Bramble v. Bramble

303 Neb. 380

929 N.W.2d 484

James D. BRAMBLE, appellee,

v.Lori A. BRAMBLE, appellant.

No. S-18-682.

Supreme Court of Nebraska.

Filed June 21, 2019

C.G. (Dooley) Jolly and Travis M. Jacott, of Adams & Sullivan, P.C., L.L.O., Papillion, for appellant.

Elizabeth Stuht Borchers and Steven J. Riekes, of Marks, Clare & Richards, L.L.C., for appellee.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Stacy, J.

This appeal stems from civil contempt proceedings in a dissolution action. The primary question presented is whether a contemnor’s full compliance with a purge plan renders moot a subsequent appeal of the finding of contempt. We conclude it does, and we dismiss the appeal.

BACKGROUND

In January 2016, after a trial, the district court for Douglas County entered a decree dissolving the marriage of James D. Bramble and Lori A. Bramble. Both parties moved to alter or amend the decree, and the court thereafter entered an amended decree on February 22, 2016.

As relevant to the issues on appeal, the amended decree awarded the parties joint legal custody of their two minor children, and Lori was awarded primary physical custody. Regarding the marital home, the amended decree provided:

The real estate is awarded to [James] as is. The parties have stipulated that the value of the house is $ 169,000. There is $ 47,500 of marital equity. [James] shall refinance the house within 60 days of the entry of the Amended Decree to remove [Lori]’s name from the mortgage, and pay [Lori] her share of the equity of $ 23,750.00. [Lori] shall have until February 29, 2016, to vacate the residence. [Lori] shall leave the house in good condition, and not remove any fixtures or major appliances (except that [Lori] may remove either the clothes washer or the clothes dryer), on her departure. [James] has been paying the mortgage and all expenses since moving out of the marital home, and shall continue to do so until after he takes possession.

[Lori] shall execute a Quitclaim Deed to [James] releasing her interest in the marital residence, whether said interest is marital, legal, equitable, contractual or otherwise, to be held by her attorney, who shall release the deed to the title company or lending institution to be held in escrow pending the refinancing and payment of the marital equity.

CONTEMPT PROCEEDINGS

On March 14, 2016, James filed an application for an order to show cause. As relevant to this appeal, James alleged Lori improperly removed several fixtures and items of personal property from the residence. A show cause order was issued, and Lori entered a voluntary appearance.

After a continuance to permit mediation, the contempt application was taken up on October 24, 2016, with both parties represented by counsel. Evidence was adduced, and the matter was continued to January 10, 2017, so additional evidence could be offered. On January 13, the court entered an order finding that Lori had willfully violated the provisions of the amended decree in the following respects:

[U]pon her departure, [Lori] removed both the clothes washer and dryer, and replaced the dryer with another unit. Further [Lori] admits to removing the ceiling fans, the dishwasher, range, refrigerator and microwave upon her departure, a direct violation of the Amended Decree, and [Lori] is in [willful] contumacious contempt of this provision.

The January 13 order established a purge plan, but did not impose a sanction for the contempt. The pertinent portions of the order provided:

IT IS THEREFORE ORDERED that [Lori] is in [willful] contempt of court for violation [of] paragraph 9(f) of the Amended Decree, and shall appear in Douglas County District Court #504 ... on Monday, March 13, 2017, at 10:30 a.m. for sentencing.

IT IS FURTHER ORDERED that [Lori] may purge herself of contempt by paying the sum of $ 3,573.00 to [James] no later than March 10, 2017.

IT IS FURTHER ORDERED that [Lori] shall pay to the Clerk of the District Court of Douglas County, Nebraska, the sum of $ 1,500.00 as an ... attorney’s fee for [James'] attorney, no later than March 10, 2017.

IT IS FURTHER ORDERED that the parties shall inform the court by the close of business March 10, 2017, whether the sentencing hearing is necessary so that the Douglas County Sheriff’s Office can allocate their resources.

IT IS FURTHER ORDERED that any requested relief not specifically granted is denied.

Lori filed a timely motion to alter or amend, arguing the order was "not supported by the law or the evidence adduced at trial." She did not object to the procedure ordered by the court or the imposition of a purge plan without a sanction.

The court overruled the motion to alter or amend, and Lori timely appealed.

