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Nebraska Supreme Court Advance Sheets

299 Nebraska Reports

McCULLOUGH v. McCULLOUGH

Cite as 299 Neb. 719

Wallace R. McCullough, appellant, v. 

Michelle A. McCullough, appellee.

___ N.W.2d ___

Filed April 26, 2018. Nos. S-16-1086, S-16-1187, S-17-037.

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 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.

2. 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.

3. 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.

4. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

5. Judges: Recusal: Appeal and Error. A motion requesting a judge to 

recuse himself or herself on the ground of bias or prejudice is addressed 

to the discretion of the judge, and an order overruling such a motion will 

be affirmed on appeal unless the record establishes bias or prejudice as a 

matter of law.

6. Contempt: Final Orders. An order of contempt in a postjudgment proceeding to enforce a previous final judgment is properly classified as a 

final order.

7. 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.

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

relief in a contempt proceeding.

9. Contempt: Courts: Equity. Contempt proceedings may both compel 

obedience to orders and administer the remedies to which the court has 

found the parties to be entitled. Where a situation exists that 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.

10. Contempt: Words and Phrases. Civil contempt requires willful disobedience as an essential element. “Willful” means the violation was committed intentionally, with knowledge that the act violated the court order. 

If it is impossible to comply with the order of the court, the failure to 

comply is not willful.

11. Words and Phrases: Appeal and Error. Willfulness is a factual determination to be reviewed for clear error.

12. Contempt: Proof: Evidence: Presumptions. Outside of statutory procedures imposing a different standard or an evidentiary presumption, all 

elements of contempt must be proved by the complainant by clear and 

convincing evidence and without any presumptions.

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

fees, can be awarded in a contempt proceeding.

14. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

Appeals from the District Court for Sarpy County: Daniel E. 

Bryan, Jr., Judge. Judgments in Nos. S-16-1086 and S-17-037 

affirmed. Appeal in No. S-16-1187 dismissed.

William D. Gilner for appellant.

Edith T. Peebles and Tosha Rae D. Heavican, of Brodkey, 

Peebles, Belmont & Line, L.L.P., for appellee.

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

Funke, JJ.

Miller-Lerman, J.

NATURE OF CASE

In these three consolidated appeals, Wallace R. McCullough 

appeals orders entered by the district court for Sarpy County 
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Cite as 299 Neb. 719

in the proceeding for the dissolution of his marriage to 

Michelle A. McCullough. Wallace appeals, inter alia, an order 

of contempt for failing to make childcare and property division equalization payments, an order of contempt for failing to 

pay child support, and an order setting the amount of a supersedeas bond. We dismiss the appeal of the order regarding the 

amount of the supersedeas bond, and we affirm the district 

court’s orders in the two other appeals.

STATEMENT OF FACTS

On March 22, 2010, the district court for Sarpy County 

entered a decree dissolving Wallace and Michelle’s marriage. 

In the decree of dissolution, the district court ordered, inter 

alia, that legal and physical custody of the couple’s children 

be awarded to Michelle, subject to Wallace’s parenting time; 

that Wallace pay Michelle child support of $3,005 per month; 

that Wallace pay a share of childcare expenses incurred by 

Michelle; and that Wallace pay Michelle $552,124.89 to 

equalize the property division, payable at a rate of $50,000 

per year plus interest until paid in full.

On June 12, 2012, Michelle filed a complaint for modification of the decree of dissolution. She requested, inter alia, 

that Wallace’s parenting time be supervised and that proceeds 

from the sale of certain property be reassigned to her. On July 

30, Wallace filed an answer and a counterclaim in which he 

requested, inter alia, that he be awarded sole custody of the 

children. On August 6, Michelle filed an answer to Wallace’s 

counterclaim in which she requested the counterclaim be 

dismissed. On August 7, Wallace filed an amended answer 

and counterclaim in which he further requested, inter alia, 

a change in his child support obligation based on a change 

in income and that he be given credit for amounts totaling 

$268,400 that he alleged should be treated as having been paid 

toward the property settlement. On January 21, 2014, Wallace 

filed another amended answer and counterclaim in which he 

made additional allegations and requests.
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Cite as 299 Neb. 719

On June 8, 2016, Michelle filed a verified complaint for 

contempt in which she alleged that Wallace had failed to pay 

child support, childcare expenses, and property equalization 

payments required under the decree of dissolution. The district 

court entered an order on June 13 for Wallace to show cause 

why he should not be held in contempt based on Michelle’s 

complaint. Wallace entered a denial, and the court set a final 

hearing on the matter.

