Hendrix v. Sivick
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Decisions
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of the Nebraska Court of Appeals
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657, 407 N.W.2d 747 (1987), overruled on other grounds,
Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782
N.W.2d 848 (2010); Hammond v. Hammond, 3 Neb. App. 536,
529 N.W.2d 542 (1995), overruled on other grounds, Smeal
Fire Apparatus Co. v. Kreikemeier, supra. In the case before
us, the juvenile court makes findings of suitability but does not
make an order either appointing Martha or removing the State
as guardian. Thus, the order makes no change in the status of
the child’s placement or guardian. This order, like the order in
a contempt proceeding making findings but imposing no sanction, is not a final, appealable order.
CONCLUSION
The juvenile court’s order made findings of Martha’s suitability as a potential guardian but did not remove the State or
appoint Martha as guardian. The order left that question for a
later day. Although the order was made in a special proceeding, it did not affect a substantial right of the State. Thus, it
was not a final, appealable order and we lack jurisdiction of
the instant appeal.
Appeal dismissed.
Marcena M. Hendrix, appellee, v.
Robert J. Sivick, appellant.
___ N.W.2d ___
Filed August 9, 2011. No. A-10-1174.
1. Divorce: Judgments: Appeal and Error. The meaning of a decree presents a
question of law, in connection with which an appellate court reaches a conclusion
independent of the determination reached by the court below.
2. Judges: Recusal: Appeal and Error. A motion to recuse for bias or partiality is
initially entrusted to the discretion of the trial court, and the trial court’s ruling
will be affirmed absent an abuse of that discretion.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
4. Courts: Jurisdiction. A court that has jurisdiction to make a decision also has
the power to enforce it by making such orders as are necessary to carry its judgment or decree into effect.
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5. Statutes: Intent: Words and Phrases. While the word “shall” may render a
particular statutory provision mandatory in character, when the spirit and purpose
of the legislation require that the word “shall” be construed as permissive rather
than mandatory, such will be done.
6. Child Support: Rules of the Supreme Court. The main principle behind
the child support guidelines is to recognize the equal duty of both parents
to contribute to the support of their children in proportion to their respective
net incomes.
7. Divorce: Modification of Decree: Child Support. The paramount concern and
question in determining child support, whether in the initial marital dissolution
action or in the proceedings for modification of decree, is the best interests of
the child.
8. Actions. Any doubt about whether a legal position is frivolous or taken in bad
faith should be resolved in favor of the one whose legal position is in question.
9. Appeal and Error. A party that assigns error in a proceeding must point out the
factual and legal bases that show the error.
10. Judges: Recusal. A trial judge should recuse himself or herself when a litigant
demonstrates that a reasonable person who knew the circumstances of the case
would question the judge’s impartiality under an objective standard of reasonableness, even though no actual bias or prejudice was shown.
Appeal from the District Court for Douglas County: Paul D.
Merritt, Jr., Judge. Affirmed.
Robert J. Sivick, pro se.
Edith T. Peebles and Jessica L. Finkle, of Brodkey, Cuddigan,
Peebles & Belmont, L.L.P., for appellee.
Irwin, Sievers, and Cassel, Judges.
Cassel, Judge.
INTRODUCTION
Robert J. Sivick appeals from a judgment entered against
him for his share of his child’s childcare and uninsured medical expenses, which expenses were incurred by his ex-wife,
Marcena M. Hendrix. Although Hendrix failed to submit documentation supporting childcare expenses on a monthly basis
as directed by the decree, we conclude that such failure did
not excuse Sivick’s obligation to reimburse her for his proportionate share. Finding no error in the other respects urged by
Sivick, we affirm.
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BACKGROUND
A decree filed in February 2005 dissolved the parties’ marriage. As pertinent to this appeal, the decree provides in part:
e. CHILD-CARE EXPENSES. The Court finds that
the parties shall pay child care expenses actually incurred
by [Hendrix] for employment purposes in proportion to
their net monthly incomes as the same is determined
for child support purposes. Accordingly, [Sivick] shall
reimburse [Hendrix] for said expenses in the following manner:
i. Monthly [Hendrix] shall submit to [Sivick] copies
of all statements and/or receipts for employment-related
daycare.
ii. Regardless of whether [Hendrix] has paid said statements or not, [Sivick] shall reimburse [Hendrix] for 23%
of the total monthly expenses incurred by [Hendrix]
within ten days.
....
j. UNINSURED MEDICAL/DENTAL EXPENSES.