FIRST APPEAL

On appeal, Lori argued the district court erred by finding her in contempt, by imposing a purge plan, and by awarding attorney fees to James. James cross-appealed, assigning the district court erred in not letting him reopen the evidence in the dissolution trial.

In a memorandum opinion issued April 3, 2018,¹ the Nebraska Court of Appeals determined Lori had not appealed from a final order and it dismissed the appeal. The opinion noted that an order of contempt in a postjudgment proceeding to enforce a previous final judgment is a final order,² but that "the law in Nebraska has long been that the finding of contempt alone, without an order of sanction is not appealable."³ Because the district court’s January 13, 2017, order did not impose a sanction, the Court of Appeals concluded Lori had not appealed from a final, appealable order. The opinion also sympathized with Lori’s predicament:

In reaching this result, we are cognizant of the difficult position in which Lori is placed. When the district court chooses to in essence impose a purge plan without a sanction, [Lori’s] choice is to either (1) follow the directions of the court to avoid sentencing, even though she believes the district court erred in its finding of contempt; or (2) choose not to abide by the court’s directives and risk a heavier sanction once sentence is imposed. Once the sanction is imposed, she could then seek a stay of its imposition pending appeal. [Citation omitted.] While we cannot say it was error for the district court to give Lori an opportunity to comply with its order prior to imposing a sanction with a formalized purge plan, the court’s order does place Lori in a difficult situation. In any event, her efforts to appeal immediately are premature and we have no alternative other than to dismiss her appeal for lack of jurisdiction.⁴

Regarding James' cross-appeal, the Court of Appeals found the record on appeal was insufficient to support the assignment of error and affirmed the district court’s order. The Court of Appeals' mandate issued May 9, 2018.

PROCEEDINGS ON REMAND

On May 18, 2018, the district court ordered Lori to appear on June 11 "for sentencing on a previous finding of ... contempt." At the June 11 hearing, James' attorney asked the court to reopen the record for the purpose of including additional attorney fees as part of the purge plan.

In an order entered June 11, 2018, the district court reiterated its prior finding of contempt and sentenced Lori to 10 days in jail, ordering her to self-surrender no later than 8 a.m. on Friday, June 15. The order provided that Lori could purge herself of contempt by paying to the clerk of the Douglas County District Court the sum of $ 5,073 no later than close of business on June 14. The order further provided that if Lori failed to pay the purge amount and failed to self-surrender, a warrant would be issued for her arrest. Finally, the order overruled James' request to reopen the record to submit additional evidence of attorney fees.

Two days later, on June 13, 2018, Lori filed what she captioned as a "Notice of Compliance With Purge Order; and Application for Order." In this filing, Lori stated that at the time of her first appeal, she deposited a $ 5,000 supersedeas bond with the clerk of the district court and she represented that sum was still on deposit with the clerk. Lori also alleged that on June 12, she paid an additional $ 73 into the clerk of the district court. Lori asked that the funds deposited with the clerk, totaling $ 5,073, be used to purge her contempt.

The next day, on June 14, 2018, the district court entered a stipulated order for distribution directing the clerk of the district court to "release to [James] the sum of $ 5,073" and to "record this transaction in complete satisfaction" of the purge order.

SECOND APPEAL

On July 10, 2018, Lori filed a notice of appeal, purporting to appeal from the contempt orders of January 13, 2017, and June 11, 2018. After Lori filed her opening brief, James moved to summarily dismiss the appeal, arguing it was rendered moot when Lori satisfied the conditions of the contempt order and purged the finding of contempt. Lori opposed summary dismissal, arguing alternatively that (1) the appeal still presents legally cognizable interests or (2) the public interest exception to the mootness doctrine should apply.

The Court of Appeals overruled the motion for summary dismissal and directed the parties to address the mootness issue in the remaining briefing. After briefing was complete, we moved the case to our docket.⁵

ASSIGNMENTS OF ERROR

Lori assigns, slightly restated, that the district court erred in (1) finding her in contempt, (2) making insufficient factual findings to support a finding of willful contempt, (3) finding her in contempt of provisions in the amended decree that were vague, (4) awarding attorney fees to James, and (5) not awarding attorney fees to Lori.

STANDARD OF REVIEW

Justiciability issues that do not involve a factual dispute present a question of law.⁶

ANALYSIS

Before we address James' argument that this appeal of a civil contempt order is moot, we discuss the nature of civil contempt proceedings generally. We have explained that "[c]ivil contempt proceedings are ‘ "instituted...