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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

MOORE v. MOORE

Cite as 302 Neb. 588

Lucinda D. Moore, appellee, v. 

Thayne D. Moore, appellant.

___ N.W.2d ___

Filed March 22, 2019. No. S-18-273.

1. Divorce: Attorney Fees: Appeal and Error. In an action involving 

a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be 

affirmed in the absence of an abuse of discretion.

2. Divorce: Child Support: Appeal and Error. In an action involving 

a martial dissolution decree, factual determinations as to childcare 

expenses incurred are reviewed de novo on the record for an abuse 

of discretion.

3. Minors: Child Support. Supervision of children in the form of day 

camps, lessons, or activities may under the circumstances constitute 

childcare so long as such supervision is reasonable, in the child’s best 

interests, and necessary due to employment or for education or training 

to obtain a job or enhance earning potential.

4. Judges: Words and Phrases. A judicial abuse of discretion exists if the 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition.

5. Attorneys at Law: Trial: Stipulations: Parties. Stipulations voluntarily entered into between the parties to a cause or their attorneys, for 

the government of their conduct and the control of their rights during 

the trial or progress of the cause, will be respected and enforced by the 

courts, where such stipulations are not contrary to good morals or sound 

public policy.

6. Courts: Trial: Stipulations: Parties. Courts will enforce valid stipulations unless some good cause is shown for declining to do so, especially 

where the stipulations have been acted upon so that the parties could not 

be placed in status quo.

7. Divorce: Stipulations: Appeal and Error. As in other matters involving dissolution decrees, a court’s decision whether to approve and 

Nebraska Supreme Court Online Library

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

05/24/2019 12:07 AM CDT
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honor a stipulation is reviewed de novo on the record for an abuse 

of discretion.

8. Attorney Fees. Attorney fees and expenses may be recovered only 

where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.

9. Divorce: Attorney Fees. In awarding attorney fees in a dissolution 

action, a court shall consider the nature of the case, the amount involved 

in the controversy, the services actually performed, the results obtained, 

the length of time required for preparation and presentation of the case, 

the novelty and difficulty of the questions raised, and the customary 

charges of the bar for similar services.

Appeal from the District Court for Buffalo County: John

H. Marsh, Judge. Affirmed in part as modified, and in part 

vacated.

John D. Icenogle, of Bruner Frank, L.L.C., for appellant.

Heather Swanson-Murray, of Swanson Murray Law, L.L.C., 

P.C., for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. NATURE OF CASE

The ex-husband appeals from the district court’s order that 

he reimburse his ex-wife for half of certain “work related daycare expense[s]” for the parties’ three children, as required by 

the dissolution decree, and as required by Neb. Ct. R. § 4-214 

(rev. 2016) of the Nebraska Child Support Guidelines, which 

states that “[c]are expenses for the child” shall be allocated 

to the obligor parent. The ex-husband asserts that none of the 

expenses that the ex-wife testified she incurred as a means of 

providing adult supervision for her children while she worked, 

consisting of day camps, overnight camps, lessons, sitters, and 

transportation to and from the same, qualified as “work related 

daycare expense[s]” or “[c]are expenses for the child.” He 

argues they were instead merely “activities.” The ex-husband 

also asserts that the district court erred in awarding to the 
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MOORE v. MOORE

Cite as 302 Neb. 588

ex-wife $3,500 in attorney fees when the court found that the 

ex-husband’s complaint to modify, which he voluntarily dismissed after the parties had their respective experts conduct 

psychological/custody evaluations of the children, was not 

frivolous. Finally at issue is whether the district court erred in 

ordering the ex-husband to pay $2,500 toward the ex-wife’s 

expert’s evaluation fees, when the parties had stipulated that 

they would each pay their own expert’s fees.

II. BACKGROUND

1. Decree

A decree of dissolution of the marriage of Lucinda D. 

Moore and Thayne D. Moore was entered on October 1, 2014. 

The decree ordered that Lucinda be given sole physical and 

legal custody over the parties’ three minor children. One child 

was born in 2002, one in 2005, and one in 2006. Thayne was 

ordered to pay child support and “50% of said work related 

daycare expenses . . . within 10 days of being provided a 

receipt.” He was also ordered to share in the children’s medical 

expenses. Lucinda and Thayne were to inform each other of 

“activities or events” where a parent may participate. The order 

did not contain a provision specifically relating to payment of 

“activities or events.”