After the hearing on Michelle’s complaint for contempt, 

the district court entered an order on September 30, 2016. In 

the order, the court stated that Wallace had asked to continue 

the contempt proceedings with regard to child support payments on the basis that the amended counterclaim he had filed 

on January 21, 2014, in which he sought a reduction of his 

child support obligation, was still pending. The court noted 

that Wallace had not prosecuted that counterclaim; nevertheless, the court granted a continuance of the portion of the 

contempt proceeding that pertained to child support. The court 

scheduled a trial for December 8, 2016, on Wallace’s amended 

answer and counterclaim, as well as on Michelle’s June 12, 

2012, complaint for modification. The court stated that it 

would consider the child support portion of the complaint for 

contempt at the December 8 trial. The court further stated that 

on February 21, 2014, it had ordered Wallace to undergo an 

evaluation in connection with his request for modification of 

the children’s custody; the court ordered Wallace to submit the 

completed evaluation by October 17, 2016.

In addition to the foregoing, the September 30, 2016, order 

also stated that the court had heard testimony regarding the 

remaining portions of Michelle’s contempt allegations against 

Wallace. The court then found Wallace to be in willful and 

contumacious violation of the decree of dissolution in two 

respects: (1) He had failed to pay required childcare expenses 

totaling $5,031.23, and (2) he had failed to pay property equalization installments, with interest, totaling $317,314.99. The 

court ordered Wallace to pay Michelle’s attorney fees totaling 
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Cite as 299 Neb. 719

$3,317.51. The court stated that the sums Wallace owed to 

Michelle totaled $325,663.73. The court set up a purge plan 

pursuant to which it ordered Wallace to pay $750 per month 

to the clerk of the court commencing October 1 and continuing on the first day of each month until the amount was paid 

in full. The court ordered that if Wallace failed to make a 

payment on or before the first day of the month, he would 

be jailed for 15 days but would be released if he remedied 

the deficit.

Wallace filed a motion for a new hearing or reconsideration 

of the September 30, 2016, order. On November 4, the district 

court denied the motion.

On November 17, 2016, Wallace filed a notice of appeal 

in which he stated his intent to appeal the September 30 

and November 4 orders. That appeal is docketed as case No. 

S-16-1086.

On November 18, 2016, the district court held a hearing to consider a motion by Michelle to dismiss part of 

Wallace’s counterclaim for modification of the decree of dissolution. Michelle argued that the counterclaim should be dismissed because Wallace had failed to comply with the court’s 

February 21, 2014, order to undergo an evaluation and that 

he had failed to submit such evaluation by October 17, 2016, 

as required in the court’s September 30 order. At the hearing, 

Wallace admitted the evaluation had not been completed, but 

he asserted that he had been confused as to the date by which 

the evaluation was to be submitted and that he had an evaluation scheduled for an unspecified date in December. Wallace 

further argued that because he had filed a notice of appeal on 

November 17 with regard to the court’s September 30 and 

November 4 orders, all proceedings in this matter, including 

those issues set for trial on December 8, should be stayed 

pending the appeal.

On November 28, 2016, the court entered an order ruling on matters addressed at the November 18 hearing. The 

court stated that the September 30 order “dealt solely with 
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McCULLOUGH v. McCULLOUGH

Cite as 299 Neb. 719

the limited issues of contempt dealing with child care and 

property equalization.” The court stated that although issues 

regarding contempt related to child support were to be heard 

on December 8, it had “separated the . . . issues on contempt.” 

The court assumed that the September 30 order was a final 

order for purposes of appeal, and it determined that “pending 

applications for modifications [of the decree of dissolution] 

or motions to dismiss portions of such applications are stayed 

pending the appeal.” However, the court determined that it 

retained jurisdiction to enforce the September 30 contempt 

order, because Wallace had not asked the court to set a supersedeas bond, and it further determined that Michelle’s “pending 

contempt action for enforcement of this Court’s child support 

order is not stayed without posting a supersedeas bond.”

On November 29, 2016, Wallace filed a motion to set 

a supersedeas bond pursuant to Neb. Rev. Stat. § 25-1916 

(Reissue 2016). On November 30, the district court entered 

an order with respect to the supersedeas bond. At a hearing on the supersedeas bond, Wallace’s attorney had argued 

that at the earlier September 14 contempt hearing, Wallace 

had testified that “he didn’t have any assets or income at the 

present time” and that his net worth was less than $10,000. 

