Vyhlidal v. Vyhlidal , 311 Neb. 495 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/13/2022 01:06 AM CDT
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    VYHLIDAL v. VYHLIDAL
    Cite as 
    311 Neb. 495
    Eric J. Vyhlidal, appellant, v.
    Nessa A. Vyhlidal, appellee.
    ___ N.W.2d ___
    Filed April 28, 2022.    No. S-21-736.
    1. Divorce: Judgments: Appeal and Error. The meaning of a divorce
    decree presents a question of law, in connection with which an appellate
    court reaches a conclusion independent of the determination reached by
    the court below.
    2. 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 sanc-
    tion to be imposed are reviewed for abuse of discretion.
    3. Divorce: Property Settlement Agreements: Final Orders. A decree is
    a judgment, and once a decree for dissolution becomes final, its mean-
    ing, including a settlement agreement incorporated therein, is deter-
    mined as a matter of law from the four corners of the decree itself.
    4. Divorce: Property Settlement Agreements: Parent and Child:
    Judgments. A judgment including both a settlement agreement and a
    parenting plan is construed as an integrated judgment.
    5. Divorce: Judgments: Intent. The meaning of a decree must be deter-
    mined from all parts thereof, read in its entirety, and must be construed
    as a whole so as to give effect to every word and part, if possible, and
    bring all of its parts into harmony as far as this can be done by fair and
    reasonable interpretation.
    6. ____: ____: ____. Effect must be given to every part of a decree, includ-
    ing such effect and consequences that follow the necessary legal impli-
    cation of its terms, although not expressed.
    7. Child Custody. A determination of legal custody is a mandatory and
    indispensable part of a parenting plan pursuant to 
    Neb. Rev. Stat. § 43-2929
     (Reissue 2016).
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    VYHLIDAL v. VYHLIDAL
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    8. ____. Under the Parenting Act, joint legal custody involves mutual
    authority and responsibility of the parents while legal custody does not.
    9. Child Custody: Words and Phrases. The definitions in the Parenting
    Act of “legal custody” and “joint legal custody” are terms of art having
    clear and unambiguous meaning.
    10. ____: ____. In the absence of an explicit contrary definition in a parent-
    ing plan, the term “joint legal custody” must be construed according to
    its statutory definition in the Parenting Act.
    11. Child Custody. In a child custody case, the decision of where a child
    will reside is a fundamental decision affecting the child’s welfare.
    12. ____. In a child custody case, the decision of where a child will attend
    school is a fundamental decision.
    13. Courts. A maxim sanctioned by centuries of experience is that igno-
    rance of the law is no excuse.
    14. Courts: Presumptions. Everyone is presumed to know the law.
    15. Contempt: Words and Phrases. Willful disobedience is an essential
    element of contempt; “willful” means the violation was committed
    intentionally, with knowledge that the act violated the court order.
    16. Contempt: Proof: Presumptions. Outside of statutory procedures
    imposing a different standard or an evidentiary presumption, the com-
    plainant must prove all elements of contempt by clear and convinc-
    ing evidence.
    17. Courts: Appeal and Error. A district court by definition abuses its dis-
    cretion when it makes an error of law.
    18. Contempt. Civil contempt proceedings are instituted to preserve and
    enforce the rights of private parties to a suit when a party fails to com-
    ply with a court order made for the benefit of the opposing party.
    19. Contempt: Sentences. A civil sanction is coercive and remedial; the
    contemnors carry the keys of their jail cells in their own pockets,
    because the sentence is conditioned upon continued noncompliance and
    is subject to mitigation through compliance.
    20. Contempt: Costs: Attorney Fees. Costs, including reasonable attorney
    fees, can be awarded in a contempt proceeding when there has been a
    finding of contempt.
    Appeal from the District Court for Garfield County: Mark
    D. Kozisek, Judge. Reversed and remanded with directions.
    Loralea L. Frank and Nathan P. Husak, of Bruner, Frank,
    Schumacher & Husak, L.L.C., for appellant.