[Hendrix] shall be responsible for the first $480.00 of
medical related expenses incurred on behalf of the minor
child annually. Thereafter, any uncovered medical, dental, orthodontia, pharmaceutical, or optical expenses shall
be paid 77% by [Hendrix] and 23% by [Sivick]. Said
medical expenses shall specifically include psychological
or therapeutic treatment of the parties’ minor daughter.
[Sivick] shall reimburse [Hendrix] within ten days of a
request that accompanies documentation demonstrating
the expense.
A December 2009 order of modification changed the allocation of childcare expenses and uninsured medical expenses
so that Hendrix was to pay 68 percent of such expenses and
Sivick was to pay 32 percent.
On March 12, 2010, Sivick filed a motion to recuse. The
court addressed the motion during a hearing on March 18 and
overruled it.
On May 28, 2010, Hendrix filed a “Verified Motion to
Liquidate to a Sum Certain Unreimbursed Expenses Owed to
Plaintiff by Defendant.” Hendrix alleged that for the years 2007
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to 2009, Sivick’s allocation of the expenses was $1,647.18
for childcare expenses and $2,203.62 for uninsured medical
expenses. Hendrix alleged that on May 17, 2010, she sent
Sivick a request for reimbursement of the childcare and uninsured medical expenses incurred from 2007 to date and that
she submitted receipts and other verifying documentation of
the expenses. She stated that Sivick refused to reimburse her
for expenses other than childcare expenses for March and April
2010 and a $20 medical bill incurred on April 2, claiming that
the request was untimely. Hendrix requested judgment in her
favor “in a sum certain representing the sums owed by [Sivick]
to [Hendrix].”
The district court conducted a hearing on July 13, 2010,
and received evidence. On November 8, the court entered
judgment in favor of Hendrix against Sivick in the amount of
$3,130.50.
Sivick timely appeals. 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.
ASSIGNMENTS OF ERROR
Sivick assigns that the court erred in entering a judgment
against him for childcare and uninsured medical expenses
because (1) the terms of the decree were not followed by
Hendrix in making demand for such expenses, (2) Hendrix
acted in bad faith in making and litigating the demand for such
expenses, (3) Hendrix presented insufficient evidence to support the judgment, and (4) the court acted in a biased manner
in favor of Hendrix and refused to recuse itself.
STANDARD OF REVIEW
[1] The meaning of a decree presents a question of law, in
connection with which an appellate court reaches a conclusion
independent of the determination reached by the court below.
Fry v. Fry, 18 Neb. App. 75, 775 N.W.2d 438 (2009).
[2] A motion to recuse for bias or partiality is initially
entrusted to the discretion of the trial court, and the trial court’s
ruling will be affirmed absent an abuse of that discretion.
Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010).
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ANALYSIS
Jurisdiction.
[3] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. Carmicheal v. Rollins,
280 Neb. 59, 783 N.W.2d 763 (2010).
[4] In Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d
821 (2006), a 2001 decree provided that the husband would
receive an additional $75,000 judgment if the wife sold or
conveyed certain marital property awarded to her. She later
conveyed the property to her new husband and herself in joint
tenancy, and the former husband thereafter filed a “Motion to
Determine Amounts Due,” requesting the court to determine
the amount due to him based upon the dissolution settlement
and decree. Id. at 922, 708 N.W.2d at 829. On appeal, the
wife argued that the proper method to satisfy the controversy
was through a separate action for declaratory judgment. The
Nebraska Supreme Court stated:
A district court, in the exercise of its broad jurisdiction over marriage dissolutions, retains jurisdiction to
enforce all terms of approved property settlement agreements. See Zetterman v. Zetterman, 245 Neb. 255, 512
N.W.2d 622 (1994). A court that has jurisdiction to make
a decision also has the power to enforce it by making
such orders as are necessary to carry its judgment or
decree into effect. Laschanzky v. Laschanzky, 246 Neb.
705, 523 N.W.2d 29 (1994). [The husband’s] motion to
determine amounts due was proper under the circumstances in this case.
Strunk v. Chromy-Strunk, 270 Neb. at 925, 708 N.W.2d at
831. See, also, Davis v. Davis, 265 Neb. 790, 660 N.W.2d 162
(2003) (characterizing ex-husband’s application to determine
amounts due pursuant to decree as attempt to enforce decree).
Under the circumstances of this case, we see nothing
improper about Hendrix’s motion to liquidate to a sum certain the unreimbursed expenses owed to her. Her motion
was an attempt to enforce the terms of the decree, over
which the district court had jurisdiction. Accordingly, we also
have jurisdiction.
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Terms of Decree.