Wallace requested that “the bond amount be set at 50 percent 

of that amount.” In its November 30 order, the court specifically rejected Wallace’s request that the bond amount be 

set based on 50 percent of “personal assets which total less 

than $10,000.00.” The court instead set a bond of $45,000 

and stated that it had determined such amount based on the 

monthly purge payment Wallace was required to make pursuant to the September 30 contempt order, the monthly child 

support he was required to pay pursuant to the decree of dissolution, and the amount of time the court estimated the appeal 

of the September 30 order would take. The court stated that 

the hearing set for December 8 would “take place as scheduled unless or until [Wallace] posts bond with the Clerk of the 

District Court of Sarpy County.”
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On December 5, 2016, Wallace filed a notice of appeal in 

which he stated his intent to appeal the November 28 and 

November 30 orders. That appeal is docketed as case No. 

S-16-1187.

On December 8, 2016, the court held a hearing and entered 

an order ruling on Michelle’s complaint for contempt with 

regard to child support. The court found Wallace to be in willful contempt of the portion of the decree of dissolution that 

required him to pay child support of $3,005 per month. The 

court ordered Wallace to be subject to a purge plan pursuant to 

which he would pay Michelle $2,000 of back child support per 

month, in addition to the $3,005 per month child support he 

was already required to pay, beginning January 1, 2017, and 

continuing the first of each month until back child support was 

paid in full. The court ordered that if Wallace failed to pay the 

required child support and the additional back child support 

on the first of each month, he would be “incarcerated no more 

than thirty (30) days each month.” The court entered a separate money judgment against Wallace and in favor of Michelle 

for attorney fees and costs of $3,131.75.

On December 30, 2016, Wallace filed a pleading in which 

he made three motions. The pleading included the following 

motions: (1) a motion for the judge to recuse himself, (2) a 

motion to set aside or reconsider the December 8 order of 

contempt, and (3) a “motion for judgment” in his favor on his 

amended counterclaim filed January 21, 2014.

With regard to the motion for recusal, Wallace alleged 

that on October 7, 2016, the judge had signed an arrest warrant against Wallace on the basis that on October 1, Wallace 

had failed to make the purge payment required under the 

September 30 order. Wallace alleged that the judge issued the 

warrant despite knowing that Wallace had attempted to make 

the payment on September 30 but that his check had been 

returned by the clerk of the district court because the clerk 

had not yet received the purge order. The record indicates 

that Michelle filed an application for the arrest warrant on 
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McCULLOUGH v. McCULLOUGH

Cite as 299 Neb. 719

October 6, that the arrest warrant was signed by the judge on 

October 7 but was not filed until October 11, that the court 

signed an order recalling the arrest warrant on October 12, and 

that the recall order was filed on October 13.

With regard to the “motion for judgment” on his counterclaim, Wallace alleged that although the court on November 

30, 2016, had granted Michele leave to file an answer to his 

January 21, 2014, counterclaim out of time, she had not filed 

an answer as of December 30, 2016, and that therefore, he was 

entitled to judgment in his favor on his counterclaim.

On January 6, 2017, the court entered an order in which 

it denied Wallace’s motion to recuse and his motion to set 

aside or reconsider the December 8, 2016, order. The court 

also stated that it was “without jurisdiction to hear [Wallace’s] 

Motion for Judgment on the Pleadings with respect to the 

September 30, 2016 Order” and that Wallace’s “Motion for 

Judgment on the Pleadings is denied with respect to the 

December 8, 2016 Order.”

The court in the January 6, 2017, order did not explicitly 

refer to Wallace’s January 21, 2014, amended counterclaim 

for modification, upon which Wallace sought judgment on the 

pleadings in his December 30, 2016, motion. We note in this 

regard that as discussed above, in the November 28 order, the 

court had stated that “pending applications for modifications 

[of the decree of dissolution] or motions to dismiss portions 

of such applications are stayed pending the appeal” of the 

September 30 contempt order.

On January 9, 2017, Wallace filed a notice of appeal in 

which he stated his intent to appeal the December 8, 2016, 

and January 6, 2017, orders. That appeal is docketed as case 

No. S-17-037.

We moved Wallace’s three appeals to our docket and consolidated them. To summarize, Wallace’s three appeals are: 

(1) case No. S-16-1086, in which he appeals the September 

30, 2016, order finding him in contempt for failing to pay 

childcare and property equalization payments required under 
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McCULLOUGH v. McCULLOUGH

Cite as 299 Neb. 719

the decree of dissolution, and the November 4 order overruling his motion for a new hearing or a reconsideration of 

the September 30 order; (2) case No. S-16-1187, in which 

he appeals the November 28 order finding, inter alia, that 

enforcement of the September 30 order was not stayed pending appeal, and the November 30 order setting a supersedeas 

bond of $45,000; and (3) case No. S-17-037, in which he 

appeals the December 8 order finding him in contempt for 

failing to pay child support required under the decree of dissolution, and the January 6, 2017, order overruling his motion to 

recuse and his motion to set aside or reconsider the December 

8, 2016, order.