2. Complaint to Modify

On September 10, 2015, Thayne filed a complaint to modify 

the decree due to a material change of circumstances. Thayne 

alleged that Lucinda was “unwilling to co-parent” with him 

and had been inflicting “substantial mental abuse” on their 

children. He asked the court to modify the decree by awarding 

sole physical and legal custody of the children to him. Lucinda 

generally denied the operative allegations of the complaint and 

asked that it be dismissed.

(a) Motions for Expert Evaluations

Lucinda moved for a “psychological/custody evaluation” of 

the children. Thayne joined the motion for a psychological/
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custody evaluation and nominated an expert to conduct the 

evaluation, proposing that both parties share jointly in the 

expense. Lucinda proposed Dr. Theodore DeLaet as the expert 

to conduct the evaluation instead. On May 2, 2016, the 

court granted the motions for psychological/custody evaluations but ordered the parties to stipulate who should conduct 

the evaluation and how the costs of the evaluation should 

be divided.

Lucinda and Thayne were unable to reach an agreement on 

a single expert to perform the evaluation. They instead jointly 

stipulated that they would each use his or her own expert 

to conduct independent evaluations of the children and that 

they would each be solely responsible for his or her respective expert’s fees and expenses. On June 3, 2016, the court 

issued an order approving the stipulation and providing that 

Lucinda and Thayne could have evaluations conducted by 

their respectively chosen experts, with Lucinda and Thayne 

to be solely responsible for their respective expert’s fees 

and expenses.

(b) Motion to Reduce Daycare 

Expenses to Judgment

On January 30, 2017, Lucinda filed a “Motion to Reduce 

Daycare Expenses to Judgment,” in which she asked the court 

to determine daycare expenses owed by Thayne to Lucinda and 

reduce such expenses to a judgment against Thayne.

(c) Thayne’s Motion to Dismiss 

Without Prejudice

On February 15, 2017, the day before the scheduled hearing on Thayne’s complaint for modification, Thayne moved 

to dismiss his complaint without prejudice. The motion to dismiss was made after the psychological/custody evaluations had 

been conducted. DeLaet’s evaluation had not been available to 

Thayne until January 17, 2017. Neither Thayne’s nor Lucinda’s 

expert recommended a change in custody.
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(d) February 15, 2017, 

Order of Dismissal

The court granted Thayne’s motion to dismiss the same day 

that the motion was filed. The court ordered each party to bear 

his or her own costs. The court did not at that time take up 

Lucinda’s motion to reduce daycare expenses to judgment.

(e) Lucinda’s Motion for 

Attorney Fees

On February 21, 2017, Lucinda moved for an award of attorney fees incurred as a result of the dismissed complaint to modify and for such further relief as the court deemed equitable. 

Thayne responded with a motion, by “Special Appearance,” to 

dismiss Lucinda’s motion for attorney fees on the ground that 

it was the filing of a new lawsuit without service of process.

By an order dated June 19, 2017, the court denied Lucinda’s 

motion for attorney fees. It still had not resolved her motion to 

reduce daycare expenses to judgment, however.

(f) Order to Alter or Amend 

June 19, 2017, Order

Lucinda timely moved to vacate, alter, or amend the June 

19, 2017, order on the ground that she had been denied an 

opportunity to be heard on her motion for attorney fees. On 

July 19, the court altered and amended its June 19 order.

The court took stock of Lucinda’s unresolved motion to 

reduce daycare expenses to judgment and concluded that it 

was not a proper motion within the modification proceedings 

brought by Thayne. The court explained that the question 

of daycare expenses was not raised in the complaint or in 

Lucinda’s answer to the complaint. The court concluded that 

the “motion” was a request for relief, which required a complaint and service of process. Thus, the court did not consider 

the motion as being properly before it.

In contrast, the court considered Lucinda’s motion for attorney fees to be incidental to Thayne’s motion to dismiss. 

Further, the court considered Thayne’s motion to dismiss to be 
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Cite as 302 Neb. 588

a general appearance. It overruled Thayne’s motion to dismiss 

Lucinda’s motion for attorney fees.

The court altered and amended its June 19, 2017, order to 

state: “[Thayne’s] Special Appearance is overruled. [Thayne’s] 

Motion to Dismiss is sustained as to [Lucinda’s] Motion to 

Reduce Daycare Expense to Judgment but overruled as to 

[Lucinda’s] Motion for Attorney Fees.”

