the entire vehicle to reduce the ramp angle. Stacey received a $5,000 credit toward the purchase price under a government waiver program and a $1,000 rebate from the manufacturer. She sold the 2003 Dodge minivan for $4,900. At the time, the old van was in good condition and the old lift worked fairly well.
On July 11, 2010, Stacey's attorney sent a certified demand letter to Richard accompanied by the van purchase contract, which letter set forth deductions from the purchase price of $5,000 for the government waiver allowance and $480 for Stacey's initial obligation. The letter asked Richard to pay $9,934.40 (70 percent of $19,672 less $5,000 and the first $480 of uninsured medical expenses attributable to their son) to Stacey within 21 days. The letter referenced the possibility of the $1,000 manufacturer rebate, but the amount was not deducted from Stacey's calculations. Richard claimed that he did not receive this letter. A second demand letter was delivered to Richard by a court reporter on December 13, which letter Richard admitted that he did receive.
Because Richard did not reimburse Stacey pursuant to the letter, Stacey filed a verified complaint for contempt on January 24, 2011.
The record shows that Richard made several requests via e-mail for additional information from Stacey regarding the medical necessity of the new van. Stacey admittedly did not provide any additional information regarding the van to Richard. Rather, Stacey responded by telling Richard that he could talk to their son's doctor. Stacey testified that communication with Richard was very difficult given his past verbal abuse toward her. Richard took Stacey's deposition in May 2011. During the course of the deposition, Richard became aware for the first time of the problem of their son's bumping his head when entering the old van.
After taking Stacey's deposition in May 2011, Richard did further investigation and determined that a suitable van conversion package could have been purchased for $16,000. Richard offered to pay Stacey $6,664 as his share of this amount ($16,000 less the $5,000 waiver, the $1,000 rebate that Stacey eventually received, and Stacey's $480 obligation). Stacey did not accept this offer, and a trial ensued.
Following the contempt trial, the district court entered a judgment of contempt on May 18, 2011. The court determined that the purchase of a different van was medically necessary, that Richard was in contempt for failing to abide by the terms of the decree, that Richard should pay $6,664 to Stacey, and that Richard should pay $4,888 toward Stacey's attorney fees. Richard subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Richard asserts, consolidated and restated, that the district court erred in (1) finding him in contempt of court and (2) awarding attorney fees to Stacey.
STANDARD OF REVIEW
An appellate court, reviewing a final judgment or order in a contempt proceeding, reviews for errors appearing on the record. Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010). When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. A trial court's factual finding in a contempt proceeding will be upheld on appeal unless the finding is clearly erroneous. Id.
On appeal, a trial court's decision awarding or denying attorney fees will be upheld absent an abuse of discretion. Armstrong v. County of Dixon, 282 Neb. 623, _____ N.W.2d ___ (2011). A judicial abuse of discretion exists when a judge, acting within effective limits of authorized judicial power, elects to act or refrain from action, but the selected option results in a decision which is untenable and unfairly deprives the litigant of a substantial right or a just result. Mandolfo v. Mandolfo, 281 Neb. 443, 796 N.W.2d 603 (2011).
ANALYSIS
Contempt.
Richard asserts that the district court erred in finding him in contempt of court. When a party to an action fails to comply with a court order made for the benefit of the opposing party, such act is ordinarily a civil contempt, which requires willful disobedience as an essential element. Smeal Fire Apparatus Co. v. Kreikemeier, supra. "Willful" means the violation was committed intentionally, with knowledge that the act violated the court order. Id.
The requirements of the parties' divorce decree are clear. Richard argues that his refusal to pay the amount requested by Stacey was in good faith and did not amount to "willful disobedience" due to Stacey's failure to discuss the purchase with him ahead of time and her refusal to provide further explanation of the purchase in response to his request for more information. Stacey responds by pointing out that the decree does not require discussion prior to medical expenditures, including medically necessary equipment, and that she satisfied her obligation under the decree by sending a request for payment with accompanying documentation to Richard. Richard also argues that his resistance to Stacey's demand was excusable given the finding that her demand was shown to be excessive since the court did not award her the full amount requested.
