- 1 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

Sonia Becher, appellee, v. 

Mark A. Becher, appellant.

___ N.W.2d ___

Filed February 25, 2022. No. S-20-737.

1. Contempt: Appeal and Error. In a civil contempt proceeding where a 

party seeks remedial relief for an alleged violation of a court order, an 

appellate court employs a three-part standard of review in which (1) the 

trial court’s resolution of issues is reviewed de novo, (2) the trial court’s 

factual findings are reviewed for clear error, and (3) the trial court’s 

determinations of whether a party is in contempt and of the sanction to 

be imposed are reviewed for abuse of discretion.

2. Judgments: Appeal and Error. The adoption of a party’s proposed 

findings does not require an appellate court to set aside the deference 

ordinarily given to the trial judge’s factual findings.

3. Contempt. Civil contempt proceedings are instituted to preserve and 

enforce the rights of private parties to a suit when a party fails to comply with a court order made for the benefit of the opposing party.

4. Contempt: Sentences. A civil sanction is coercive and remedial; the 

contemnors carry the keys of their jail cells in their own pockets, 

because the sentence is conditioned upon continued noncompliance and 

is subject to mitigation through compliance.

5. Contempt. The ability to comply with a contempt order marks a dividing line between civil and criminal contempt.

6. ____. In order for the punishment to retain its civil character, the contemnor must, at the time the sanction is imposed, have the ability to 

purge the contempt by compliance and either avert punishment or, at any 

time, bring it to an end.

7. Contempt: Sentences. A present inability to comply with a contempt 

order is a defense, not necessarily to contempt, but to incarceration.

8. Judgments: Collateral Attack. When a judgment is attacked in a 

way other than by proceeding in the original action to have it vacated, 

reversed, or modified, or by a proceeding in equity to prevent its 

enforcement, the attack is a collateral attack.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/04/2022 08:06 AM CST
- 2 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

9. ____: ____. Even if erroneous, a judgment is not subject to collateral 

attack unless it is void, such as would be the case where a judgment is 

entered without jurisdiction over the person or subject matter.

10. Judgments: Jurisdiction: Collateral Attack. A judgment entered by a 

court which lacks subject matter jurisdiction is void and may be attacked 

at any time in any proceeding.

11. Judgments: Contempt. Refusal to obey a void order or judgment is 

not contempt.

12. Actions: Waiver: Appeal and Error. A decision made at a previous 

stage of litigation, which could have been challenged in the ensuing 

appeal but was not, becomes the law of the case; the parties are deemed 

to have waived the right to challenge that decision.

13. Contempt: Words and Phrases. Willful disobedience is an essential 

element of contempt; “willful” means the violation was committed 

intentionally, with knowledge that the act violated the court order.

14. Contempt: Proof: Presumptions. Outside of statutory procedures 

imposing a different standard or an evidentiary presumption, the complainant must prove all elements of contempt by clear and convincing 

evidence.

15. Equity: Estoppel. Judicial estoppel is an equitable doctrine that a court 

invokes at its discretion to protect the integrity of the judicial process.

16. Estoppel. The doctrine of judicial estoppel protects the integrity of the 

judicial process by preventing a party from taking a position inconsistent 

with one successfully and unequivocally asserted by the same party in a 

prior proceeding.

17. ____. Judicial estoppel prevents parties from gaining an advantage by 

taking one position in a proceeding and then switching to a different 

position when convenient in a later proceeding.

18. ____. Judicial estoppel is to be applied with caution so as to avoid 

impinging on the truth-seeking function of the court, because the doctrine precludes a contradictory position without examining the truth of 

either statement.

19. Judgments: Estoppel: Appeal and Error. An appellate court reviews a 

court’s application of judicial estoppel to the facts of a case for abuse of 

discretion and reviews its underlying factual findings for clear error.

20. Divorce: Final Orders. A decree is a judgment, and once a decree for 

dissolution becomes final, its meaning is determined as a matter of law 

from the four corners of the decree itself.

21. Judgments: Final Orders: Words and Phrases. A “judgment” is a 

court’s final consideration and determination of the respective rights and 

obligations of the parties to an action as those rights and obligations 

presently exist.
- 3 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

22. Equity: Judgments: Interest. A court of equity has discretion to allow 

or withhold interest as is reasonable and just, except in cases where 

interest is recoverable as a matter of right.

23. Courts: Restitution: Contempt. Through its inherent powers of contempt, a court may order restitution for damages incurred as a result of 

failure to comply with a past order.

24. Courts: Jurisdiction: Divorce: Contempt. A court’s continuing jurisdiction over a dissolution decree includes the power to provide equitable 

relief in a contempt proceeding.

25. Courts: Equity. Where a situation exists which is contrary to the principles of equity and which can be redressed within the scope of judicial 

action, a court of equity will devise a remedy to meet the situation.

26. Contempt: Costs: Attorney Fees. Costs, including reasonable attorney 

fees, can be awarded in a contempt proceeding when there has been a 

finding of contempt.

27. Contempt: Attorney Fees. Attorney fees in contempt cases fall under a 

court’s inherent power to do all things necessary to enforce its judgment.

28. Attorney Fees: Appeal and Error. A trial court’s decision awarding 

or denying attorney fees will be upheld on appeal absent an abuse of 

discretion.

29. Judgments: Words and Phrases. A judicial abuse of discretion 

requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and 

a just result.

Appeal from the District Court for Lancaster County: Kevin 

R. McManaman, Judge. Affirmed as modified.

Adam E. Astley, of Astley Putnam, P.C., L.L.O., for appellant.

Sally A. Rasmussen, of Mattson Ricketts Law Firm, for 

appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

Mark A. Becher appeals a district court order that found 

him in contempt for failure to pay various expenses following 

his divorce from Sonia Becher. He claims that he should not 

be required to pay those expenses, the associated interest, or 
- 4 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

attorney fees. We modify the provisions of the contempt order 

pertaining to certain expenses but otherwise affirm.

I. BACKGROUND

Mark and Sonia were married in 1991. They had three 

children together and amassed considerable property. The dissolution of their marriage in 2015 has resulted in a great 

deal of litigation, including multiple contempt proceedings 

and three prior appeals. See, Becher v. Becher, 302 Neb. 720, 

925 N.W.2d 67 (2019); Becher v. Becher, 299 Neb. 206, 908 

N.W.2d 12 (2018); Becher v. Becher, 24 Neb. App. 726, 897 

N.W.2d 866 (2017), reversed in part 299 Neb. 206, 908 N.W.2d 

12 (2018).

Mark now appeals a contempt order, entered on September 

10, 2020. This order arose from Sonia’s motion for citation of 

contempt filed January 16, 2017; her supplemental motion filed 

July 3, 2019; and the district court’s corresponding orders to 

show cause. On appeal, Mark challenges aspects of the contempt order pertaining to the children’s 2016 medical expenses, 

the children’s future medical expenses, real estate taxes, costs 

associated with a wilderness therapy program for one of the 

children, interest, and Sonia’s attorney fees.