The court did not at that time rule on Lucinda’s motion for 

attorney fees.

(g) Complaint to Reduce Daycare 

Expenses to Judgment

On August 1, 2017, Lucinda filed a “Complaint/Application 

to Reduce Daycare Expenses to Judgment” and served process. She asked for attorney fees and costs associated with 

the motion and such other relief as the court deemed just 

and equitable.

Evidentiary hearings were conducted to address Lucinda’s 

motion for attorney fees and her complaint/application to 

reduce daycare expenses to judgment.

(i) Daycare Expenses

In relation to her complaint/application to reduce daycare 

expenses to judgment, Lucinda sought reimbursement for 

what she described as “daycare expenses” incurred during 

2015 and 2016 when the children were not in school. She 

testified that she had arranged “activities . . . that would serve 

as day care.”

She chose the activities both for their enrichment and for 

the level of supervision they provided. Some of the activities 

were within walking or biking distance from the house, and 

the children would transport themselves to and from the activity. Others required transportation, and Lucinda incurred some 

expenses in paying young adults to transport the children or to 

watch them for shorter periods of time.

Lucinda explained that the children were not of an age 

where she thought it suitable for them to all be home by 
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themselves the entire time she was at work. Lucinda said that 

the oldest child would occasionally watch the younger two for 

shorter periods of time, but she did not believe it appropriate to have her oldest child watch her younger siblings full 

time during Lucinda’s work day every day of school break. 

The oldest child was apparently 13 years old by the summer 

of 2016.

Lucinda testified that she generally worked from 6 a.m. to 

2:30 p.m. but that on certain days, she worked from 6 a.m. to 

noon. Lucinda explained that her schedule fluctuated. She testified that all the expenses she sought reimbursement for were 

incurred while she was at work.

The expenses Lucinda sought reimbursement for as “daycare” fell roughly under five categories: day camps, overnight 

camps, lessons, sitters, and transportation. Lucinda testified 

that the expense of sending the children to a local daycare, 

where they had been cared for before, would have been significantly more, and she provided documentation of that fact.

Specifically, Lucinda sought 50 percent reimbursement 

for childcare services for her two younger children offered 

through the Kearney, Nebraska, public school system and run 

by school staff, which expenses totaled $130 in 2015 and $175 

in 2016.

She sought reimbursement for three different volleyball 

camps which cost a total of $210 in 2015 ($90 for the oldest 

and $120 for the younger two) and a total of $120 in 2016 (for 

all three children).

She also sought reimbursement for 50 percent of the $130 

fee incurred for a basketball camp in 2016. Lucinda sought 

50 percent reimbursement for $375.90 incurred in sending the 

three children to a “Crossfit” speed and agility camp in 2015, 

which lasted from 9 to 11 a.m. each day, during a period of 

time when she worked until noon.

Lucinda also sought reimbursement of 50 percent of $250 

in piano lessons, apparently for all three children, and $60 in 

dance lessons for the youngest child. For 2016, she sought 50 
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percent reimbursement for $120 in fees for a “tennis camp” 

that all three children attended, and which lasted 11⁄2 hours each 

day. Lucinda testified that these lessons provided supervision 

while she was at work.

Lucinda submitted $81.20 in childcare costs provided by 

trusted young adults in 2015. She submitted $110 in transportation costs provided by trusted young adults and associated with getting the children to and from various camps 

and lessons.

Finally, Lucinda sought reimbursement for one-quarter of 

the expenses incurred in sending the three children to overnight 

camps during the summers of 2015 and 2016. The expenses for 

these camps, referring to the copies of the checks in the record, 

were $451 in 2015 and $490 in 2016, totaling $941.

(ii) Attorney Fees and 

Expert Witness Fees

Lucinda reiterated her request for attorney fees and asked 

that she be reimbursed for the fees related to DeLaet’s evaluation. Lucinda entered into evidence the itemized billing statement by DeLaet, which demonstrated a total fee of $7,000. 

The court also received the billing statement for $571.33 in 

hotel accommodations while evaluations were performed in 

Omaha, Nebraska, the location of DeLaet’s office. The court 

accepted into evidence an affidavit by Lucinda’s attorney, 

averring that since the complaint to modify, Lucinda had 

incurred $11,121.56 in attorney fees and costs. Itemized bills 

were attached to the affidavit. Lucinda believed that she 

should not be bound by the stipulation regarding expert fees, 

because the agreement contemplated that the expert reports 

would be submitted at the hearing on Thayne’s complaint 

and such hearing was never held because of Thayne’s voluntary dismissal.