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    VYHLIDAL v. VYHLIDAL
    Cite as 
    311 Neb. 495
    Michele J. Romero and Vikki S. Stamm, of Stamm, Romero
    & Associates, P.C., L.L.O., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Cassel, J.
    I. INTRODUCTION
    An integrated marital dissolution decree, settlement agree-
    ment, and parenting plan granted joint legal and physical
    custody of a minor child to Eric J. Vyhlidal and Nessa A.
    Vyhlidal. Over Eric’s objection and without obtaining a modi-
    fication of the decree, Nessa moved the child to another school
    in a distant town. The district court declined Eric’s request for
    a contempt citation. On appeal, we reversed the denial and
    remanded the cause for an evidentiary hearing. 1
    After issuing the citation and holding an evidentiary hear-
    ing on remand, the court below found no violation or willful-
    ness. Eric again appeals. We conclude that the district court
    erred in its interpretation of the decree and its assessment of
    Nessa’s actions. We reverse the order and remand the cause
    with directions and for further proceedings consistent with
    this opinion.
    II. BACKGROUND
    Our background section consists of four parts. We begin by
    reciting pertinent conclusions from our first opinion. Second,
    we summarize the essential facts elicited at the evidentiary
    hearing. We then recall specific provisions of the integrated
    decree. Finally, we summarize the district court’s decision
    and reasoning.
    1. Prior Appeal
    In the parties’ prior appeal, we determined that the dis-
    trict court abused its discretion in denying Eric’s motion for
    1
    See Vyhlidal v. Vyhlidal, 
    309 Neb. 376
    , 
    960 N.W.2d 309
     (2021).
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    VYHLIDAL v. VYHLIDAL
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    311 Neb. 495
    an order to show cause. 2 After citing the definition in the
    Parenting Act 3 of “[j]oint legal custody,” 4 we stated:
    Here, the parenting plan, developed by the parties and
    approved by the court, clearly indicates that the parties
    were to share joint legal custody of the minor child, and
    neither party was granted exclusive final decision­making
    authority. As a result, it is undisputed that the parties
    share mutual authority for making fundamental decisions
    regarding the minor child’s welfare, including choices
    regarding education, such as where the minor child will
    attend school. 5
    We also noted that we had classified the decision of where a
    child will attend school as a fundamental decision. 6
    We concluded that the denial of Eric’s motion for an order
    to show cause was an abuse of discretion that unfairly deprived
    Eric of his rights as a joint legal custodian of the minor child.
    We stated: “Whether Nessa’s unilateral decision to change the
    child’s school is a willful violation of the decree . . . is a mat-
    ter to be considered at an evidentiary hearing where Eric can
    offer evidence to demonstrate both that a violation of the court
    order occurred and that the violation was willful.” 7 Thus, we
    reversed, and remanded for further proceedings.
    2. Evidentiary Hearing
    After spreading our mandate, the district court set the mat-
    ter for a hearing. It ordered Nessa to show cause why she
    should not be held in contempt of court for willful violation of
    the decree.
    2
    See 
    id.
    3
    
    Neb. Rev. Stat. §§ 43-2920
     to 43-2943 (Reissue 2016 & Cum. Supp.
    2020).
    4
    See § 43-2922(11).
    5
    Vyhlidal v. Vyhlidal, supra note 1, 309 Neb. at 382, 960 N.W.2d at 314.
    6
    See id.
    7
    Id. at 383, 960 N.W.2d at 314.
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    VYHLIDAL v. VYHLIDAL
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    311 Neb. 495
    After the hearing, the court characterized the facts as “simple
    and relatively undisputed.” In late June 2020, Nessa informed
    Eric that she intended to move the child’s residence and change
    the child’s school. Eric objected. Nessa proceeded with mov-
    ing and enrolling the child in a new school. She moved from
    Burwell, Nebraska, to Springfield, Nebraska, on August 8. She
    moved the child there on August 12. Two days later, she then
    enrolled the child in the Springfield school. Nessa admitted
    that she did so without Eric’s permission.