II. ASSIGNMENTS OF ERROR

Mark assigns, consolidated and restated, that the district 

court erred in (1) finding him in contempt for failure to pay 

for a portion of (a) the children’s 2016 medical expenses, (b) 

real estate taxes, and (c) the wilderness therapy program, and 

requiring him to pay for his share of those expenses as part of 

the purge plan; (2) requiring Mark to pay for his share of the 

children’s future medical expenses as part of the purge plan; 

(3) assessing interest; and (4) ordering Mark to pay Sonia’s 

attorney fees.

III. STANDARD OF REVIEW

[1] In a civil contempt proceeding where a party seeks 

remedial relief for an alleged violation of a court order, 
- 5 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

an appellate court employs a three-part standard of review 

in which (1) the trial court’s resolution of issues of law is 

reviewed de novo, (2) the trial court’s factual findings are 

reviewed for clear error, and (3) the trial court’s determinations of whether a party is in contempt and of the sanction to 

be imposed are reviewed for abuse of discretion. Vyhlidal v. 

Vyhlidal, 309 Neb. 376, 960 N.W.2d 309 (2021).

Mark argues that in this case we should deviate from the 

foregoing standard of review and not give the trial court’s factual findings the deference our clear error standard would ordinarily require. Such deference is not appropriate, he asserts, 

because the district court’s contempt order mirrors a proposed 

order submitted by Sonia’s counsel.

[2] We have no direct proof of the purported word-for-word 

match between a proposed order and the district court’s order: 

Mark acknowledges Sonia’s proposed order is not in our 

record. Undeterred by the absence of the order in the record, 

Mark claims the “tone” of the district court’s order makes it 

“readily apparent” that Sonia’s counsel must have drafted it. 

Brief for appellant at 20. We need not, however, spend time 

assessing Mark’s claim. Even if the district court adopted 

a proposed contempt order submitted by Sonia’s counsel in 

its entirety, we would not depart from our usual standard of 

review. Findings prepared by counsel and adopted verbatim by 

the trial judge are formally the judge’s, and the adoption of a 

party’s proposed findings does not require an appellate court 

to set aside the deference ordinarily given to the trial judge’s 

factual findings. See Wayne L. Ryan Revocable Trust v. Ryan, 

308 Neb. 851, 957 N.W.2d 481 (2021). See, also, Anderson v. 

Bessemer City, 470 U.S. 564, 572, 105 S. Ct. 1504, 84 L. Ed. 

2d 518 (1985) (“even when the trial judge adopts proposed 

findings verbatim, the findings are those of the court and may 

be reversed only if clearly erroneous”).

Other standards of review pertaining to specific assignments 

of error are discussed in the analysis section below.
- 6 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

IV. ANALYSIS

1. Children’s 2016 Medical Expenses 

and Future Medical Expenses

(a) Factual Background

The dissolution decree ordered Mark to pay 90 percent of 

the children’s medical expenses that were not reimbursed by 

insurance, after the first $480 per year, within 10 days of proper 

presentation of the bill.

Sonia’s 2017 motion for citation of contempt and her 2019 

supplemental motion alleged Mark had not paid his share of the 

children’s 2016 medical expenses presented to him by Sonia.

At trial, Sonia put on evidence that Mark had not reimbursed her $864.76 for his share of the children’s 2016 medical expenses. The parties later stipulated, however, that Mark 

had paid $886.05 into the district court on March 15, 2017, 

just prior to the first day of trial. The district court’s receipt 

described the payment as “Judgment (General).” Mark testified that he paid this sum for the children’s 2016 medical 

expenses.

In its order entered September 10, 2020, the district court 

found Mark in contempt of the provisions of the decree requiring him to pay the 2016 medical expenses within 10 days of 

proper presentation by Sonia. Addressing Mark’s 2017 payment of $886.05 into the court, the district court observed that 

neither the amount nor the description of that payment tied it 

to the 2016 medical expenses, which had not been reduced to a 

general judgment, and that therefore, the evidence did not support a finding that Mark paid them. The district court continued 

that even if this eventual payment was intended as payment 

of the 2016 medical expenses, it did not prevent a finding of 

contempt. Citing an earlier order finding Mark in contempt, 

entered on May 11, 2016, the district court characterized 

Mark’s failure to pay his share of the children’s 2016 health 

care expenses pursuant to the terms of the decree as part of an 

established pattern of recalcitrance. It then stated:
- 7 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

Because the [contempt order entered May 11, 2016,] was 

not sufficient to persuade [Mark] to pay his share of the 

children’s medical expenses on time, or at all, additional 

language in the purge plan will obligate [Mark] to pay all 

future medical expenses within 10 days of proper presentation until the youngest child turns 19. Hopefully, this 

will eradicate the need to file serial contempt actions for 

non-payment of the children’s health care expenses.

The district court committed Mark to a sentence of 60 days 

in jail, which sentence would remain suspended so long as 

Mark complied with the purge plan. The purge plan required 

Mark to pay the 2016 health care expenses of $864.76 within 

10 days, plus interest. Also as part of the purge plan, the district court ordered, “From the date of this order until the last 

of the parties’ minor children reaches the age of 19, Mark . . . 

shall pay his share of the children’s future health care expenses 

within 10 days of proper presentation of the same by [Sonia], 

as ordered in the parties’ decree.” The parties’ youngest child 

was born in 2008.

(b) Analysis

(i) 2016 Medical Expenses

Given the evidence and the parties’ stipulation, Mark asserts 

that the district court erred in finding him in contempt for failing to pay the children’s 2016 medical expenses and not crediting him with the $886.05 he paid toward those expenses. Sonia 

concedes that Mark should be given credit for the $886.05 

that the parties stipulated he paid into the district court in 

2017 and that the provision of the purge plan ordering Mark 

to pay $864.76 for 2016 medical expenses should be eliminated, but she contends that no other modifications of the order 

are warranted.

[3] We accept Sonia’s concession that Mark should be given 

credit for the payment the parties stipulated he paid into the 

district court and that the provision of the purge plan ordering Mark to pay those medical expenses should be eliminated. 
- 8 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

As for Sonia’s contention that Mark should still be held in 

contempt for his late payment of the children’s 2016 medical 

expenses, we disagree. Civil contempt proceedings are instituted to preserve and enforce the rights of private parties to 

a suit when a party fails to comply with a court order made 

for the benefit of the opposing party. Johnson v. Johnson, 308 

Neb. 623, 956 N.W.2d 261 (2021). When Mark paid the 2016 

medical expenses, however late, there was nothing more that 

could be done to fulfill the requirements of the decree. The 

subsequent citation of contempt, therefore, could not serve 

the purpose of the civil contempt remedy and was an abuse of 

discretion. Accordingly, we modify the contempt order to strike 

paragraph 17, finding Mark in contempt for failing to pay those 

expenses, and paragraph 44(b), incorporating those expenses 

into the purge plan, as well as the reference to paragraph 44(b) 

in paragraph 45.

(ii) Future Medical Expenses

Mark also argues that the district court erred in requiring 

him to pay his share of the children’s future medical expenses 

as part of the purge plan. Mark argues that the provision does 

not allow consideration of his present ability to comply or factors that might lead to noncompliance.