(h) February 21, 2018, Order

On February 21, 2018, the court ruled on Lucinda’s motions 

to reduce daycare expenses to judgment, for attorney fees, and 
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expert fees. Citing Nimmer v. Nimmer,

1

 the court explained that 

it had jurisdiction over the motion regarding daycare expenses 

pursuant to its continuing jurisdiction over the decree. And 

the court ultimately found that the claimed expenses should 

be “equitably treated as work-related childcare.” Accordingly, 

the court granted Lucinda’s motion and entered judgment 

against Thayne in the amount of $1,394.35. It appears from 

the record that the district court apportioned to Thayne 50 percent of the total expense for all the claimed expenses, except 

for the overnight camps. The court apportioned 50 percent of 

one-quarter, or one-eighth, of the total cost of $941 for the 

overnight camps.

The court explained that the camps and activities served a 

“dual purpose” of providing both a supervised environment 

during Lucinda’s working hours and opportunities for academic or athletic development. Moreover, the cost of such care 

was less than half the cost of Lucinda’s credible estimated cost 

for alternate childcare.

The court granted Lucinda’s motion for attorney fees. The 

court explained that it was not doing so because Thayne’s 

complaint to modify was frivolous; to the contrary, the court 

explained it appeared that Thayne had brought the complaint 

out of a credible concern for his minor children and that 

Lucinda took the complaint seriously enough to retain her own 

expert witness. The court further noted that DeLaet’s evaluation, which appeared to be a factor in Thayne’s motion to 

dismiss, was not available until approximately 1 month before 

Thayne filed his motion to dismiss.

The court considered Lucinda to be the prevailing party. 

The court noted that DeLaet’s evaluation appeared to be 

one of the factors considered by Thayne in dismissing his 

complaint to modify. The court also took into consideration 

the fact that an earlier dismissal would have avoided significant cost.

1 Nimmer v. Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979).
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The court awarded Lucinda attorney fees in the amount of 

$3,500. The court also ordered, without additional explanation, 

that Thayne pay $2,500 toward Lucinda’s expert’s fees.

Thayne appeals.

III. ASSIGNMENTS OF ERROR

Thayne assigns that the district court erred in (1) ruling 

that extracurricular activity costs constituted daycare expenses, 

(2) awarding attorney fees to Lucinda after determining that 

Thayne’s case was not frivolous and dismissal was preferable to proceeding to trial, and (3) awarding expert witness 

fees without finding exceptional circumstances warranting the 

stipulation.

IV. STANDARD OF REVIEW

[1] In an action involving a marital dissolution decree, the 

award of attorney fees is discretionary with the trial court, is 

reviewed de novo on the record, and will be affirmed in the 

absence of an abuse of discretion.2

[2] In an action involving a martial dissolution decree, 

factual determinations as to childcare expenses incurred are 

reviewed de novo on the record for an abuse of discretion.3

V. ANALYSIS

1. Childcare Expenses

Thayne first argues that the district court erred in finding 

that the claimed expenses fall under the category of “daycare” or “childcare.” Although contempt actions are the proper 

means to enforce a prior court order, including a child support 

2 See Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014).

3 See, McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018); 

Robbins v. Robbins, 3 Neb. App. 953, 536 N.W.2d 77 (1995), overruled in 

part on other grounds, Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 

661, 782 N.W.2d 848 (2010); Hoover v. Hoover, 2 Neb. App. 239, 508 

N.W.2d 316 (1993).
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decree,4 Thayne does not take issue with how Lucinda’s complaint was denominated.

Thayne points out that Neb. Rev. Stat. § 42-364.17 (Reissue 

2016) provides:

A decree of dissolution, legal separation, or order 

establishing paternity shall incorporate financial arrangements for each party’s responsibility for reasonable and 

necessary medical, dental, and eye care, medical reimbursements, day care, extracurricular activity, education, 

and other extraordinary expenses of the child and calculation of child support obligations.

Thayne argues that because “day care,” “extracurricular activity,” and “education” are listed separately in § 42-364.17, they 

are necessarily distinct concepts. He argues that if Lucinda 

wished to be reimbursed for what were in reality extracurricular activities or education, she should have filed a complaint 

for modification of the decree.