Sivick first argues that the court erred in entering judgment
against him for childcare and uninsured medical expenses
pursuant to the terms of the decree because Hendrix did
not follow the terms of the decree in making demand for
those expenses.
The decree contained separate provisions for childcare
expenses and for uninsured medical expenses. The childcare
provision stated in part that “[m]onthly [Hendrix] shall submit to [Sivick] copies of all statements and/or receipts for
e
mployment-related daycare” and that Sivick shall reimburse
Hendrix for his percentage of the total monthly expenses
incurred by Hendrix within 10 days. The provision for uninsured medical expenses similarly stated that “[Sivick] shall
reimburse [Hendrix] within ten days of a request that accom
panies documentation demonstrating the expense,” but it did
not require Hendrix to submit copies of statements on a
monthly basis or other timeframe.
[5] Even though the evidence shows that Hendrix did not
submit any statements to Sivick on a monthly basis, we conclude that Sivick is not entitled to relief because the language
of the decree was directory. We are guided by principles of
statutory construction, which we find equally applicable here as
both the meaning of a statute and meaning of a decree present
questions of law. See, Ricks v. Vap, 280 Neb. 130, 784 N.W.2d
432 (2010) (meaning of statute is question of law); Strunk v.
Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006) (meaning of decree presents question of law). As a general rule, in
the construction of statutes, the word “shall” is considered
mandatory and inconsistent with the idea of discretion. Forgey
v. Nebraska Dept. of Motor Vehicles, 15 Neb. App. 191, 724
N.W.2d 828 (2006). Nonetheless, while the word “shall” may
render a particular statutory provision mandatory in character,
when the spirit and purpose of the legislation require that the
word “shall” be construed as permissive rather than mandatory,
such will be done. Id.
“‘If the prescribed duty is essential to the main objective of the statute, the statute ordinarily is mandatory and
a violation will invalidate subsequent proceedings under
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it. If the duty is not essential to accomplishing the principal purpose of the statute but is designed to assure order
and promptness in the proceeding, the statute ordinarily
is directory and a violation will not invalidate subsequent
proceedings unless prejudice is shown.’”
State v. $1,947, 255 Neb. 290, 297, 583 N.W.2d 611, 61617 (1998).
[6] The time limitation contained in the decree for Hendrix
to submit documentation of expenses to Sivick is not essential
to the purpose of the decree. The main principle behind the
child support guidelines is to recognize the equal duty of both
parents to contribute to the support of their children in proportion to their respective net incomes. Neb. Ct. R. § 4-201. Thus,
like in State v. $1,947, supra, it appears that the time limitation was included to ensure order and promptness. In Forgey,
this court concluded that the requirement that a peace officer
shall forward to the director a sworn report within 10 days was
directory and not mandatory and we noted that “there is no
sanction attached to an officer’s failure to file the sworn report
with the Department within 10 days.” 15 Neb. App. at 197,
724 N.W.2d at 833. Similarly, the decree does not state that
Hendrix forfeits her right to reimbursement for failing to send
a request and supporting documentation on a monthly basis.
Further, the provision for uninsured medical expenses did not
require Hendrix to submit documentation within any particular timeframe.
[7] Obviously, the parties should abide by the terms of the
decree, but it is the obligations of support and not the procedures for documentation which are critical to the child’s best
interests. It is in the best interests of the child for each parent
to pay his or her proportionate share of the child’s childcare
and uninsured medical expenses. This is best accomplished
by Hendrix’s timely submitting requests and documentation
for reimbursement and by Sivick’s then promptly paying his
share. Both requirements are enforceable by contempt proceedings, but as a practical matter, Sivick is unlikely to be aware of
expenses that Hendrix has incurred but failed to communicate
to Sivick. The paramount concern and question in determining
child support, whether in the initial marital dissolution action
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or in the proceedings for modification of decree, is the best
interests of the child. Gangwish v. Gangwish, 267 Neb. 901,
678 N.W.2d 503 (2004). The support of one’s children is a
fundamental obligation which takes precedence over almost
everything else. Id. Hendrix’s failure to timely provide such
documentation may be relevant to a court’s determination of
whether Sivick’s subsequent failure to timely pay is willful and
contumacious, but it provides no reason to entirely discharge
Sivick’s reimbursement obligation.
Although Hendrix did not timely submit her requests for
reimbursement to Sivick, we conclude that the court did not err
in ordering Sivick to reimburse her for Sivick’s proportionate
share of childcare and uninsured medical expenses.
Bad Faith.