We conclude it was an abuse of discretion to require Mark 

to pay his share of future medical expenses as part of the purge 

plan. Although we recognize the district court’s intent to craft 

a purge plan that would “preserve and enforce” Sonia’s rights 

under the decree, see Johnson, 308 Neb. at 630, 956 N.W.2d at 

266, the future medical provision otherwise conflicts with the 

principles of civil contempt.

As we read the district court’s contempt order, it would 

require that Mark be committed to jail if, at any time before the 

last of the parties’ children turned 19 years of age, he failed to 

pay any medical expense for which he was responsible under 

the decree within 10 days of Sonia’s presenting him with the 

expense. As we will explain, this arrangement runs contrary to 

our civil contempt jurisprudence.
- 9 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

[4-7] A civil sanction is coercive and remedial; the contemnors carry the keys of their jail cells in their own pockets, 

because the sentence is conditioned upon continued noncompliance and is subject to mitigation through compliance. Sickler v. 

Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016). The ability to 

comply with a contempt order marks a dividing line between 

civil and criminal contempt. Id. In order for the punishment to 

retain its civil character, the contemnor must, at the time the 

sanction is imposed, have the ability to purge the contempt by 

compliance and either avert punishment or, at any time, bring 

it to an end. Id. A present inability to comply with a contempt 

order is a defense, not necessarily to contempt, but to incarceration. Id.

The order suspending Mark’s sentence on the condition that 

he comply with the decree’s medical expense provisions in 

the future creates the possibility that Mark could be committed to jail even if he lacks the ability to pay the expenses. At 

the time the purge plan was entered, the district court could 

not know the extent of the future medical expenses or Mark’s 

future resources to pay them. Mark also did not have the ability to purge the contempt at the time the sanction was imposed 

because future medical expenses had not yet arisen.

Further, we do not believe the future medical expense 

provision could lawfully accomplish what the district court 

intended. In its contempt order, the district court stated that it 

would include the future medical expense provision as part of 

the purge plan in the hopes that it would eliminate the need 

for future contempt proceedings to address nonpayment of the 

children’s medical expenses. To the extent the district court 

envisioned that its contempt order would result in the automatic issuance of a commitment order in the event Mark failed 

to pay medical expenses as required by the decree in the future 

without any additional hearing, that would violate due proc

ess. See, Cokonougher v. Cokonougher, 543 So. 2d 460 (Fla. 

App. 1989); Tucker v. Tucker, 10 Ohio App. 3d 251, 252, 461 

N.E.2d 1337, 1339 (1983) (“insofar as [a purge plan] purports 
- 10 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

to regulate future conduct, it simply amounts to the court’s 

reaffirmation of [the dissolution decree] and can have no effect 

since any effort to punish a future violation of the [decree] 

would require new notice, hearing, and determination”). If, on 

the other hand, Mark is afforded due process in the form of an 

additional hearing regarding any future alleged violation of the 

decree, the district court’s aim of avoiding successive proceedings will not be achieved.

We understand the district court’s impulse to ensure that 

Mark complies with the medical expense provisions of the 

decree in the future. However, the district court’s ordinary 

powers of contempt are sufficient to accomplish that purpose: 

If Mark willfully refuses to comply with the decree in the 

future, future contempt actions will be available. This may 

result in the “serial contempt actions” that the district court 

sought to avoid, but additional proceedings would be necessary 

in order for the sanction to retain its civil character and afford 

due process.

To the extent that the district court found Mark in contempt 

and imposed a sanction related to future health care expenses, 

it abused its discretion. We modify the contempt order to 

strike paragraph 18, referring to future medical expenses, and 

paragraph 44(e), the future medical expenses provision of the 

purge plan.

2. Appellate Record Dispute

Before we take up Mark’s other assignments of error, we 

stop to briefly address a dispute between the parties regarding 

the materials that we may consider in resolving those assignments of error.

The parties pursued contempt actions against each other 

during the same timeframe. The trial that preceded the 

September 2020 contempt order from which Mark now appeals 

was continued multiple times. While the trial was pending, 

Mark initiated his own contempt proceedings and a related 

request for declaratory relief, resulting in hearings and orders. 
- 11 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

Although some of the issues in the parties’ separate contempt 

proceedings were related, the matters were addressed at separate hearings.

For the current appeal, Mark’s praecipe for transcript and 

praecipe for a bill of exceptions requested pleadings, orders, 

and evidence from the contempt proceedings he had initiated, 

in addition to materials from Sonia’s contempt proceedings 

that produced the order now appealed. Those materials from 

Mark’s contempt proceedings appear in our transcript and bill 

of exceptions, and Mark claims that they support his arguments 

regarding the real estate taxes and the expenses for the wilderness therapy program.

Sonia’s appellate brief contends we may not consider materials from Mark’s contempt proceedings, and Sonia filed a 

“Motion to Strike Documents Outside the Trial Court Record” 

simultaneously with her brief. We overruled Sonia’s motion 

and reserved for plenary submission the question of what materials may be considered in this appeal.

We now determine that we need not resolve the question 

of whether the disputed materials are properly before us. We 

find that even if the disputed materials are considered, Mark’s 

assignments of error regarding the real estate taxes and the 

expenses for the wilderness therapy program lack merit.

3. Real Estate Taxes

(a) Factual Background

The December 2015 dissolution decree classified, valued, 

and divided the parties’ substantial commercial and residential 

real estate holdings. Sonia subsequently sought an order holding Mark in contempt for his refusal to pay real estate taxes 

that accrued during the marriage for certain properties.

In an order entered on May 11, 2016, the district court did 

not hold Mark in contempt for refusing to pay real estate taxes, 

but stated that Mark could be held in contempt if he failed to 

pay his portion of the taxes within 60 days:
- 12 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

The unpaid real estate taxes prior to December 18, 2015[,] 

is a marital debt to be paid equally by the parties. The 

evidence in this contempt hearing showed the following 

taxes to be unpaid: 2015 Sun Valley taxes of $2191.04; 

2015 Mini Storage taxes of $4768.82; 2015 Dollar 

General taxes of $13,208.08; and last half 2014 Dollar 

General taxes of $6,997.08. The taxes are prorated to 

December 1, 2015. 92% of the year the taxes are a marital 

obligation. [Mark] owes 50% of 92% of the total unpaid 

real estate taxes for 2015 and 50% of the total unpaid 

real estate taxes for 2014. However, since [Sonia] has 

demanded in her contempt proceedings that [Mark] pay 

all the unpaid taxes, she has not succeeded in establishing 

his contempt [in] these [proceedings]. [Mark’s] failure 

to pay these taxes prior to this date is not contempt. The 

same will not be the result if these taxes remain unpaid 60 

days from now. But that is for another day. [Mark] is not 

in contempt on these taxes at this time.

This order was later appealed on other grounds, and we 

affirmed. See Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 

(2018).