Neb. Rev. Stat. § 42-364.16 (Reissue 2016) states that child 

support shall be established in accordance with guidelines 

provided by the rules of the Supreme Court, unless one or 

both parties have produced sufficient evidence to rebut the 

presumption that the application of the guidelines will result in 

a fair and equitable child support order. Under § 4-214 of the 

Nebraska Child Support Guidelines, the relevant terminology is 

“[c]are expenses for the child”:

Care expenses for the child for whom the support is being 

set, which are due to employment of either parent or to 

allow the parent to obtain training or education necessary to obtain a job or enhance earning potential, shall 

be allocated to the obligor parent as determined by the 

court, but shall not exceed the proportion of the obligor’s 

parental contribution (worksheet 1, line 6) and shall be 

4 See Neb. Rev. Stat. § 42-358(2) (Reissue 2016). See, also, e.g., State on 

behalf of Mariah B. & Renee B. v. Kyle B., 298 Neb. 759, 906 N.W.2d 17 

(2018).
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added to the basic support obligation computed under 

these guidelines.

(Emphasis supplied.) We find this terminology to be interchangeable with the term “day care” utilized in § 42-364.17 

and in the custody decree here at issue.

This is the first time our court has addressed whether 

camps, lessons, and supervised activities can be considered 

childcare expenses allocated as part of a decree of child support. Under similar guidelines in other states, camps and other 

supervised activities are considered childcare expenses when 

they provide supervision for a child in need of care during the 

custodial parent’s employment or educational training.5 The 

basic requirements for such expenses to be considered childcare or daycare are that they be work- or education-related 

and reasonable.6

Thus, the court in Marriage of Mattson7 held that the trial 

court did not abuse its discretion in ordering the noncustodial parent to pay a share of YMCA; soccer; basketball; and 

music, art, and drama camps, as well as other day activities, 

on the grounds that they were reasonable and necessary “daycare expenses” during school breaks. The court explained that 

while the statutory scheme did not define daycare expenses 

or provide guidelines for determining what types of expenses 

are reasonable and necessary, it must interpret the language of 

the statute consistent with the overall purpose of the statutory 

framework of preventing a harmful reduction in the child’s 

standard of living and to allocate parental responsibilities in 

5 See, Simpson v. Simpson, 650 N.E.2d 333 (Ind. App. 1995); Trausch-Azar 

v. Trausch, 983 S.W.2d 199 (Mo. App. 1998); In re Arabian, 151 N.H. 

109, 855 A.2d 560 (2004); Micciche v. Micciche, 62 A.D.3d 673, 879 

N.Y.S.2d 502 (2009); Marriage of Mattson, 95 Wash. App. 592, 976 P.2d 

157 (1999); Laura W. Morgan, Summer Camp Expenses and Child Support 

Guidelines, 17 No. 3 Divorce Litig. 47 (Mar. 2005).

6 See Laura W. Morgan, Child Support Guidelines: Interpretation and 

Application § 7.02 (2d ed. 2018).

7 Marriage of Mattson, supra note 5, 95 Wash. App. at 602, 976 P.2d at 163.
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accordance with the child’s best interests. The court noted that 

although the children were 11 and 13 years of age, “[e]ven 

if their physical health and maturity might enable them to 

avoid harm without an adult present, complete lack of adult 

supervision during school vacations would not be in their 

best interests.”8

The court in Simpson v. Simpson9 similarly affirmed the 

district court’s order requiring the noncustodial parent to pay 

a share of summer camp expenses for his 14-year-old child, 

despite his contention that the child could care for herself and 

even babysit others. The court noted that the child support 

guidelines did not set forth a specific age as to when childcare 

expenses are unnecessary and therefore unreasonable and that 

the determination of whether the expenses are necessary and 

reasonable rests in the sound discretion of the trial court.10

[3] We have repeatedly held that the paramount concern 

in child support cases, whether in the original proceeding 

or subsequent modification, remains the best interests of the 

child.11 We find no merit to Thayne’s argument that because 

the Legislature listed in § 42-364.17 “day care,” “extracurricular activity,” and “education” separately, these are necessarily 

mutually exclusive concepts. Indeed, this court is hard pressed 

to imagine childcare that does not entail some educational or 

activity component, and the hard-line definition Thayne suggests is contrary to the flexible, fact-specific inquiries that 

otherwise govern child support.12 We hold that supervision of 

children in the form of day camps, lessons, or activities may 

8 Id. at 600-01, 976 P.2d at 162. See, also, Price v. Price, 205 W. Va. 252, 

517 S.E.2d 485 (1999).

9 Simpson v. Simpson, supra note 5.

10 See id.

11 See, e.g., Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009); Peter 

v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002); Sabatka v. Sabatka, 245 

Neb. 109, 511 N.W.2d 107 (1994).