ASSIGNMENTS OF ERROR

In case No. S-16-1086, Wallace claims that the district court 

abused its discretion when it found him in contempt for failing 

to pay childcare and property equalization payments required 

under the decree of dissolution. He argues that he could not be 

in contempt, because (1) his complaint for modification of the 

decree was still pending and (2) the judgment went dormant 

when Michelle failed to execute on it and the judgment had not 

been revived. He also claims that because he should not have 

been found to be in contempt, the court abused its discretion 

when it awarded attorney fees to Michelle.

In case No. S-16-1187, Wallace claims that the district 

court abused its discretion when it set a supersedeas bond of 

$45,000. He argues that under § 25-1916, the amount of the 

supersedeas bond is limited to 50 percent of his net worth, 

and he asserts his net worth to be less than $10,000. Michelle 

asserts in her reply that an order setting the amount of a supersedeas bond is not an appealable order.

In case No. S-17-037, Wallace claims that the district court 

abused its discretion when it (1) found him in contempt of the 

child support provisions of the decree of dissolution when his 

complaint for modification of child support was still pending, (2) overruled his motion for recusal, (3) overruled his 
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“motion for judgment” on his counterclaim for modification 

of the decree of dissolution, and (4) awarded attorney fees 

to Michelle.

STANDARDS OF REVIEW

[1] 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 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. State on behalf of Mariah B. & Renee B. v. 

Kyle B., 298 Neb. 759, 906 N.W.2d 17 (2018).

[2,3] A trial court’s decision awarding or denying attorney 

fees will be upheld on appeal absent an abuse of discretion. In re Estate of Forgey, 298 Neb. 865, 906 N.W.2d 618 

(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.

[4] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of 

law. Ginger Cove Common Area Co. v. Wiekhorst, 296 Neb. 

416, 893 N.W.2d 467 (2017).

[5] A motion requesting a judge to recuse himself or herself 

on the ground of bias or prejudice is addressed to the discretion of the judge, and an order overruling such a motion will 

be affirmed on appeal unless the record establishes bias or 

prejudice as a matter of law. Kalkowski v. Nebraska Nat. Trails 

Museum Found., 290 Neb. 798, 862 N.W.2d 294 (2015).

ANALYSIS

Relevant Nebraska Jurisprudence 

Regarding Contempt.

[6] We note first that in Smeal Fire Apparatus Co. v. 

Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010), disapproved 
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on other grounds, Hossaini v. Vaelizadeh, 283 Neb. 369, 808 

N.W.2d 867 (2012), we held that under Nebraska law, an order 

of contempt in a postjudgment proceeding to enforce a previous final judgment is properly classified as a final order. In the 

terms of Neb. Rev. Stat. § 25-1902 (Reissue 2016), a contempt 

order affects a substantial right and is made upon a summary 

application in an action after judgment. By the reasoning in 

Smeal Fire Apparatus Co. v. Kreikemeier, both the contempt 

order in case No. S-16-1086, which order relates to the property equalization and childcare expense portions of the decree 

of dissolution, and the contempt order in case No. S-17-037, 

which order relates to the child support portions of the decree 

of dissolution, are final, appealable orders.

[7-9] 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. Martin v. Martin, 294 Neb. 106, 881 N.W.2d 

174 (2016). A court’s continuing jurisdiction over a dissolution 

decree includes the power to provide equitable relief in a contempt proceeding. Id. Contempt proceedings may both compel 

obedience to orders and administer the remedies to which the 

court has found the parties to be entitled. Id. Where a situation 

exists that 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.

[10-12] Civil contempt requires willful disobedience as an 

essential element. State on behalf of Mariah B. & Renee B. v. 

Kyle B., 298 Neb. 759, 906 N.W.2d 17 (2018). “Willful” means 

the violation was committed intentionally, with knowledge that 

the act violated the court order. Id. If it is impossible to comply 

with the order of the court, the failure to comply is not willful. Id. Willfulness is a factual determination to be reviewed 

for clear error. Id. Outside of statutory procedures imposing a 

different standard or an evidentiary presumption, all elements 

of contempt must be proved by the complainant by clear and 

convincing evidence and without any presumptions. Id.
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McCULLOUGH v. McCULLOUGH

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Case No. S-16-1086: District Court Did Not Err 

When It Found Wallace to Be in Contempt of the 

Decree With Regard to Equalization Payments 

and Childcare Expenses or When It Awarded 

Attorney Fees to Michelle.