    The parties attended mediation. Nessa testified that she
    “submitted paperwork for Central Mediation” in June 2020.
    The parties’ mediation session occurred, using video conferenc-
    ing, on September 14. They failed to reach an agreement.
    At the hearing, Nessa argued that she complied with the par-
    enting plan. Her position rested on two facts: She notified Eric
    that she planned to change the child’s residence prior to doing
    so and attempted to reach an agreement through mediation.
    3. Integrated Decree, Settlement
    Agreement, and Parenting Plan
    A June 2018 decree dissolved the parties’ marriage. The
    decree awarded them “joint legal and physical custody” of
    their child, born in 2013. The decree further ordered the
    parties to abide by the terms of their mediated parenting
    plan that was attached to a marital settlement agreement. The
    marital settlement agreement stated that the parties agreed to
    “share legal and joint physical custody . . . as outlined in the
    Parenting Plan.”
    The settlement agreement contained an integration clause.
    Paragraph 12 stated, in pertinent part, that it “constitute[d] a
    complete agreement and any and all other agreements, whether
    written or oral, which precede the date as set forth below are
    hereinafter superseded and are null and void.”
    The parenting plan contained several provisions directly
    applicable to this appeal, which focuses on legal custody.
    Those provisions are as follows:
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    VYHLIDAL v. VYHLIDAL
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    B. CUSTODY/RESIDENCE: The parents agree to
    Joint Legal Custody (decision-making).
    ....
    K. DECISION MAKING: The parents will discuss
    matters concerning the child, such as health and medical,
    school related problems and decisions, and any behavioral
    or disciplinary issues that could impact both households.
    ....
    P. CHANGE OF CHILD’S RESIDENCE: Both par-
    ents shall provide notification to the other if s/he plans
    to change the residence of the child. Neither parent may
    move the child outside of the [S]tate of Nebraska without
    permission of the Court. If intending to move that parent
    must first:
    •  Make written application to the Court at least 45 days
    in advance, including the proposed changes to the parent-
    ing time schedule and costs of transportation[;]
    •  Give notice of the application and hearing to the other
    parent; and,
    •  Establish that the move is in the best interest of
    the child.
    ....
    R. REMEDIATION: The parents agree that should a
    future dispute arise concerning their child or this agree-
    ment which they are unable to resolve, they will first
    attempt to mediate a solution through mediation prior to
    filing legal action.
    S. ATTORNEY REVIEW: We both acknowledge that
    this parenting plan accurately reflects our agreements
    reached on May 16, 2018 and represent we each have had
    ample opportunity to discuss this parenting plan with our
    attorneys. Each parent certifies they understand the terms
    contained herein.
    In this appeal, the parties dispute the nature of their legal
    custody of their child—particularly, decisionmaking regarding
    the child’s school and residence. Physical custody, parenting
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    VYHLIDAL v. VYHLIDAL
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    311 Neb. 495
    time, and the change of a parent’s residence are largely irrele­
    vant here.
    But for the sake of completeness, we quote the parenting
    plan provisions directly bearing on physical custody, parent-
    ing time, and parent’s residence, as follows:
    B. CUSTODY/RESIDENCE: . . . .
    They also agree that Mom and Dad will have Joint
    Physical Custody.
    C. REGULAR TIME-SHARING:
    [The child] will be with Mom during the school year,
    except for one night each week from after school until
    8 p.m. Dad will give Mom 2 weeks’ notice of what night
    he will exercise that parenting time.
    The parents agree to alternate weekends, with Dad
    having [the child] two weekends in a row from Friday
    at 6 p.m. until Sunday at 6 p.m., then Mom having [the
    child] the third weekend. On the Sundays when Mom
    works at night, Dad will have [the child] until he drops
    him off for school on Monday morning. The parents shall
    follow a 2 weekend with dad/1 weekend with mom rota-
    tion. This weekend rotation shall resume the first Friday
    after school resumes with dad commencing the weekend
    rotation annually.