While the district court did ultimately accept Richard's calculation of the reasonable expense for the van purchase, Richard nevertheless failed to pay the expense until ordered to do so, despite Stacey's compliance with the requirements of the decree. Clearly, the parties have communication issues, but the specific provision that Richard violated did not require communication other than as specified and complied with. Further, there is nothing in the record to show why Richard could not have discussed their son's needs with his doctor or used other means to determine the medical necessity of the new van in a more expeditious manner. Richard was aware of their son's condition and aware of the requirements of the decree. The district court did not err in finding Richard in contempt. The court's decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Richard's assignment of error is without merit.
Attorney Fees.
Richard asserts that the district court erred in awarding attorney fees to Stacey. A party may recover attorney fees and expenses in a civil action only when a statute permits recovery or when the Nebraska Supreme Court has recognized and accepted a uniform course of procedure for allowing attorney fees. Eikmeier v. City of Omaha, 280 Neb. 173, 783 N.W.2d 795 (2010). Neb. Rev. Stat. § 42-370 (Reissue 2008) allows for the recovery of attorney fees against those found in contempt of a divorce decree. See, also, Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010) (reasonable attorney fees can be awarded in contempt proceeding). Customarily, attorney fees and costs are awarded only to prevailing parties or assessed against those who file frivolous suits. Neb. Rev. Stat. § 25-824 (Reissue 2008); Noonan v. Noonan, 261 Neb. 552, 624 N.W.2d 314 (2001).
With regard to this assignment of error, Richard makes several arguments. He first argues that since the finding of contempt was in error, fees should not be awarded. See Smeal Fire Apparatus Co., supra (award of attorney fees in contempt proceeding requires finding of contempt). Of course, we have already determined that the finding of contempt was not in error. This argument is without merit.
Richard next argues that even if the contempt finding is not set aside, awarding fees was an abuse of discretion because (1) Stacey refused to discuss the van purchase before the fact and refused to explain it after the fact, thereby necessitating incurring fees, and (2) she was not a prevailing party. Clearly, Stacey was a prevailing party. The district court found Richard in contempt of the divorce decree and awarded Stacey $6,664, a little over two-thirds of her original request for reimbursement of $9,934.40. In such circumstances, it cannot be rationally argued that Stacey was not a prevailing party. See Sneckenberg v. Sneckenberg, 9 Neb. App. 609, 616 N.W.2d 68 (2000) (party who was awarded nearly full amount of requested past-due premiums was prevailing party). And, as we discussed above, Stacey was not required to discuss the van purchase with Richard and Richard could have used other means to determine whether the new van was medically necessary.
Finally, Richard argues that the court erred in receiving the attorney fees affidavit into evidence over his objections on the grounds of relevance and foundation. In the affidavit, Stacey's attorney states that she and members of her law firm rendered legal services to Stacey in the contempt action from June 30, 2010, to the date of trial as set forth in the attached billing statement, which statement shows fees totaling $4,988.50 and costs totaling $1,187.61. The billing statements set forth details of the legal services provided and costs expended, including the date, a description of the cost or service, hours expended, amount charged, and the initials of the individual providing each particular legal service. At trial, Stacey testified that she had reviewed the billing statements, that she believed them to be a fair and accurate representation of work done on her behalf, and that the fees were fairly and reasonably charged. The district court received the exhibit into evidence over Richard's objections. Clearly, the affidavit with the attached billing statement was relevant to the issue of the amount of attorney fees to be awarded, if any. Further, there was sufficient foundation for the admission of the affidavit. If an attorney seeks a fee for his or her client, that attorney should introduce at least an affidavit showing a list of the services rendered, the time spent, and the charges made. Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011). The district court did not err in receiving the exhibit into evidence.
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 general equities of the case. Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008). The district court did not award the full amount of fees requested, limiting the fees to those incurred after Richard became aware of the van purchase in December 2010. We find no abuse of discretion in the district court's award of attorney fees. Richard's assignment of error is without merit.
CONCLUSION
The district court did not err in finding Richard in contempt and did not abuse its discretion in the award of attorney fees.
AFFIRMED.