Sonia subsequently demanded that Mark pay his share of 

the foregoing taxes and interest and penalties, all of which 

Sonia had paid. When Mark did not pay, she filed the motion 

for citation of contempt that gave rise to this appeal. At trial 

in Sonia’s contempt proceedings, Sonia presented evidence 

that supported her demand upon Mark for payment. Mark testified that he was aware of the May 11, 2016, order; that he 

had read the order; and that he understood it obligated him to 

pay the sums it listed. However, he took the position that he 

did not pay those sums because he was confused by guidance 

from one of his attorneys and his contact at the courthouse 

did not inform him that he owed them. Mark also claimed that 

Sonia had not paid him certain sums as ordered by the district 

court and that to offset that amount, he should not be held in 

contempt for refraining from paying Sonia sums that he was 

ordered to pay by the May 11, 2016, order.
- 13 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

The district court precluded Mark from adducing evidence 

in support of the setoff defense. However, it allowed him to 

present evidence about the issue solely for the purpose of considering whether such evidence mitigated against a “willful” 

disobedience of the court’s May 2016 contempt order.

In its order entered September 10, 2020, the district court 

found Mark in contempt of the May 11, 2016, order for failing to pay the real estate taxes itemized in that order within 60 

days. It found that Mark had willfully disregarded the order 

because he was aware of it, had read it, and understood that 

it obligated him to pay the real estate taxes listed. The district 

court’s purge plan directed Mark to pay within 10 days the sum 

Sonia had sought in her demand—$13,359.52—plus interest.

(b) Analysis

In this appeal, Mark assigns that the district court erred in 

finding him in contempt for not paying his share of the real 

estate taxes recited in the May 2016 order and for requiring 

him, in the purge plan, to pay the amount Sonia demanded in 

connection with the real estate taxes. Mark suggests that the 

May 2016 order did not explicitly direct him to pay a share of 

the disputed real estate taxes. Alternatively, Mark contends that 

the district court violated equitable principles in enforcing the 

May 2016 order through contempt.

We begin by dispensing with Mark’s suggestion that the 

May 2016 order did not specifically direct him to pay a share 

of the now-disputed real estate taxes. The order stated:

[Sonia] has demanded in her contempt proceedings that 

[Mark] pay all the unpaid taxes, [but] she has not succeeded in establishing his contempt [in] these [proceedings]. [Mark’s] failure to pay these taxes prior to this date 

is not contempt. The same will not be the result if these 

taxes remain unpaid 60 days from now.

Although the district court’s articulation could have been more 

direct, the foregoing language unmistakably ordered Mark to 

pay a portion of the disputed real estate taxes.
- 14 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

Mark next asserts that the May 2016 order’s treatment of the 

real estate taxes was “wrong” and that consequently, principles 

of equity required the district court to construe it as creating no 

obligations at all. Brief for appellant at 29. But even assuming, 

without deciding, that the order was erroneous, it does not necessarily mean that the district court erred in enforcing the order 

in a contempt proceeding.

[8-11] When a judgment is attacked in a way other than by 

a proceeding in the original action to have it vacated, reversed, 

or modified, or by a proceeding in equity to prevent its enforcement, the attack is a collateral attack. Fetherkile v. Fetherkile, 

299 Neb. 76, 907 N.W.2d 275 (2018). Even if erroneous, a 

judgment is not subject to collateral attack unless it is void, 

such as would be the case where a judgment is entered without 

jurisdiction over the person or subject matter. Id. A judgment 

entered by a court which lacks subject matter jurisdiction is 

void and may be attacked at any time in any proceeding. Davis 

v. Moats, 308 Neb. 757, 956 N.W.2d 682 (2021). And refusal to 

obey a void order or judgment is not contempt. Id.

Although Mark argues that the district court should not have 

enforced the May 2016 order, he does not argue that the May 

2016 order is void, and we do not believe it is. Without further 

explanation or citations to authority, Mark appears to take the 

position the order was “wrong” because of “Nebraska’s prohibition on modifying property judgments.” Brief for appellant at 

29. This appears to be a reference to our holding that a property division in a dissolution of marriage decree from which 

no appeal is taken is not subject to modification and ordinarily 

will not thereafter be vacated or modified as to such property 

provisions in the absence of fraud or gross inequity. See Davis 

v. Davis, 265 Neb. 790, 660 N.W.2d 162 (2003). But because 

our law allows modification of property division under some 

circumstances, it follows that a modification could result in, at 

most, an erroneous order, not a void one.

[12] Mark’s attempt to collaterally attack the May 2016 order 

is also precluded by the law-of-the-case doctrine. Although 
- 15 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

the May 2016 order was appealed, the real estate tax provisions 

were not challenged, and we affirmed. See Becher v. Becher, 

299 Neb. 206, 908 N.W.2d 12 (2018). A decision made at a 

previous stage of litigation, which could have been challenged 

in the ensuing appeal but was not, becomes the law of the 

case; the parties are deemed to have waived the right to challenge that decision. Pinnacle Enters. v. City of Papillion, 302 

Neb. 297, 923 N.W.2d 372 (2019). Thus, upon the issuance of 

our mandate in the earlier appeal, Mark was deemed to have 

waived any challenges to the May 2016 order, and the district 

court was not obligated to reconsider whether the May 2016 

order was correct in ruling on Sonia’s contempt motion.

Mark next claims that it was inequitable to find him in 

contempt for his failure to pay the real estate taxes in light of 

his setoff defenses. Again, we disagree. While the court may 

entertain setoff considerations in fashioning its orders, see 

Davis, supra, it is not up to a party to unilaterally manage what 

is due and owing under a court’s order, especially when the 

order is clear. See Jensen v. Jensen, 275 Neb. 921, 750 N.W.2d 

335 (2008) (when overpayments of child support are voluntarily made outside terms of court order, general rule is that no 

credit is given for those payments, because such credit would 

be tantamount to allowing one party to unilaterally modify 

court’s order, which could result in deprivation of future support benefits).

Having established that the May 2016 order expressly 

directed Mark to pay a portion of the real estate taxes recited 

therein and equitable principles did not preclude the district 

court from holding Mark in contempt if he failed to pay them, 

we turn to the only remaining issue, which is whether the district court abused its discretion in holding Mark in contempt 

for his failure to pay and ordering him in the purge plan to 

reimburse Sonia as she requested. We conclude that it did not.

[13,14] As we have already observed, civil contempt proceedings are instituted to preserve and enforce the rights of 

private parties to a suit when a party fails to comply with a 
- 16 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

court order made for the benefit of the opposing party. Sickler 

v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016). Willful disobedience is an essential element of contempt; “willful” means 

the violation was committed intentionally, with knowledge that 

the act violated the court order. Id. Outside of statutory procedures imposing a different standard or an evidentiary presumption, the complainant must prove all elements of contempt by 

clear and convincing evidence. Id.

Sonia presented clear and convincing evidence that Mark 

willfully disobeyed the real estate tax provisions of an enforceable order made for her benefit. Mark admitted at trial that he 

was aware of the May 2016 order, that he had read the order, 

and that he understood it obligated him to pay the sums it 

listed. Yet, for reasons of his own, he chose not to do so. Under 

these circumstances, we cannot say it was an abuse of discretion for the district court to find Mark in contempt and order 

him in the purge plan to reimburse Sonia for the amount she 

paid for real estate taxes due to Mark’s failure to pay.