    The parents agree that they will work together to adjust
    [the child’s] schedule if their time with [the child] inter-
    feres with the work schedule.
    Neither parent may make plans for the child during the
    other parent’s parenting time without talking with that
    parent in advance and obtaining that parent’s consent.
    ....
    O. CHANGE OF PARENT’S RESIDENCE: In the
    event that one of the parents plan to change his/her
    residence, that parent shall notify the other parent of
    such change of residence. If one of the parents is living
    or moving to an undisclosed location because of safety
    concerns, the address or return address shall only include
    the county and state.
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    VYHLIDAL v. VYHLIDAL
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    311 Neb. 495
    4. District Court’s Decision and Rationale
    The district court entered an order finding that Nessa did
    not violate the parenting plan. It therefore vacated the order to
    show cause.
    The court’s rationale relied upon its interpretation of the
    decree, which focused on the parenting plan. The court rea-
    soned: “One must look to the Parenting Plan itself and not
    statutory definitions or labels . . . . For it is the violation of the
    Parenting Plan at issue, not the violation of a statute or legal
    definition found in a statute.”
    The district court further stated: “[T]he parties did not
    define ‘joint legal custody’ in the same manner as the Court.
    The parties chose the words, ‘Joint Legal Custody (decision-
    making)’. They then chose to describe ‘Decision Making’
    as parents discussing matters concerning [the child] such as
    school related decisions.”
    The parties’ description of “joint legal custody,” the court
    reasoned, required discussion between the parties and was
    silent on mutual authority and the parties’ responsibility for
    making mutual fundamental decisions regarding the child’s
    welfare. The court, essentially adopting Nessa’s argument,
    determined that Eric failed to establish Nessa violated the par-
    enting plan—reasoning that Nessa told Eric she was moving,
    that they discussed the move, and that they attempted to medi-
    ate a solution.
    The district court, for the sake of completeness, discussed
    the willful aspect of contempt. The court determined that the
    violation had to be committed with subjective knowledge and
    that Nessa did not willfully violate the parenting plan.
    Eric filed a timely appeal, which we moved to our docket. 8
    III. ASSIGNMENTS OF ERROR
    Eric assigns that the court abused its discretion by failing
    to hold Nessa in contempt for three reasons: (1) The court’s
    interpretation of the parenting plan was erroneous, (2) the
    8
    See 
    Neb. Rev. Stat. § 24-1106
    (3) (Cum. Supp. 2020).
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    court failed to find Nessa violated the parenting plan, and (3)
    the court abused its discretion by not finding Nessa’s violation
    was willful.
    IV. STANDARD OF REVIEW
    [1] The meaning of a divorce decree presents a question
    of law, in connection with which an appellate court reaches
    a conclusion independent of the determination reached by the
    court below. 9
    [2] In a civil contempt proceeding where a party seeks reme-
    dial 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. 10
    V. ANALYSIS
    Eric contends that the district court abused its discretion
    when it failed to hold Nessa in contempt for moving and
    enrolling the child into a new school despite his having joint
    legal custody and objecting to the change. We start by deter-
    mining what the decree required. Then, we apply that interpre-
    tation to the violations asserted by Eric in determining whether
    Nessa violated the decree and, if so, whether the violation
    was willful.
    1. Interpretation of Decree
    [3-6] Rules for interpreting a decree are well known.
    A decree is a judgment, and once a decree for dissolution
    becomes final, its meaning, including a settlement agreement
    incorporated therein, is determined as a matter of law from the
    9
    Johnson v. Johnson, 
    308 Neb. 623
    , 
    956 N.W.2d 261
     (2021).
    10
    Becher v. Becher, ante p. 1, 
    970 N.W.2d 472
     (2022).
