Graves v. Graves
Date Filed2023-12-19
DocketA-22-978
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
GRAVES V. GRAVES
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. Ā§ 2-102(E).
LORI S. GRAVES, NOW KNOWN AS LORI S. MURPHY, APPELLEE,
V.
MICHAEL W. GRAVES, APPELLANT, AND STATE OF NEBRASKA, APPELLEE.
Filed December 19, 2023. No. A-22-978.
Appeal from the District Court for Douglas County: DUANE C. DOUGHERTY, Judge.
Affirmed.
Andrea Finegan McChesney, of M | F Law Omaha, for appellant.
Christopher A. Vacanti and William L. Finocchiaro, of Vacanti Shattuck, for appellee Lori
S. Graves.
PIRTLE, Chief Judge, and MOORE and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Michael W. Graves appeals from an order of the district court for Douglas County which
found that Lori S. Graves, now known as Lori S. Murphy, was not in contempt of court for willfully
violating the tax exemption provision of the partiesā decree of dissolution of marriage. For the
reasons set forth below, we affirm.
BACKGROUND
Michael and Lori were married in 1993 and divorced in 2006. Two children were born to
their marriage, Miranda and Gavin. Michael and Lori shared joint legal custody of the children,
and Lori had physical custody subject to Michaelās right to parenting time. Both children were
legal adults by the time Michael filed the application and affidavit for contempt presently at issue.
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In the decree of dissolution of marriage, paragraph āU. Exemptions for Tax Purposes,ā
states:
Each party shall claim one child as a dependency exemption for federal and state income
tax purposes with [Lori] claiming Miranda and [Michael] claiming Gavin. [Michael] must
be current with his child support obligations on December 31st in order to make said claim.
Both parties shall execute any documents required by the IRS, including Form 8332, in
making said claim not later than January 15th.
The district court ordered the parties to abide by all the terms and conditions of the decree which
are enforceable by several means, including contempt proceedings. Some modifications were
made to the original decree, but the exemptions for tax purposes were unchanged.
On September 23, 2021, Michael filed an application and affidavit for an order for Lori to
show cause why she should not be held in contempt. Michael alleged that Lori had violated
paragraph U of the decree of dissolution by claiming Gavin as a dependent for the 2019 tax year.
On its own motion, the district court ordered the case be assigned and referred to the district court
referee to conduct a hearing and thereafter file a report containing findings and recommendations.
On March 24, 2022, a hearing was held before the district court referee. Michael testified
that, aside from one year when he was in arrears on his child support, he had claimed Gavin for
tax purposes every year. Michael also testified that he was current with his child support as of
December 31, 2018, and attempted to claim Gavin as a dependent in the 2019 tax year. However,
the IRS rejected his claim because Lori had already claimed Gavin.
On cross-examination, Michael admitted that after Gavin turned 19 on May 1, 2019,
Michael stopped providing any direct monetary support and paid none of Gavinās expenses.
Michael did continue to keep Gavin covered on his health care insurance plan. However, no
additional premium was incurred by keeping him on the plan. Michaelās coverage for Gavin was
secondary to the health insurance provided by Lori, as Lori was required by the dissolution decree
and modification orders to provide Gavin with health insurance.
Lori testified that she spent $15,181 in 2019 to support Gavin and pay for his expenses.
These expenses included insurance and medical bills, car maintenance, extracurricular activities,
clothing, direct deposits, college room and board, and dorm room supplies. She confirmed that
other than the 4 months of child support, Michael did not provide her with any assistance for
Gavinās expenses in 2019.
After meeting with a tax advisor and speaking with Gavin, Lori testified she felt
comfortable claiming Gavin as a dependent for the 2019 tax year. She also testified that she did
not have any intention of violating the dissolution decree and believed she was following the law
because Gavin had turned 19.
Rodney Anderson, a certified public accountant, reviewed Michaelās 2019 tax return and
confirmed he tried to claim Gavin as a dependent in 2019. Rodney did not assist Michael or Lori
with their 2019 taxes. However, he testified that if a child turned 19 on May 1, the test he would
use to determine if a parent was able to claim that child as a dependent would be as follows:
because [the child has] reached the age of majority, there is no custodial rights to either
parent . . . so, we would then look at the support test and if that [child] provided over half
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their own support, they would claim their own dependency. If one of the parents provided
over half the support, then they would be entitled to the dependency.
Rodney further testified that although divorce decrees may have a different effect, according to tax
law, this support test was the correct analysis to determine a childās dependency status.
Gavin testified he was living at Loriās house from the beginning of 2019 until he moved to
college. He stated that during that entire year, she provided him with all necessary financial
assistance. Gavin testified that he and Lori discussed his dependency status and that he was
agreeable with her claiming him in the 2019 tax year. At the conclusion of all the evidence, the
district court referee took the matter under advisement.
On April 19, 2022, the referee recommended that the court dismiss Michaelās contempt
action. In the refereeās report, the referee found that Loriās uncontested testimony was that she, on
the advice of her tax preparer and with Gavinās consent, claimed Gavin as a dependent. The referee
concluded that the evidence was not clear and convincing that Loriās actions were knowingly
committed with the willful intention of violating the court order.
On April 27, 2022, Michael filed an exception to the refereeās recommendations and
requested a hearing before the district court. Following hearing and its review of the record, the
court denied the exception, affirmed the refereeās report, and dismissed Michaelās application for
contempt. The court stated it had reviewed all the exhibits and the transcript of the hearing and
was in agreement with the refereeās findings and report. Michael subsequently filed a motion to
reconsider, which the district court also denied.