In case No. S-16-1086, Wallace claims that the district court 

abused its discretion when it found him in contempt for failing 

to pay childcare and property equalization payments required 

under the decree of dissolution and when it awarded attorney fees to Michelle. We find no merit to these assignments 

of error.

In case No. S-16-1086, Wallace contends that the district 

court could not have found him to be in willful contempt. We 

note first that Wallace does not dispute that he failed to make 

the payments required under the decree of dissolution entered 

in 2010. Instead, he basically argues that such failure cannot 

form the basis for a finding of willful contempt, because he 

had reason to think he was not required to make the payments. 

He first notes that the court had not yet ruled on his counterclaim for modification of the decree, and he argues that if the 

court were to rule in his favor and modify the decree, he might 

no longer owe the sums he has not paid. As an alternative argument, Wallace claims that Michelle let the money judgments 

from the decree of dissolution go dormant and that therefore, 

he was not obligated to pay the judgments. We find both arguments to be without merit.

Wallace claims first that he could not be found to be in 

willful contempt while his counterclaim for modification of 

the decree of dissolution was still pending. He argues that if 

his counterclaim were successful, he would no longer owe the 

amounts required under the decree of dissolution, and he reasons that he was not required to pay those amounts until the 

counterclaim was decided by the court. Wallace points to no 

authority to the effect that an application for modification of 

a decree of dissolution suspends the judgment and associated 

payments. To the contrary, we have ruled that under the proper 
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circumstances, modification of a decree of dissolution may 

be made retroactive and a credit or judgment may be given 

to compensate for overpayments made during the pendency 

of a modification action. See Johnson v. Johnson, 290 Neb. 

838, 862 N.W.2d 740 (2015). However, unless and until a 

modification order is made by the court, the decree of dissolution remains a valid judgment and payment obligations under 

the decree remain in force. We conclude that the pendency 

of Wallace’s counterclaim for modification did not prevent 

the district court from finding that Wallace was in willful 

contempt of the obligations imposed on him by the decree 

of dissolution.

Wallace alternatively claims that he could not be found to be 

in willful contempt with respect to the equalization payment, 

because Michelle failed to execute on the judgment within 5 

years as required by Neb. Rev. Stat. § 25-1515 (Reissue 2016), 

and that therefore, the judgment had gone dormant. Wallace 

recognizes that specific exceptions exist for alimony and child 

support, and therefore, he does not make this same argument 

in connection with his appeal in case No. S-17-037 discussed 

below. However, he argues that there is no exception from the 

operation of § 25-1515 for the property equalization payments 

that were ordered in the decree of dissolution.

The district court rejected Wallace’s assertion that Michelle 

failed to execute on the property equalization judgment, and 

the record supports that determination. The decree of dissolution was filed on March 22, 2010, and the record indicates 

that after entry of the decree, Michelle made attempts to collect sums due her under the decree. Such efforts included a 

contempt proceeding in 2011 and a motion Michelle filed in 

2012 which resulted in an order filed by the court on August 

15, 2012, which, inter alia, required proceeds from a sale of 

property to be applied to equalization payments. Michelle filed 

the present contempt proceeding on June 8, 2016, so there does 

not appear to have been a 5-year period in which Michelle 

failed to attempt to execute on the judgment. We therefore 
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conclude that the district court did not err when it rejected 

Wallace’s argument that he could not be found in willful contempt because Michelle purportedly allowed the judgment to 

go dormant.

[13] Finally, regarding the award of attorney fees in case 

No. S-16-1086, we note first that costs, including reasonable attorney fees, can be awarded in a contempt proceeding. 

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). Wallace 

does not assert that Michelle failed to prove her fees or that 

the amount was unreasonable. Instead, his sole argument is 

that attorney fees should not have been awarded, because he 

should not have been found to be in contempt of the decree of 

dissolution. Because we have concluded above that the court 

did not err when it found Wallace to be in contempt, we further conclude that the court did not abuse its discretion when it 

awarded attorney fees to Michelle.

Having rejected Wallace’s assignments of error in case No. 

S-16-1086, we affirm the September 30, 2016, order finding 

Wallace to be in contempt and awarding attorney fees. We 

also affirm the November 4 order overruling Wallace’s motion 

for reconsideration.