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    four corners of the decree itself. 11 To the extent that we have
    not said so directly, we iterate that the same principle applies
    to a decree which includes both a settlement agreement and a
    parenting plan—it is construed as an integrated judgment. The
    meaning of a decree must be determined from all parts thereof,
    read in its entirety, and must be construed as a whole so as
    to give effect to every word and part, if possible, and bring
    all of its parts into harmony as far as this can be done by fair
    and reasonable interpretation. 12 Effect must be given to every
    part thereof, including such effect and consequences that fol-
    low the necessary legal implication of its terms, although not
    expressed. 13 Because the parties attached a parenting plan to
    their marital settlement agreement which the court incorporated
    into the decree, we consider the documents together in deter-
    mining the meaning of the decree.
    [7] The contents that must be included in a parenting plan
    are set forth in statute. 14 Pertinent to this appeal, a parenting
    plan shall include a determination regarding legal custody of
    the child. 15 In other words, a determination of legal custody
    is a mandatory and indispensable part of a parenting plan
    pur­suant to § 43-2929. 16 Legal custody focuses entirely on
    decision­making authority. 17
    The Parenting Act defines the terms “legal custody” and
    “joint legal custody,” and those terms have the same definitions
    for purposes of domestic relations actions. 18 “Legal custody
    11
    Johnson v. Johnson, supra note 9.
    12
    Id.
    13
    Bayne v. Bayne, 
    302 Neb. 858
    , 
    925 N.W.2d 687
     (2019).
    14
    See § 43-2929.
    15
    § 43-2929(1)(b)(i).
    16
    See id.
    17
    See State on behalf of Kaaden S. v. Jeffery T., 
    303 Neb. 933
    , 
    932 N.W.2d 692
     (2019).
    18
    See 
    Neb. Rev. Stat. §§ 42-347
     (Reissue 2016) and 43-2922.
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    means the authority and responsibility for making fundamen-
    tal decisions regarding the child’s welfare, including choices
    regarding education and health.” 19 On the other hand, “[j]oint
    legal custody means mutual authority and responsibility of
    the parents for making mutual fundamental decisions regard-
    ing the child’s welfare, including choices regarding education
    and health.” 20
    [8] The difference between the two concepts is obvious.
    Under the Parenting Act, joint legal custody involves “mutual
    authority and responsibility of the parents” 21 while legal cus-
    tody does not. 22
    [9,10] The definition of “joint legal custody” contained in
    the Parenting Act provides a baseline for what the term means
    within the context of child custody. In contract cases, we have
    said, “‘Trade terms, legal terms of art, numbers, common words
    of accepted usage and terms of a similar nature should be inter-
    preted in accord with their specialized or accepted usage unless
    such an interpretation would produce irrational results or the
    contract documents are internally inconsistent.’” 23 In probate
    matters, we have applied a similar rule: Generally, a term of
    art used in reference to a devise or other testamentary disposi-
    tion or provision has a technical but clear meaning. 24 We now
    hold that the definitions in the Parenting Act of “legal custody”
    and “joint legal custody” are terms of art having clear and
    unambiguous meaning. In the absence of an explicit contrary
    definition in a parenting plan, the term “joint legal custody”
    must be construed according to its statutory definition in the
    Parenting Act.
    19
    § 43-2922(13). See, also, § 42-347(6).
    20
    § 43-2922(11). See, also, § 42-347(4).
    21
    § 43-2922(11) (emphasis supplied).
    22
    § 43-2922(11) and (13).
    23
    Kalkowski v. Nebraska Nat. Trails Museum Found., 
    290 Neb. 798
    , 804-05,
    
    862 N.W.2d 294
    , 301 (2015).
    24
    In re Estate of Hannan, 
    246 Neb. 828
    , 
    523 N.W.2d 672
     (1994).
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    With that understanding, we turn to the integrated decree
    here. The decree awarded the parties “joint legal and physical
    custody” of their child. The marital settlement agreement stated
    that the parties agreed to “share legal and joint physical cus-
    tody . . . as outlined in the Parenting Plan.” The parenting plan
    stated that the parties agreed to “Joint Legal Custody (decision-
    making).” None of those documents specifically defined “joint
    legal custody.”