[8] Sivick next contends that judgment should not have been
entered against him because Hendrix acted in bad faith in making and litigating the demand for reimbursement. He speculates
that Hendrix waited “for years before suddenly making a claim
for thousands of dollars in childcare and uninsured medical
expenses,” brief for appellant at 19, so that Sivick “would be
required to pay that claim within 10 days, . . . would likely not
be able to do so, and ultimately . . . would be held in contempt
and incarcerated,” id. at 20. Any doubt about whether a legal
position is frivolous or taken in bad faith should be resolved in
favor of the one whose legal position is in question. TFF, Inc.
v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 (2010). Although
we do not condone Hendrix’s failing to submit requests for
reimbursement in a timely manner, we cannot say that she
instituted this enforcement proceeding in bad faith. Hendrix
is entitled to reimbursement from Sivick for his share of the
expenses incurred on their child’s behalf, and it was Sivick’s
action in declining to pay the expenses that led to this proceeding. This assignment of error lacks merit.
Insufficient Evidence.
Sivick argues that Hendrix presented insufficient evidence to
support the judgment. During the July 13, 2010, hearing, the
court received into evidence exhibit 53, a 98-page document
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containing 8 pages of an “unreimbursed expenses grid” covering years 2007 to 2009 and various statements to support the
expenses. The court also received exhibit 58, an unreimbursed
expenses grid for expenses incurred in 2010, and exhibit 59,
composed of documents to support the expenses listed in
exhibit 58.
The district court’s calculation of Sivick’s contribution
amount for childcare expenses as of April 15, 2010, can be
summarized as follows:
2007: $2,328.22 × .23 = $ 535.49
2008:
2,591.68 × .23 =
596.09
2009:
2,241.75 × .23 =
515.60
2010:
509.00 × .32 = 162.88
$1,810.06
The court stated that Sivick’s contribution toward uninsured
medical expenses was more difficult to calculate. Hendrix
claimed total uninsured expenses of $12,859.99 as of April
2, 2010 ($2,882.68 for 2007, $5,591.24 for 2008, $2,547.02
for 2009, and $1,839.05 for 2010). However, the district court
agreed with Sivick that expenses incurred for the child’s private tutoring were not medical expenses under the terms of the
decree and that Sivick was not required to contribute money
toward that expense. The district court therefore excluded those
expenses, and its calculation of Robert’s contribution is summarized as follows:
2008: $5,591.24 − $480 − $ 871.25 × .23 = $ 975.20
2009: 2,547.02 − 480 − 1,312.50 × .23 =
173.54
2010: 1,839.05 − 480 −
822.50 × .32 = 171.70
$1,320.44
[9] Sivick’s argument refers to testimony during an earlier
proceeding for contempt and complains of the absence of statements from Hendrix’s health insurance carrier. However, he
has not directed us to any particular expenses that should not
be included in the calculation. In such circumstance, it is not
our duty to sift through the numerous pages of documentation
to find expenses that Sivick speculates might be excludable if
only we would find them—when he has not found, or could
not find, any of such. A party that assigns error in a proceeding
must point out the factual and legal bases that show the error.
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Mandolfo v. Mandolfo, 281 Neb. 443, 796 N.W.2d 603 (2011).
We conclude that the record, particularly the exhibits identified
above, supports the court’s determination.
Bias.
[10] Finally, Sivick asserts that the court acted in a biased
manner in favor of Hendrix and erred in refusing to recuse
itself. A trial judge should recuse himself or herself when a
litigant demonstrates that a reasonable person who knew the
circumstances of the case would question the judge’s impartiality under an objective standard of reasonableness, even though
no actual bias or prejudice was shown. Huber v. Rohrig, 280
Neb. 868, 791 N.W.2d 590 (2010). After reviewing the record,
we find nothing demonstrating bias or demonstrating that a reasonable person aware of the circumstances would question the
judge’s impartiality. We conclude that the judge did not abuse
his discretion in denying Sivick’s motion for recusal.
CONCLUSION
We conclude that Hendrix’s failure to submit documentation supporting childcare expenses on a monthly basis as
directed by the decree did not relieve Sivick of his obligation
to reimburse her for his proportionate share of childcare and
uninsured medical expenses within 10 days of the request. We
determine that Hendrix presented sufficient evidence to support
the court’s award of expenses and that Hendrix did not act in
bad faith in bringing this action to obtain reimbursement from
Sivick. Finally, we conclude that the district court judge did
not display bias and did not abuse his discretion in denying
Sivick’s motion for recusal. Accordingly, we affirm.
Affirmed.
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