Case No. S-16-1187: Order Setting Amount of 

Supersedeas Bond Was Not Separately Appealable, 

and Issues Regarding Supersedeas Bond Are 

Moot Following Disposition of Appeal of 

Order Sought to Be Stayed.

In case No. S-16-1187, Wallace claims that the district 

court abused its discretion when it set a supersedeas bond of 

$45,000. He argues that under § 25-1916, the amount of the 

supersedeas bond is limited to 50 percent of his net worth, 

and he asserts his net worth to be less than $10,000. We 

determine that the order setting the amount of the supersedeas 

bond was not an appealable order in its own right and that, 
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although issues regarding the supersedeas bond might have 

been considered in connection with the appeal of the underlying contempt order in case No. S-16-1086, such issues are 

moot because of our resolution of that appeal.

[14] Before reaching the legal issues presented for review, 

it is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it. Ginger Cove Common 

Area Co. v. Wiekhorst, 296 Neb. 416, 893 N.W.2d 467 (2017). 

Michelle asserts that the court’s November 30, 2016, order 

setting the amount of the supersedeas bond is not an appealable order. Michelle relies on Green v. Morse, 57 Neb. 798, 78 

N.W. 395 (1899), in which this court held that an order fixing 

the amount of a supersedeas bond was not appealable, because 

it did not affect a substantial right. Michelle also cites Waite v. 

City of Omaha, 263 Neb. 589, 594-95, 641 N.W.2d 351, 355 

(2002), in which we said, “The effect of a supersedeas bond is 

to either maintain an order in force or prevent the execution of 

an order until a case is finally heard and determined, but not 

to make the underlying order, if otherwise nonfinal, into a final 

and appealable order.”

We read these cases, and others not recited here, as standing for the proposition that an order ruling on a request for a 

supersedeas bond is not in itself an appealable order and that 

a request for a supersedeas bond to stay execution of an otherwise nonfinal order does not convert that underlying order 

into an appealable order. However, the appellate courts in this 

state have considered issues regarding the setting of a supersedeas bond when the underlying order sought to be stayed 

by the bond was an appealable order. See, Buffalo County v. 

Kizzier, 250 Neb. 180, 548 N.W.2d 757 (1996); The Exchange 

Bank v. Mid-Nebraska Computer Services, Inc., 188 Neb. 

673, 199 N.W.2d 5 (1972). See, also, Edwards v. Edwards, 

16 Neb. App. 297, 744 N.W.2d 243 (2008); World Radio Lab. 

v. Coopers & Lybrand, 2 Neb. App. 747, 514 N.W.2d 351 

(1994) (determining that appellate court had jurisdiction to 

hear and determine appellee’s motion to increase supersedeas 
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bond). The procedure in those cases was not to file a separate appeal of the supersedeas bond order, as Wallace did in 

this case, but instead to raise the issue in the appeal from the 

underlying order. In some cases, this has been done by filing 

a motion asking the appellate court to change the amount set 

by the lower court. See Folgers Architects v. Kerns, 262 Neb. 

530, 633 N.W.2d 114 (2001) (stating that during pendency 

of appeal, both parties filed motions relating to supersedeas 

deposits made by appellant), and World Radio Lab. v. Coopers 

& Lybrand, supra (examining cases which discuss procedures 

available to test sufficiency of supersedeas bond and concluding that appellate court has jurisdiction to hear and determine 

appellee’s motion to increase supersedeas bond). In other 

cases, the supersedeas issue has been raised by assigning error 

to the lower court’s ruling on a request to set a supersedeas 

bond. See Buffalo County v. Kizzier, supra. See, also, Edwards 

v. Edwards, supra.

In the present case, Wallace did not use the procedures 

just described and instead chose to separately appeal the 

order setting the amount of the supersedeas bond. Because 

that order is not separately appealable, we conclude that the 

appeal in case No. S-16-1187 must be dismissed for lack 

of jurisdiction.

Our precedent indicates that Wallace could have raised 

issues regarding the supersedeas bond in case No. S-16-1086, 

the appeal of the order he sought to have stayed. However, 

Wallace did not file a motion in the supersedeas case, case No. 