4. Wilderness Therapy Program

(a) Factual Background

Mark and Sonia pursued contempt proceedings against each 

other, both of which concerned their daughter’s participation 

in a wilderness therapy program in the summer of 2018. Mark 

initiated his contempt proceeding against Sonia that summer. 

The decree required the parties to “promptly inform and consult with each other” about “any medical problem” and “immediately notify the other” of “an illness or injury” involving the 

minor children. Mark alleged in his contempt proceedings that 

Sonia violated these provisions of the decree when she did 

not inform him before placing the daughter in the wilderness 

therapy program.

During those contempt proceedings, in July 2018, the following exchange took place between Sonia and her counsel:

Q [A]t the time you made the decision to place [your 

daughter] at the [wilderness therapy program], was she ill?
- 17 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

A No, she wasn’t sick.

Q Was she injured?

A No.

Q Was she suffering from any new medical problem?

A No.

. . . .

Q Do you believe that you were obligated to involve 

and consult [Mark] prior to placing or making the decision to place [your daughter] at the [wilderness therapy program]?

A No.

In September 2018, Sonia also submitted written closing 

arguments in the contempt proceedings initiated by Mark in 

which she stated that she should not be held in contempt 

because the daughter “did not have a medical problem, and she 

was not ill or injured.”

Later, in July 2019, Sonia initiated contempt proceedings 

against Mark, claiming that Mark should be held in contempt 

for refusing to pay his share of the cost of the wilderness 

therapy program, which she contended was a medical expense 

under the decree. As referenced above, the dissolution decree 

ordered: “Mark shall provide health insurance for the children 

if available through an employer or organization to which 

he belongs. Mark shall pay 90% and Sonia shall pay 10% 

of all medical, dental, and optical expenses for the child not 

reimbursed by insurance after the first $480.00 per year.” 

The decree ordered reimbursement of medical expenses within 

10 days of proper presentation of the bill to the other party. In 

addressing how the parties shall present medical expenses to 

each other for payment, the district court ordered: “The parties 

should continue to use participating providers whenever possible and both parties should agree in advance before having 

the children treated by someone other than a licensed medical 

doctor, physical therapist or licensed mental health professional or dentist.”

In September 2019, before the trial on the contempt proceedings initiated by Sonia had concluded, the district court 
- 18 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

entered an order overruling Mark’s motion asking that Sonia 

be held in contempt and found that Sonia did not violate the 

decree. The district court’s order stated that “[t]he evidence at 

trial showed that [the daughter] did not have a medical problem, and she was not ill or injured.” Whether the district court 

erred by overruling Mark’s contempt motion is not before us 

in this appeal.

According to the evidence presented at the trial on the 

contempt proceeding initiated by Sonia, Sonia arranged for 

the parties’ daughter to spend the entire summer of 2018 at 

the wilderness therapy program, which was located in Utah. 

The daughter, then age 16, was transported to the wilderness 

therapy program by a professional escort team. The daughter 

testified that she would not have gone to the wilderness therapy 

program voluntarily if escorted by Sonia. Sonia paid the cost of 

the wilderness therapy program, $51,892.50, in full.

Sonia was allowed to visit the daughter during the wilderness therapy program. She testified that she observed the 

daughter receive “lots of psychological help.” She testified that 

the daughter received mental health counseling at the wilderness therapy program that was similar to counseling she had 

received in Nebraska, for which Mark had paid his share.

Sonia testified regarding the nature of the wilderness therapy 

program. She testified that the daughter received “medical 

treatment.” She testified that the daughter did not have “broken bones . . . so I would not call it medical that way, but she 

had a broken soul, so it was health.” Sonia testified that she 

sent her daughter to the wilderness therapy program “because 

she had behavioral problems and I just wanted to send her 

someplace where they were going to stop her from hurting 

herself by taking drugs or running away in the middle of the 

night.” At that point, Sonia testified, she “did not realize that 

this could even be a health issue.” Sonia testified that “[l]ater 

on,” she was advised by her counsel to submit the expenses to 

the health insurer with whom Mark had health insurance for 

the parties’ children. Evidence introduced at trial showed that 
- 19 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

the health insurer sent reimbursement checks for the wilderness therapy program totaling $25,378.67 to Mark. A portion 

of the program was not covered by health insurance, because 

Mark terminated the policy before the daughter completed 

the program.

Mark admitted that he received the checks from the health 

insurer for the wilderness therapy program and that he had 

not paid those expenses. The “explanation of benefits” documents from the insurer reflecting this reimbursement are from 

December 2018 and January 2019. Sonia asked Mark to sign 

the checks over to her, but he did not.

In Sonia’s contempt proceedings, the district court rejected 

Mark’s argument that the wilderness therapy program expenses 

were not “medical expenses” under the decree. The district 

court found Mark in contempt for not paying 90 percent of the 

wilderness therapy program expenses and ordered him to pay 

the expenses as part of the purge plan, plus interest.

(b) Analysis

On appeal, Mark contends that the district court erred in 

holding him in contempt for not paying his share for the cost 

of the wilderness therapy program and in requiring him to pay 

his share and the associated interest as part of the purge plan. 

Mark asserts that Sonia was judicially estopped from claiming the wilderness therapy program was a medical expense 

pursuant to the decree and that even if judicial estoppel does 

not apply, Sonia’s claim should have failed on the merits. For 

reasons explained below, we reject these arguments.

(i) Judicial Estoppel

[15-17] Mark argues that the district court erred by not 

invoking the doctrine of judicial estoppel to preclude Sonia 

from claiming that the cost of the wilderness therapy program was a medical expense. Judicial estoppel is an equitable 

doctrine that a court invokes at its discretion to protect the 

integrity of the judicial process. Cleaver-Brooks, Inc. v. Twin 

City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 105 (2015). The 
- 20 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

doctrine of judicial estoppel protects the integrity of the judicial process by preventing a party from taking a position inconsistent with one successfully and unequivocally asserted by the 

same party in a prior proceeding. Id. Fundamentally, the intent 

behind the doctrine of judicial estoppel is to prevent parties 

from gaining an advantage by taking one position in a proceeding and then switching to a different position when convenient 

in a later proceeding. Id. We have previously quoted one 

court’s explanation that the purpose of the rule is “‘to prevent parties from playing fast and loose with the courts.’” Id. 

at 289, 865 N.W.2d at 114, quoting Ryan Operations G.P. v. 

Santiam-Midwest Lumber Co., 81 F.3d 355 (3d Cir. 1996).

[18] The judicial estoppel doctrine, however, is to be applied 

with caution so as to avoid impinging on the truth-seeking 

function of the court, because the doctrine precludes a contradictory position without examining the truth of either statement. Cleaver-Brooks, Inc., supra. We have also held that 

before a court may apply the judicial estoppel doctrine, “bad 

faith or an actual intent to mislead on the part of the party 

asserting inconsistent positions must be demonstrated.” Id. at 

289, 865 N.W.2d at 114-15.