Michael appeals.
ASSIGNMENTS OF ERROR
Michael assigns, summarized and restated, that the district court erred in (1) considering
facts outside the four corners of the dissolution decree, and (2) failing to find that Lori willfully
violated the tax exemption provision contained in the decree of dissolution.
STANDARD OF REVIEW
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 the trial courtās
(1) resolution of issues of law are reviewed de novo, (2) factual findings are reviewed for clear
error, and (3) determinations of whether a party is in contempt and of the sanction imposed are
reviewed for an abuse of discretion. Hawks v. Hawks, 32 Neb. App. 70,993 N.W.2d 688
(2023).
ANALYSIS
Relevance of āFacts Outside the Four Corners of the Dissolution Decree.ā
Michael assigns first that the district court improperly considered facts outside of the four
corners of the decree of dissolution. In essence, Michael is alleging that any facts outside of the
four corners are irrelevant.
In support of his first assignment of error, Michael compares this case to Foster v. Foster,
266 Neb. 32,662 N.W.2d 191
(2003), where the Nebraska Supreme Court found that the district
court retained jurisdiction to enforce terms of the dissolution decree, which included awarding one
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of the parents a tax exemption. However, as noted by the referee, Foster was based on a motion to
compel the mother to complete IRS Form 8332. The case at bar is a contempt proceeding and,
therefore, the inquiry is whether Lori willfully disobeyed the decree.
To make such a determination, the district court reviews facts that speak to whether the
alleged violation was committed intentionally with knowledge that the act violated the court order.
See, Martin v. Martin, 294 Neb. 106,881 N.W.2d 174
(2016); State on behalf of Mariah B. & Renee B. v. Kyle B.,298 Neb. 759
,906 N.W.2d 17
(2018). The referee and district court recognized
this obligation and considered the testimony of Lori, Gavin, and Anderson as it related to Loriās
mindset when she determined that she was able to claim Gavin as a dependent. The facts
underlying her decision were not, as Michael argues, irrelevant or improperly considered.
Anderson explained that once a child reaches the age of majority, tax preparers use the support test
to determine who is entitled to claim the child as a dependent. As Lori was Gavinās primary
financial supporter in 2019, a tax preparer following the support test would recommend she claim
him as a dependent. Further, Gavin testified he and Lori discussed his dependency status, and he
consented to his mother claiming him in the 2019 tax year. Lori testified that after speaking to her
tax advisor and Gavin, she felt comfortable claiming Gavin as a dependent, believed she was
following the law, and had no intent to violate the dissolution decree. Thus, as these facts relate to
Loriās mindset and intentions when she claimed Gavin as a dependent, we find no error in the
district court considering them.
Willful Contempt.
Michael also argues that because Lori testified that her actions were willful and
knowledgeable, she should have been found in 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. Martin v. Martin, supra.Willful disobedience is an essential element of contempt.Id.
āWillfulā means the violation was committed intentionally, with knowledge that the act violated the court order.Id.
Willfulness is a factual determination to be reviewed for clear error. State on behalf of Mariah B. & Renee B. v. KyleB., supra.
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.
As stated above, determinations of whether a party is in contempt are reviewed for an abuse
of discretion. Hawks v. Hawks, 32 Neb. App. 70,993 N.W.2d 688
(2023). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Krejci v. Krejci,304 Neb. 302
,934 N.W.2d 179
(2019). When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. See e.g. Hernandez v. Dorantes,314 Neb. 905
,994 N.W.2d 46
(2023).
In support of his second assignment of error, Michael asserts that Lori would not have
sought out advice and permission from a tax preparer and Gavin if she thought she was able to
claim Gavin on her taxes without any concern. Lori counters that the evidence demonstrates that
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she did not intend to violate the dissolution decree and believed she was acting in compliance with
the law since she provided more than half of Gavinās support in 2019. Additionally, she points out
that there was no evidence or testimony showing whether Michael had asked Lori to complete
Form 8332 or whether Lori had contacted Michael regarding that form prior to January 15, 2020,
pursuant to the terms of the dissolution decree.
The question before the district court and this court is not whether Michael was entitled to
claim Gavin on his 2019 tax return pursuant to the decree. Lori, during the course of these
proceedings, appears to concede that point. The question is whether Michael proved by clear and
convincing evidence that at the time Lori elected to claim Gavin on her 2019 tax return, she did so
willfully and with the intent to violate the provisions of the dissolution decree. We can find no
abuse of discretion in the district courtās determination that Michael failed to meet his burden of
proof.
The evidence established that Lori relied on several factors in making her decision. Those
factors included the advice of her tax advisor, Gavin reaching the age of majority, her provision of
the vast majority of Gavinās support, and Gavinās consent to her claiming him as a dependent.
Based on all of these factors, Lori believed she could legally claim Gavin in the 2019 tax year. She
testified she did not intend to violate the dissolution decree by doing so. We give weight to the fact
that the district court referee and, by extension, the district court heard and observed the witnesses
and accepted Loriās testimony. We cannot say that the district court abused its discretion in finding
that Michael failed to prove Loriās willful disobedience by clear and convincing evidence.
CONCLUSION
For the foregoing reasons, we affirm the order of the district court.
AFFIRMED.
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