S-16-1086, requesting a change in the amount of the supersedeas bond, and therefore, there was not a reason for this court 

to consider that issue in case No. S-16-1086 prior to considering the merits of that appeal. Furthermore, if we were to treat 

Wallace’s assignment of error in case No. S-16-1187 claiming 

the bond was excessive as though it had been an assignment of 

error in case No. S-16-1086, the issue is now moot because of 

our resolution of case No. S-16-1086 affirming the contempt 

order Wallace sought to stay.
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In this respect, we note Buffalo County v. Kizzier, supra, in 

which we considered an assignment of error regarding a district 

court’s refusal to set the amount of a supersedeas bond. The 

district court determined that the appellant’s request to set a 

supersedeas bond was untimely, because although it was filed 

within 30 days from the overruling of a motion for new trial, 

it was filed more than 30 days after the entry of the decree to 

which the motion for new trial was directed. We disagreed with 

the district court’s conclusion that the request was untimely, 

and we determined as a matter of law that when a timely 

motion for new trial is filed, the ruling on the motion for 

new trial becomes the final, appealable order, and that under 

§ 25-1916, a supersedeas bond must be filed within 30 days 

of the ruling on the motion for new trial rather than within 

30 days of the order to which the motion for new trial was 

directed. We concluded therefore that the district court erred in 

refusing to set the amount of a supersedeas bond for the appellant, but we noted that the error was “an error, however, which 

is moot at this point.” Buffalo County v. Kizzier, 250 Neb. 180, 

190, 548 N.W.2d 757, 764 (1996). See, also, Goeke v. National 

Farms, Inc., 245 Neb. 262, 512 N.W.2d 626 (1994) (stating 

that because we affirmed underlying order, we did not need to 

consider assignment of error regarding lower court’s refusal 

to set supersedeas bond); Anderson v. Anderson, 5 Neb. App. 

22, 554 N.W.2d 177 (1996) (with reversal of underlying order 

which modified decree of dissolution, supersedeas bond issue 

became moot).

In the present case, Wallace claims that the court abused 

its discretion when it set a supersedeas bond of $45,000. He 

argues that under § 25-1916, the amount of the supersedeas 

bond is limited to 50 percent of his net worth, and he asserts 

his net worth to be less than $10,000. Wallace is correct that as 

a matter of law, under § 25-1916, the supersedeas bond could 

not be set at an amount exceeding 50 percent of his net worth. 

However, it is apparent in this case that the district court did 

not err as a matter of law by misinterpreting § 25-1916, and 
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instead, the court rejected Wallace’s assertion that his net 

worth was less than $10,000 and made a finding of fact that 

his net worth was such that the bond of $45,000 did not exceed 

50 percent of his net worth. Unlike Buffalo County v. Kizzier,

supra, there is no question of law at issue here with regard to 

the setting of the supersedeas bond that we need to address. 

Instead, the issue raised by Wallace’s assignment of error 

is the court’s finding of fact regarding Wallace’s net worth. 

Because we have resolved the appeal the order sought to be 

stayed, the setting of the supersedeas bond is a moot issue at 

this point, and we need not review the district court’s finding 

of fact.

For completeness and to dispel potential confusion, we 

distinguish the supersedeas bond in this dissolution proceeding from supersedeas bonds in probate cases. As the Nebraska 

Court of Appeals stated in In re Estate of Sehi, 17 Neb. App. 

697, 772 N.W.2d 103 (2009), in an ordinary appeal from a 

judgment in a case originating in the district court, the appellant may choose whether to seek a supersedeas bond, but in 

appeals from probate cases, the law in some instances imposes 

a mandatory requirement of supersedeas. In this dissolution 

proceeding, however, Wallace had the option whether or not 

to seek a supersedeas bond, and therefore, the standards that 

govern the supersedeas bond in this case do not necessarily 

apply to the mandatory supersedeas bonds required under probate statutes.

For the reasons explained above, we dismiss the appeal in 

case No. S-16-1187 for lack of jurisdiction, and we need not 

consider issues regarding the setting of the supersedeas bond.

Case No. S-17-037: District Court Did Not Err 

When It Found Wallace to Be in Contempt of 

the Decree With Regard to Child Support, 

Nor Did It Err in Its Other Rulings.

In case No. S-17-037, Wallace claims that the district court 

abused its discretion when it (1) found him in contempt of the 
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child support provisions of the decree of dissolution when his 

complaint for modification of child support was still pending, (2) overruled his motion for recusal, (3) overruled his 

“motion for judgment” on his counterclaim for modification 

of the decree of dissolution, and (4) awarded attorney fees 

to Michelle. We conclude that these assignments of error are 

without merit.