Mark contends that the district court should have applied 

judicial estoppel to preclude Sonia from taking the position 

that the costs of the wilderness therapy program were medical 

expenses. He argues that Sonia took the position in his contempt proceedings that their daughter did not have a “medical 

problem” about which the decree would have required Sonia 

to consult with Mark and was successful in persuading the 

district court to agree. According to Mark, it was inconsistent 

for Sonia to later take the position that the costs of the wilderness therapy program qualified as “medical expenses” that the 

decree required Mark to pay.

We do not deny that Mark has a plausible argument that 

Sonia took inconsistent positions. One must acknowledge that 

there is, at the very least, some tension between Sonia’s claims 

that the daughter needed to go to the wilderness therapy 
- 21 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

program for a reason other than a “medical problem,” but that 

the cost of the wilderness therapy program was nonetheless a 

medical expense.

But even if Sonia successfully persuaded the court to adopt 

her position with respect to Mark’s contempt motion and then 

took an inconsistent position with respect to her contempt 

motion, that alone would not require the district court to apply 

the judicial estoppel doctrine. As we have noted, in order 

for the doctrine to be applied, there would also need to be a 

demonstration of “bad faith or an actual intent to mislead” on 

Sonia’s part. See Cleaver Brooks, Inc. v. Twin City Fire Ins. 

Co., 291 Neb. 278, 289, 865 N.W.2d 105, 114 (2015). And 

even if that showing were made, the district court would still 

retain discretion as to whether to apply the doctrine. See id.

On the question of whether there was a demonstration here 

that Sonia acted with bad faith or had an actual intent to mislead, we find a federal district court case applying Nebraska 

law instructive. In Lueders v. Arp, 321 F. Supp. 3d 968 (D. 

Neb. 2018), a person involved in two traffic accidents filed 

lawsuits against parties he claimed were liable for his injuries 

in the respective accidents. The plaintiff testified in a deposition for the first lawsuit that his injury was not exacerbated 

by the second accident and that he did not intend to claim 

any additional injuries. After the first lawsuit was settled, 

however, the plaintiff filed the second lawsuit, claiming an 

additional injury for the second accident. The second defend

ant sought summary judgment, arguing that judicial estoppel 

precluded the plaintiff from claiming he was injured in the 

second accident after he previously testified that his injuries 

were exclusively caused by the first. The federal district court 

denied summary judgment, finding an absence of conclusive 

evidence that the plaintiff acted with bad faith or had an actual 

intent to mislead. It explained that while the evidence might 

have been consistent with “‘playing fast and loose with the 

courts,’” it would also be consistent with more innocent explanations including “a plaintiff deciding, during the course of 
- 22 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

medical evaluation and discovery, that perhaps the causation of 

his injuries was more complicated than he thought.” Id. at 976, 

quoting Cleaver-Brooks, Inc., supra.

Like the court in Lueders, we do not find the evidence 

here conclusive as to whether Sonia acted in bad faith or had 

an actual intent to mislead. The positions Sonia took on the 

respective contempt motions might have been consistent with 

“‘playing fast and loose with the courts,’” but we think they 

would also have been consistent with more innocent explanations. See id. Perhaps Sonia honestly believed that it was possible to send the daughter to the wilderness therapy program for 

something other than a “medical problem,” but for the wilderness therapy program to nonetheless be a “medical expense.” 

Or perhaps, during the course of the various proceedings, 

Sonia’s views about the nature of the daughter’s needs when 

she was sent to the wilderness therapy program changed. Sonia 

provided testimony that appeared to allude to such a change in 

perspective between the time she initially sent the daughter to 

the wilderness therapy program and “did not realize that this 

could even be a health issue” and the time of the trial on her 

contempt proceeding after the expenses for the program had 

been covered by health insurance.

We also note that Sonia is not the only party that took positions that are arguably inconsistent with respect to the nature of 

the wilderness therapy program expenses. Although Mark took 

the position in Sonia’s contempt proceeding that the costs of 

the wilderness therapy program were not medical expenses, he 

retained payments from his health insurer for those expenses. 

There is obvious tension between claiming that expenses are 

not medical in nature and nonetheless retaining reimbursement from a health insurer for those expenses. Moreover, if 

permitted to retain the payments from the health insurer and 

not required to reimburse Sonia, Mark would not only have 

avoided paying the wilderness therapy program expenses, but 

he would have emerged from the various transactions with a 

substantial profit.
- 23 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

[19] Faced with inconclusive evidence as to Sonia’s subjective motivation and the issues presented by Mark’s position 

summarized above, our standard of review becomes important. 

We have held that an appellate court reviews a court’s application of judicial estoppel to the facts of a case for abuse of 

discretion and reviews its underlying factual findings for clear 

error. TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 

(2010). As the U.S. Court of Appeals for the First Circuit has 

explained, the subjective element of judicial estoppel is one 

of the reasons its application is reviewed under a deferential standard:

[D]eferential review often is appropriate for matters in 

which the trial court is better positioned . . . to decide 

the issue in question. Judicial estoppel is such a matter. 

Determining whether a litigant is playing fast and loose 

with the courts has a subjective element. Its resolution 

draws upon the trier’s intimate knowledge of the case at 

bar and his or her first-hand observations of the lawyers 

and their litigation strategies.

Alternative System Concepts, Inc. v. Synopsys, 374 F.3d 23, 31 

(1st Cir. 2004) (internal quotation marks and citation omitted).

This is certainly a case in which the district court’s knowledge of the parties, their disputes, and their litigation tactics 

far exceeds ours. The district court was unquestionably in a 

better position to determine whether Sonia took inconsistent 

positions in bad faith or with an actual intent to mislead. And 

having seen and heard the respective contempt proceedings 

firsthand, the district court was also in a better position to 

weigh whether, in light of equitable considerations, judicial 

estoppel should not have been applied to benefit Mark. See 

Cleaver-Brooks, Inc. v. Twin City Fire Ins. Co., 291 Neb. 

278, 865 N.W.2d 105 (2015) (judicial estoppel is equitable 

doctrine that court invokes at its discretion). See, also, New 

Hampshire v. Maine, 532 U.S. 742, 751, 121 S. Ct. 1808, 149 

L. Ed. 2d 968 (2001) (explaining that application of judicial 

estoppel does not depend upon “exhaustive formula” and that 
- 24 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

“[a]dditional considerations may inform the doctrine’s application in specific factual contexts”). Given the foregoing, we 

cannot say the district court abused its discretion in declining 

to apply judicial estoppel.

(ii) Wilderness Therapy Program 

as Medical Expense

Mark claims that, even if his judicial estoppel argument is 

not successful, the district court erred in finding him in contempt for not paying part of the cost for the wilderness therapy 

program. Mark does not dispute that the wilderness therapy 

program offered counseling and behavioral health services, but 

according to him, the language of the decree’s medical expense 

provision does not require payment for such services.

[20] The parties correctly frame the issue as whether the 

decree’s reference to medical expenses includes the expenses 

associated with the wilderness therapy program the daughter 

attended. A decree is a judgment, and once a decree for dissolution becomes final, its meaning is determined as a matter 

of law from the four corners of the decree itself. See Braun 

v. Braun, 306 Neb. 890, 947 N.W.2d 694 (2020). Because the 

meaning of “medical expenses” as used in the decree presents 

a question of law, we reach a conclusion independent of the 

determination reached by the trial court. See id. Our review of 

the language of the decree leads us to conclude that the district 

court did not err in classifying the wilderness therapy program 

expenses as medical expenses for which Mark was partly 

responsible under the decree.