    Reading the document as a whole, mutuality runs through-
    out. Time-sharing provisions provide that “[t]he parents agree
    that they will work together to adjust [the child’s] schedule if
    their time with [the child] interferes with the work schedule”
    and that “[n]either parent may make plans for the child during
    the other parent’s parenting time without talking with that par-
    ent in advance and obtaining that parent’s consent.” The para-
    graph on summer break requires the parties to “work together
    to develop a schedule for the summer.” Temporary changes can
    be made to the plan “as long as they both agree to it”; perma-
    nent changes can be initiated “by mutual, written agreement of
    the parents.” Finally, the remediation provision states that if the
    parties are unable to resolve a dispute concerning the child or
    the parenting plan, “they will first attempt to mediate a solution
    through mediation prior to filing legal action.”
    Narrowing our focus to particular provisions of the par-
    enting plan, we start with the paragraph entitled “Decision
    Making.” That paragraph stated that the parties “will discuss
    matters concerning the child, such as health and medical,
    school related problems and decisions, and any behavioral or
    disciplinary issues that could impact both households.” But
    that paragraph does not remove the mutuality element and
    does not confer final decisionmaking authority on either party.
    In other words, there is nothing in that paragraph inconsistent
    with the statutory definition of “joint legal custody.” Reading
    the decree in that fashion effectively reads the words “joint
    legal custody” out of the parenting plan—a reading which
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    would violate the principle that effect should be given to all
    words and phrases in the judgment.
    [11,12] Under the decree at issue, changes in the child’s resi-
    dence or school enrollment are matters governed by the provi-
    sion for joint legal custody. In a child custody case, the decision
    of where a child will reside is a fundamental decision affecting
    the child’s welfare. If the decision could be made unilaterally,
    that would need to be clearly articulated in the plan. It was not.
    Likewise, the decision of where a child will attend school is a
    fundamental decision. 25 Nothing in the decree or incorporated
    plan provides that this decision can be made by one parent. As
    a fundamental decision and in accordance with the meaning of
    joint legal custody, it required mutual agreement.
    The district court erred in determining what the parenting
    plan required. The court’s reasoning that the parties need only
    discuss matters because the arrangement was “silent on mutual
    authority” is contrary to the meaning of “joint legal cus-
    tody.” And as we noted above, neither the parenting plan nor
    the decree conferred final decisionmaking authority on either
    party. We conclude the district court erred in interpreting the
    plan to require discussion only.
    [13,14] Nor are we persuaded that there is anything unfair
    or unreasonable in holding the parties to the terms of art they
    chose in their parenting plan. A maxim sanctioned by centu-
    ries of experience is that ignorance of the law is no excuse. 26
    Everyone is presumed to know the law. 27 Both maxims apply
    to Nessa, particularly in light of paragraph S of the parenting
    plan, where the parties “represent[ed]” they “each [had] had
    ample opportunity to discuss this parenting plan with [their]
    attorneys” and “certifie[d] they underst[ood] the terms con-
    tained” therein.
    25
    See Vyhlidal v. Vyhlidal, supra note 1.
    26
    See State ex rel. Nebraska State Bar Assn. v. Holscher, 
    193 Neb. 729
    , 
    230 N.W.2d 75
     (1975).
    27
    Haman v. Marsh, 
    237 Neb. 699
    , 
    467 N.W.2d 836
     (1991).
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    2. Contempt
    Having established the meaning of the decree as a matter
    of law, we move to the district court’s determinations pertain-
    ing to the contempt proceeding before it. Under our three-part
    standard of review, we review the district court’s resolution of
    issues of law de novo, its factual findings for clear error, and
    its determinations of whether a party is in contempt and of the
    sanction to be imposed for an abuse of discretion.