12 See, e.g., Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).
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under the circumstances constitute childcare so long as such 

supervision is reasonable, in the child’s best interests, and necessary due to employment or for education or training to obtain 

a job or enhance earning potential.

[4] We review factual determinations as to childcare expenses 

incurred de novo on the record for an abuse of discretion.13 A 

judicial abuse of discretion exists if the reasons or rulings of 

a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition.14 As to the majority of the expenses 

found compensable by the district court, we find no such abuse 

of discretion.

The district court did not abuse its discretion in determining in light of the children’s best interests that the expenses 

incurred for day camps, activities, lessons, sitters, and transportation constituted reasonable and necessary care while 

Lucinda was at work. There was no evidence that Thayne had 

objected to the particular nature of the camps, activities, and 

lessons chosen by Lucinda in order to provide supervision and 

care while she was at work. The camps, activities, lessons, sitter services, and transportation, occurred while Lucinda was 

at work. Lucinda explained that it was not suitable for the 

children to be home by themselves during the entire time she 

was at work. Thayne’s counsel conceded at oral arguments that 

but for the camps, lessons, activities, sitters, and transportation, the children would have been supervised at a traditional 

daycare facility. Lucinda provided undisputed evidence that 

care at such a traditional daycare facility would have been 

more costly. Thus, we affirm the district court’s finding that the 

13 See, McCullough v. McCullough, supra note 3; Robbins v. Robbins, supra 

note 3; Hoover v. Hoover, supra note 3. See, also, Simpson v. Simpson, 

supra note 5; Trausch-Azar v. Trausch, supra note 5; In re Arabian, supra

note 5; Micciche v. Micciche, supra note 5; Marriage of Mattson, supra

note 5; Morgan, supra note 5; Morgan, supra note 6.

14 Armkneckt v. Armkneckt, 300 Neb. 870, 916 N.W.2d 581 (2018).
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expenses for day camps, lessons, activities, sitters, and transportation were “[c]are expenses for the child” under § 4-214 

or “day care” expenses under § 42-364.17 that Thayne had an 

obligation under the dissolution decree to pay.

But we find that the court’s decision categorizing the overnight camps as work-related childcare was untenable. Though 

Lucinda sought only a portion of the total cost of those camps, 

most of the time spent in the overnight camps were not hours 

that Lucinda was working. The fees for such camps cannot 

be broken down by the hour. We have found no other court 

that considers overnight camps amenable to being considered 

work- or education-related childcare when the parent works 

only 8 hours per day. Furthermore, while not controlling, we 

note that overnight camps are not considered work-related 

childcare expenses for purposes of the federal child and dependent care tax credit.15 Overnight camps might be appropriately 

specified as a shared expense in a support order, but the wording of the order here at issue did not put Thayne on notice that 

he would be responsible for overnight camps as “work related 

daycare expense[s].”

Therefore, we affirm the district court’s order regarding 

childcare expenses with the exception of its apportionment of 

the costs of overnight camps, which we vacate as an abuse of 

discretion. We modify the award of $1,394.35 by deducting 

the $117.63 attributable to overnight camps. The amount of 

childcare owed shall thus be $1,276.72.

2. Expert Fees

[5,6] Next, Thayne argues that the district court should have 

honored the stipulation voluntarily entered into between the 

parties that they would each pay the fees of their respective 

experts. We agree. Stipulations voluntarily entered into between 

the parties to a cause or their attorneys, for the government of 

15 See U.S. Dept. of Treas., I.R.S. Publication 503, cat. No. 15004M, Child 

and Dependent Care Expenses (Dec. 19, 2017).
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their conduct and the control of their rights during the trial or 

progress of the cause, will be respected and enforced by the 

courts, where such stipulations are not contrary to good morals 

or sound public policy.16 Courts will enforce valid stipulations 

unless some good cause is shown for declining to do so, especially where the stipulations have been acted upon so that the 

parties could not be placed in status quo.17

[7] As in other matters involving dissolution decrees, a 

court’s decision whether to approve and honor a stipulation is 

reviewed de novo on the record for an abuse of discretion.18

But the district court failed to make any finding of good cause 

or other reasoning as to why it chose not to enforce the stipulation. Lucinda argues that such finding was implicit and that 

she demonstrated exceptional circumstances, specifically, that 

Thayne’s last-minute voluntary dismissal of his complaint rendered her expert unnecessary, but the district court found that 

the expert’s report was likely instrumental in Thayne’s decision 

to dismiss the complaint.