The language of the dissolution decree contemplated that 

medical expenses could include mental health services. It made 

Mark responsible for a significant portion of the children’s 

“medical, dental, and optical expenses” properly presented 

to him by Sonia. In explaining how the parties shall present 

expenses to each other for payment, the decree directed the 

parties to “continue to use participating providers whenever 

possible and . . . agree in advance before having the children 
- 25 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

treated by someone other than a licensed medical doctor, physical therapist or licensed mental health professional or dentist.” 

(Emphasis supplied.) Because the language providing a proc

ess for the presentation of medical expenses included mental 

health services, we conclude that those expenses are medical 

expenses under the decree.

The decree’s use of “medical” to encompass mental health 

treatment is consistent with a widely accepted understanding of 

that term. As one court has explained:

Medicine is the art and science of dealing with the prevention, cure and alleviation of diseases and the preservation and restoration of health. It is a science not limited to 

the treatment and care of physical or bodily ills, but one 

which also includes the care of the patient’s mental health 

and the prevention or alleviation of mental illnesses.

Sterbling v. Sterbling, 35 Ohio App. 3d 68, 70, 519 N.E.2d 

673, 676 (1987). This understanding of “medical” has been 

used in Nebraska case law and statutes. See, e.g., Neb. Rev. 

Stat. §§ 71-8215 (Reissue 2009) and 38-1207 (Reissue 2016) 

(emergency medical service defined as organization responding to need for medical care “in order to prevent loss of life 

or aggravation of physiological or psychological illness or 

injury”); State v. Vigil, 283 Neb. 129, 810 N.W.2d 687 (2012) 

(where individual is alleged to be victim of sexual assault, 

statements reasonably pertinent to medical diagnosis and treatment of both physical and psychological trauma are admissible under medical diagnosis or treatment hearsay exception). 

Cases from other jurisdictions interpreting dissolution decrees 

have also read “medical” expenses in this broad sense. See, 

McDonald v. Taylor, 106 N.C. App. 18, 415 S.E.2d 81 (1992); 

Cedergreen v. Cedergreen, 811 P.2d 784 (Alaska 1991); Bucy 

v. Bucy, 23 Conn. App. 98, 579 A.2d 117 (1990); Martin v. 

Martin, 538 So. 2d 765 (Miss. 1989); Sulman v. Sulman, 510 

So. 2d 908 (Fla. App. 1987); Kahn v. Kahn, 23 Ariz. App. 269, 

532 P.2d 541 (1975).
- 26 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

Mark further argues that there was no evidence that the 

cost of the wilderness therapy program was reasonable or that 

a less expensive option would have been ineffective. He also 

claims that Sonia sent the daughter to the wilderness therapy 

program for her own convenience rather than medical necessity. We find that none of these arguments are relevant to 

whether the expenses qualified as “medical expenses” under 

the language of the decree. And because we are not persuaded 

that the district court erred in determining that the wilderness 

therapy program expenses were medical expenses under the 

decree, we conclude that the district court did not abuse its 

discretion in finding Mark in contempt for failing to pay his 

share of those costs and in ordering him to do so as part of the 

purge plan.

5. Interest

As described above, the district court found Mark in contempt for disobeying court orders to pay various expenses and 

ordered Mark to reimburse Sonia for her payment of those 

expenses as part of the purge plan. Relevant to this section, 

those expenses included sums paid by Sonia for real estate 

taxes, the wilderness therapy program expenses, and 2018 

orthodontia expenses for one of the children. For each of these 

categories, the district court ordered Mark to pay “prejudgment 

interest,” accruing from different dates for each expense, with 

all accrual dates preceding entry of the contempt order. In fixing the interest rate for each item, the district court cited to 

the “Nebraska Judgment Interest Rate” table distributed by the 

State Court Administrator and ordered the specific interest rate 

in effect on the accrual date designated by the district court.

On appeal, Mark asserts that the district court erred in 

assessing “prejudgment interest” against him. In opposing the 

“prejudgment interest” awarded, Mark does not challenge the 

amounts upon which the district court ordered such interest 

to accrue, the accrual dates, or the interest rates; therefore, 

we do not analyze the correctness of these determinations. We 
- 27 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

confine our analysis to Mark’s only argument on this point—

that the district court was statutorily prohibited from ordering “prejudgment interest” and that thus, the order must be 

reversed. As we will explain, the issue is not that simple.

Although the district court stated that it was awarding Sonia 

“prejudgment interest,” Sonia contends that some of the interest it ordered Mark to pay was actually postjudgment interest. 

As its name suggests, “[p]rejudgment interest is interest due, 

pursuant to statute, [as interest that accrues] prior to the rendition of a judgment.” First Nat. Bank v. Bolzer, 221 Neb. 415, 

421, 377 N.W.2d 533, 537 (1985). Prejudgment interest ends 

and postjudgment interest begins to accrue “from the date of 

entry of judgment until satisfaction of judgment.” Neb. Rev. 

Stat. § 45-103.01 (Reissue 2016). See, Neb. Rev. Stat. § 45-104 

(Reissue 2016); Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 

40 (2019).

[21] We agree that the interest the district court ordered 

Mark to pay on the sums owed for the real estate taxes falls 

into the category of postjudgment interest. A “judgment” is a 

court’s final consideration and determination of the respective 

rights and obligations of the parties to an action as those rights 

and obligations presently exist. Nichols v. Nichols, 288 Neb. 

339, 847 N.W.2d 307 (2014). See Neb. Rev. Stat. § 25-1301(1) 

(Cum. Supp. 2020). The court’s May 11, 2016, order made 

such a determination regarding real estate taxes.

In contrast to the interest on the real estate taxes, it is less 

clear that the interest the district court ordered Mark to pay 

on the sums he owed for the wilderness therapy program 

and orthodontia was postjudgment interest. The district court 

ordered interest for the wilderness therapy program and orthodontia expenses to begin to accrue October 18, 2018, and 

August 28, respectively, at the postjudgment interest rates in 

effect on those accrual dates. And while the dissolution decree 

addressed Mark’s general obligations for medical expenses, 

the final consideration and determination of his obligations 

for those expenses occurred when the district court entered its 
- 28 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

contempt order on September 10, 2020. As we will explain, 

however, even if the district court ordered the interest to 

accrue on those sums prior to the judgment, the district court 

did not necessarily err by doing so.

Mark’s position that the district court was statutorily prohibited from ordering interest to accrue prior to the judgment 

is based on Neb. Rev. Stat. § 45-103.04 (Reissue 2021). That 

statute provides that “[i]nterest as provided in § 45-103.02 

shall not accrue prior to the date of entry of judgment for . . . 

[a]ny action arising under Chapter 42[.]” § 45-103.04. Mark 

claims that this statute prohibited an award of prejudgment 

interest, because “Neb. Rev. Stat. § 42-370 provides the statutory basis for contempt cases in domestic relations matters.” 