    (a) Violation of Parenting Plan
    Having settled that joint legal custody required mutual
    decisionmaking, whether Nessa violated the parenting plan is
    easily answered. Nessa complied in part by discussing with
    Eric her plan to move the child’s residence to a distant town
    and enroll him in a different school district and by attempt-
    ing to mediate a solution. But Nessa knew that Eric opposed
    those actions and that there was not mutual agreement, and
    she moved the child to the other town and enrolled him in the
    other school anyway. The “Remediation” provision of the plan
    hints at the next step when parties cannot agree: “filing legal
    action.” The district court’s erroneous interpretation of the
    parenting plan’s requirements led it to find that Eric failed to
    establish a violation of the parenting plan by Nessa. In doing
    so, the court abused its discretion.
    (b) Willfulness of Violation
    [15,16] To be in contempt, Nessa’s violation of the parent-
    ing plan had to be willful. Willful disobedience is an essential
    element of contempt; “willful” means the violation was com-
    mitted intentionally, with knowledge that the act violated the
    court order. 28 Outside of statutory procedures imposing a dif-
    ferent standard or an evidentiary presumption, the complainant
    must prove all elements of contempt by clear and convinc-
    ing evidence. 29
    28
    Becher v. Becher, supra note 10.
    29
    Id.
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    Eric proved willfulness by clear and convincing evidence.
    The evidence established that he informed Nessa of his objec-
    tion to moving the child’s residence and school. While Nessa
    claims that she believed the parenting plan required discussion
    only, our first opinion demonstrated that any such subjective
    belief was erroneous. While Nessa did not move the child until
    after the district court denied Eric’s motion for an order to
    show cause and motion for writ of assistance, she did not seek
    modification or other relief through the court.
    [17] We conclude the district court abused its discretion
    when it found that Nessa was not in contempt. A district court
    by definition abuses its discretion when it makes an error
    of law. 30
    (c) Remedial Relief and Coercive Sanctions
    [18-20] Because Nessa willfully violated the decree, ­coercive
    and remedial sanctions are appropriate. Civil contempt pro-
    ceedings are instituted to preserve and enforce the rights of pri-
    vate parties to a suit when a party fails to comply with a court
    order made for the benefit of the opposing party. 31 A civil sanc-
    tion is coercive and remedial; the contemnors carry the keys
    of their jail cells in their own pockets, because the sentence is
    conditioned upon continued noncompliance and is subject to
    mitigation through compliance. 32 Moreover, costs, including
    reasonable attorney fees, can be awarded in a ­contempt pro-
    ceeding when there has been a finding of contempt. 33
    Here, Eric is entitled to obtain Nessa’s compliance with the
    decree. This requires the immediate return of the child to
    Burwell and that school district. Eric is also entitled to his
    reasonable attorney fees. Nothing in this opinion should be
    30
    Stone Land & Livestock Co. v. HBE, 
    309 Neb. 970
    , 
    962 N.W.2d 903
    (2021).
    31
    Becher v. Becher, supra note 10.
    32
    Id.
    33
    Id.
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    construed to preclude the district court on remand from consid-
    ering modification of the decree, whether upon the complaint
    of either party 34 or as part of a contempt proceeding. 35
    VI. CONCLUSION
    We reverse the order of the district court, which declined to
    find that Nessa violated the decree or that she did so willfully.
    We remand the cause with directions to find Nessa in willful
    contempt, to order the child’s immediate return to Burwell resi-
    dency and school enrollment, to award Eric reasonable attorney
    fees, to craft such coercive sanctions as may be appropriate to
    achieve Nessa’s compliance with the decree, and for further
    proceedings in conformity with this opinion.
    Reversed and remanded with directions.
    34
    See 
    Neb. Rev. Stat. § 42-364
    (6) (Cum. Supp. 2020).
    35
    See 
    Neb. Rev. Stat. § 42-364.15
     (Reissue 2016).
    

Document Info

Docket Number: S-21-736

Citation Numbers: 311 Neb. 495

Filed Date: 4/28/2022

Precedential Status: Precedential

Modified Date: 5/13/2022