Furthermore, the district court explicitly found that the complaint that prompted the expert evaluations was not frivolous 

and that the last-minute voluntary dismissal was not in bad 

faith. The parties acted in reliance upon the stipulation that 

had been approved by the court, each hiring their own expert. 

There was at the time of the February 21, 2017, order no means 

to return the parties to the status quo. Finally, there was no 

evidence that any portion of DeLaet’s fees were incurred as a 

result of circumstances that were different than those present 

when the parties stipulated to pay their own expert fees.

There was simply no evidence by which the court could 

have found good cause for disregarding the stipulation and 

concluding that honoring the parties’ stipulation would be 

16 Martin v. Martin, 188 Neb. 393, 197 N.W.2d 388 (1972).

17 Id.

18 See, McCullough v. McCullough, supra note 3; Garza v. Garza, supra

note 2.
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contrary to good morals or sound public policy. Thus, the 

court’s award of a portion of the expert fees incurred, against 

the stipulated agreement expressly approved by the court stating that each party would be responsible for the fees of their 

own experts, was an abuse of discretion. We vacate the portion 

of the district court’s order that awarded $2,500 in expert witness fees.

3. Attorney Fees

Lastly, Thayne asserts that the court erred in awarding 

Lucinda attorney fees in the amount of $3,500. Thayne argues 

that attorney fees were inappropriate because he voluntarily 

dismissed his complaint, which was brought in good faith. 

Lucinda does not cross-appeal the amount of the attorney 

fees awarded.

[8] Attorney fees and expenses may be recovered only where 

provided for by statute or when a recognized and accepted 

uniform course of procedure has been to allow recovery of 

attorney fees.19 Attorney fees shall be awarded against a party 

who alleged a claim or defense that the court determined was 

frivolous, interposed any part of the action solely for delay 

or harassment, or unnecessarily expanded the proceeding by 

other improper conduct.20 Additionally, in dissolution cases, 

as a matter of custom, attorney fees and costs are awarded to 

prevailing parties.21 Finally, a uniform course of procedure 

exists in Nebraska for the award of attorney fees in dissolution cases.22

Thus, the fact that Thayne’s complaint was not frivolous or 

maintained in bad faith did not prevent the court from awarding attorney fees.

19 Garza v. Garza, supra note 2.

20 See Neb. Rev. Stat. § 25-824 (Reissue 2016).

21 See, e.g., Garza v. Garza, supra note 2; Noonan v. Noonan, 261 Neb. 552, 

624 N.W.2d 314 (2001).

22 Garza v. Garza, supra note 2.
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[9] In an action involving a marital dissolution decree, the 

award of attorney fees is discretionary with the trial court, is 

reviewed de novo on the record, and will be affirmed in the 

absence of an abuse of discretion.23 In awarding attorney fees 

in a dissolution action, a court shall consider the nature of the 

case, the amount involved in the controversy, the services actually performed, the results obtained, the length of time required 

for preparation and presentation of the case, the novelty and 

difficulty of the questions raised, and the customary charges of 

the bar for similar services.24

The district court found that Lucinda was the prevailing 

party. Although Thayne voluntarily dismissed his complaint 

to modify, Lucinda prevailed in her complaint to enforce the 

dissolution decree in relation to childcare expenses. Lucinda 

presented an affidavit by her attorney outlining over $11,000 in 

attorney fees and costs. We find no abuse of discretion in the 

award of $3,500 in attorney fees.

VI. CONCLUSION

For the foregoing reasons, we affirm the February 21, 2018, 

order as modified and vacate the awards of $2,500 in expert 

witness fees and $117.63 in overnight camp expenses. The 

modified order awards $1,276.72 in childcare expenses and 

$3,500 in attorney fees.

 Affirmed in part as modified, 

and in part vacated. 

23 See id.

24 Id.