Brief for appellant at 34. While we note that this court has long 

recognized that “[t]he power to punish for contempt is incident 

to every judicial tribune, derived from its very constitution, 

without any expressed statutory aid,” Kregel v. Bartling, 23 

Neb. 848, 852, 37 N.W. 668, 670 (1888), we will nonetheless 

assume for the sake of argument that this action arises under 

chapter 42 of the Nebraska Revised Statutes. Even with that 

assumption, the language of § 45-103.04 would only preclude 

the district court from ordering prejudgment interest pursuant to Neb. Rev. Stat. § 45-103.02 (Reissue 2021). We do not 

read it to limit a court’s equitable powers to order a party to 

pay interest.

[22-25] Our cases recognize that a court of equity has discretion to allow or withhold interest as is reasonable and just, 

except in cases where interest is recoverable as a matter of 

right. Bowers v. Lens, 264 Neb. 465, 648 N.W.2d 294 (2002). 

In addition, contempt proceedings may both compel obedience 

to orders and administer the remedies to which the court has 

found the parties to be entitled. Johnson v. Johnson, 308 Neb. 

623, 956 N.W.2d 261 (2021). Through its inherent powers of 

contempt, a court may order restitution for damages incurred 

as a result of failure to comply with a past order. Becher 

v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018); Sickler v. 
- 29 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016). And a court’s 

continuing jurisdiction over a dissolution decree includes the 

power to provide equitable relief in a contempt proceeding. 

Sickler, supra. Where a situation exists which is contrary to 

the principles of equity and which can be redressed within the 

scope of judicial action, a court of equity will devise a remedy 

to meet the situation. Id.

Under these principles, the district court had discretion to 

order interest to accrue prior to the date of the contempt order. 

Considering that the district court ordered the interest to accrue 

on expenses Mark was obligated to pay and that Sonia was 

deprived of the use of funds she paid toward those expenses, 

we find no abuse of discretion.

6. Attorney Fees and Expenses

In moving for a citation of contempt, Sonia requested reasonable attorney fees and any other relief deemed equitable by 

the court. At trial, Sonia presented evidence of the fees and 

expenses she had incurred in pursuing her contempt action. 

The district court’s contempt order awarded Sonia $7,346.96 

for attorney fees and expenses and ordered Mark to pay that 

sum through the court within 30 days.

On appeal, Mark assigns that the district court erred in 

ordering him to pay all of Sonia’s attorney fees. He does not 

dispute that Sonia incurred attorney fees and expenses in the 

amount awarded. Instead, Mark asserts that he argued and 

acted reasonably in opposing Sonia’s efforts to obtain the payments she believed Mark owed to her, and he asks us to reduce 

the amount of attorney fees awarded to Sonia to the extent that 

he has prevailed on appeal.

[26-29] Costs, including reasonable attorney fees, can be 

awarded in a contempt proceeding when there has been a finding of contempt. See Smeal Fire Apparatus Co. v. Kreikemeier, 

279 Neb. 661, 782 N.W.2d 848 (2010), disapproved on other 

grounds, Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 

867 (2012). Attorney fees in contempt cases fall under a 
- 30 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

court’s inherent power to do all things necessary to enforce 

its judgment. Wetovick v. County of Nance, 279 Neb. 773, 782 

N.W.2d 298 (2010). A trial court’s decision awarding or denying attorney fees will be upheld on appeal absent an abuse of 

discretion. McCullough v. McCullough, 299 Neb. 719, 910 

N.W.2d 515 (2018). A judicial abuse of discretion requires that 

the reasons or rulings of the trial court be clearly untenable 

insofar as they unfairly deprive a litigant of a substantial right 

and a just result. Id.

Upon our review of the record, we conclude that the district 

court’s award of attorney fees to Sonia was not clearly untenable. Sonia incurred attorney fees in her contempt action to 

secure substantial court-ordered payments from Mark, and she 

prevailed. Our opinion today affirms the district court’s ruling, 

modifying a relatively small portion of its order. We conclude 

that the district court did not abuse its discretion in its award of 

attorney fees and expenses to Sonia.

V. CONCLUSION

We modify the district court’s order to delete contempt findings and purge provisions related to the children’s 2016 medical expenses and future medical expenses. Finding no merit to 

Mark’s remaining assignments of error, we otherwise affirm.

Affirmed as modified.

Miller-Lerman, J., dissenting in part.

In her successful effort to avoid contempt, Sonia previously 

and unequivocally asserted that the cost of wilderness camp 

was not a medical expense and the district court found in its 

September 26, 2019, order that “[t]he evidence at trial showed 

that [the daughter] did not have a medical problem . . . .” Sonia 

is now judicially estopped from claiming the cost is a medical 

expense, and I would reverse that portion of the September 

10, 2020, order to the extent it found Mark in contempt for 

not paying for the wilderness camp as a medical expense. 

Accordingly, I respectfully dissent from that portion of the 
- 31 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

majority opinion which concluded that Sonia was not judicially 

estopped from claiming the wilderness camp cost as a medical 

expense and which affirmed the district court’s finding that 

Mark was in contempt for not paying for the wilderness camp 

as a medical expense.

Although I recognize there is plenty of animus and blame 

to go around, I write separately to state that in my view, the 

course of this litigation offends the integrity of the courts. 

I recognize that the definition of “medicine” can vary with 

the context. However, what I find offensive in particular is 

Sonia’s willingness to take convenient positions and play the 

court accordingly. See Cleaver-Brooks, Inc. v. Twin City Fire 

Insurance Co., 291 Neb. 278, 865 N.W.2d 105 (2015).

In opposition to Mark’s contempt claim to the effect that 

Sonia failed to consult with him before sending the daughter 

to wilderness camp, Sonia testified, and repeated in closing 

argument, that consultation was not necessary because it was 

not medical treatment. Having been convinced by Sonia, in its 

September 26, 2019, order, the district court determined that 

the wilderness camp expense was not medical. Mark accepted 

this ruling and did not appeal.

But when Sonia later sought reimbursement for the camp fee 

and the cost of the escort transportation which took the daughter to the wilderness camp at 3 a.m., thus permitting Sonia to 

take a trip to Spain and denying Mark access to his daughter, 

and after insurance paid Mark, Sonia conveniently labeled all 

the foregoing as medical expenses.

Convinced yet again by Sonia, in its 2020 order, the district 

court ignored the law of the case and Sonia’s previously winning position and determined that this time, the expenses were 

medical and Mark was in contempt for not paying them.

I cannot attribute Sonia’s incompatible and inconsistent 

positions as merely trial strategy or as reassessment of the 

same facts. They can only be described as an informed decision to mislead. Sonia’s conflicting positions are more than 
- 32 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

BECHER v. BECHER

Cite as 311 Neb. 1

inconsistent, they are an affront to the integrity of the court 

process. Accordingly, in my view, Sonia should be judicially 

estopped from asserting the late-breaking claim that the cost 

of the wilderness camp is medical, and I would reverse the 

portion of the order which found Mark in contempt predicated thereon.

Freudenberg, J., joins in this dissent.