Regarding the finding of contempt and the award of attorney fees, our analysis in this appeal is similar to that in case 

No. S-16-1086 above. We note that in case No. S-17-037, 

Wallace does not argue, as he did in case No. S-16-1086, that 

the child support judgment was dormant; as noted above, he 

recognizes that child support is an exception to the operation 

of § 25-1515. Wallace does, however, argue that he should 

not have been found in willful contempt of the child support 

provisions of the decree of dissolution, because his application for modification of child support was still pending. As we 

discussed above, the fact that an application for modification 

was pending did not excuse Wallace from making payments 

required under the decree of dissolution. The original provisions of the decree of dissolution remained a valid judgment 

unless and until the court modified those provisions. We therefore reject Wallace’s claim that the district court erred when it 

found him to be in contempt of the child support portions of 

the decree of dissolution.

Similar to his argument in case No. S-16-1086, Wallace’s 

sole argument with regard to the attorney fees awarded to 

Michelle in this appeal is that fees should not have been 

awarded, because he should not have been found to be in contempt. As we concluded in case No. S-16-1086, we conclude 

in this appeal that because the court did not err when it found 

Wallace in contempt of the child support provisions of the 

decree of dissolution, it also did not abuse its discretion when 

it awarded attorney fees to Michelle.

Regarding the motion for recusal, Wallace argues that the 

district court judge was biased against him. He asserts that 
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such bias was evident from the fact that the judge had signed 

the arrest warrant against Wallace for failure to make a purge 

payment, even though the judge had been informed that 

Wallace had attempted to make the payment, but the clerk 

of the court had returned Wallace’s check to him. Although 

we recognize these unfortunate set of facts, we nevertheless 

determine that the record in this case does not establish bias or 

prejudice as a matter of law. From our examination, the record 

is not entirely clear when the judge learned from the clerk that 

Wallace had attempted to make the purge payment; however, 

the record clearly indicates that the day after the arrest warrant was filed, the judge signed an order recalling the arrest 

warrant. The record indicates that the judge acted in a timely 

manner to correct any error in the issuing of the arrest warrant, and therefore, this incident does not show partiality or 

bias on the part of the judge. We reject Wallace’s claim that 

the court abused its discretion when it overruled the motion 

to recuse.

Finally, Wallace claims the district court erred when it overruled his “motion for judgment” on his counterclaim for modification of the decree of dissolution. Michelle contends that an 

order overruling a “motion for judgment” is not an appealable 

order. Whether or not such an order is appealable, we note that 

it does not appear that the district court ruled on Wallace’s 

“motion for judgment” on the modification. To the contrary, 

the court’s only references in the January 6, 2017, order to a 

“motion for judgment” were its statement that it was “without jurisdiction to hear [Wallace’s] Motion for Judgment on 

the Pleadings with respect to the September 30, 2016 Order” 

and that Wallace’s “Motion for Judgment on the Pleadings is 

denied with respect to the December 8, 2016 Order.” Further, 

we note that in an order filed on November 28, 2016, the court 

stated that because Wallace had appealed the contempt order 

filed on September 30, “pending applications for modifications 

[of the decree of dissolution] or motions to dismiss portions of 

such applications are stayed pending the appeal.” Therefore, it 
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appears that at the time it entered the January 6, 2017, order, 

the district court was of the understanding that the modification proceeding was stayed, and it therefore did not rule on 

Wallace’s “motion for judgment” with respect to the modification. Because the district court did not rule on the “motion 

for judgment” on the modification, we cannot review such a 

ruling even if such a motion were proper and such a ruling 

were appealable. Furthermore, to the extent Wallace’s “motion 

for judgment” related to the contempt proceedings, we have 

stated that rather than a civil action, a contempt proceeding 

is a “summary application after judgment.” Sickler v. Sickler, 

293 Neb. 521, 540, 878 N.W.2d 549, 564 (2016). Therefore, a 

“motion for judgment” is not a recognized filing in a contempt 

proceeding. We therefore reject Wallace’s assignment of error 

regarding his “motion for judgment.”

Having rejected Wallace’s assignments of error in case No. 

S-17-037, we affirm the December 8, 2016, and January 6, 

2017, orders.

CONCLUSION

In the contempt cases, cases Nos. S-16-1086 and S-17-037, 

we reject Wallace’s assignments of error and affirm the orders 

appealed. Because of our disposition in case No. S-16-1086 

of the order sought to be stayed by the supersedeas bond, 

issues raised by Wallace in case No. S-16-1187 regarding 

the setting of the amount of the supersedeas bond are now 

moot. In any event, in case No. S-16-1187, we conclude that 

the order setting the amount of a supersedeas bond was not 

separately appealable, and we dismiss the appeal for lack 

of jurisdiction.

Judgments in Nos. S-16-1086 and

 S-17-037 affirmed.

 Appeal in No. S-16-1187 dismissed.

Wright and Kelch, JJ., not participating.