Rodas v. Franco ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/10/2022 09:07 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
RODAS v. FRANCO
Cite as 30 Neb. App. 910Diana Rodriguez Rodas, now known as
Diana R. Doyle, appellant, v. Ismael
Ramirez Franco, appellee.
___ N.W.2d ___
Filed May 3, 2022. No. A-21-193.
1. Child Custody: Appeal and Error. Child custody determinations are
matters initially entrusted to the discretion of the trial court, and
although reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court bases its decision upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. ____: ____. 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. Child Custody: Appeal and Error. In child custody cases, where the
credible evidence is in conflict on a material issue of fact, the appellate
court considers, and may give weight to, the fact that the trial judge
heard and observed the witnesses and accepted one version of the facts
rather than another.
5. 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.
6. Child Custody. Ordinarily, custody of a minor child will not be modi-
fied unless there has been a material change in circumstances showing
that the custodial parent is unfit or that the best interests of the child
require such action.
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
RODAS v. FRANCO
Cite as 30 Neb. App. 9107. Modification of Decree: Words and Phrases. A material change in
circumstances means the occurrence of something which, had it been
known to the dissolution court at the time of the initial decree, would
have persuaded the court to decree differently.
8. Modification of Decree: Child Custody: Proof. Before custody may
be modified based upon a material change in circumstances, it must be
shown that the modification is in the best interests of the child.
9. Child Custody. In addition to the “best interests” factors listed in Neb.
Rev. Stat. § 43-2923 (Reissue 2016), a court making a child custody
determination may consider matters such as the moral fitness of the
child’s parents, including the parents’ sexual conduct; respective envi-
ronments offered by each parent; the emotional relationship between
child and parents; the age, sex, and health of the child and parents; the
effect on the child as the result of continuing or disrupting an existing
relationship; the attitude and stability of each parent’s character; and the
parental capacity to provide physical care and satisfy the educational
needs of the child.
10. ____. The fact that one parent might interfere with the other’s relation-
ship with the child is a factor that the trial court may consider in grant-
ing custody, but it is not a determinative factor.
11. Judges: Presumptions. A judge may rely on general knowledge that
any person must be presumed to have but cannot decide issues of fact
based on peculiar individual knowledge.
12. Child Custody. The moral fitness and conduct of the parties, along
with other matters, are of great significance in determining questions
of custody.
13. Contempt: Words and Phrases. Civil contempt requires willful disobe-
dience as an essential element. “Willful” means the violation was com-
mitted 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.
14. Words and Phrases: Appeal and Error. Willfulness is a factual deter-
mination to be reviewed for clear error.
15. Contempt: Proof: Evidence: Presumptions. Outside of statutory pro-
cedures 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.
16. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
RODAS v. FRANCO
Cite as 30 Neb. App. 910Appeal from the District Court for Sarpy County: Stefanie
A. Martinez, Judge. Affirmed in part, and in part reversed
and remanded with directions.
Renee L. Mathais, of Berry Law Firm, for appellant.
Alton E. Mitchell Attorney at Law, L.L.C., for appellee.
Pirtle, Chief Judge, and Riedmann and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
Diana Rodriguez Rodas, now known as Diana R. Doyle
(Doyle), appeals the order of the district court for Sarpy
County which modified custody of the child she shares with
Ismael Ramirez Franco and held her in contempt of court.
For the reasons set forth below, we affirm in part, and in part
reverse and remand with directions.
BACKGROUND
Doyle and Franco were married in 2007. Their minor child,
whose custody is at issue here, was born in 2010. A decree dis-
solving the parties’ marriage was entered in 2015, and therein,
the district court approved and incorporated the parties’ medi-
ated custody and parenting time agreement. The agreement
permitted Doyle to move back to California and awarded the
parties joint legal custody. Physical custody of the child was
to alternate every 2 years for as long as the parties live in two
states or upon further order of the court. Thus, the child was to
live in Omaha, Nebraska, with Franco from August 2015 until
August 2017, at which time, he would move to California to
live with Doyle for 2 years. The noncustodial parent was to
receive parenting time with the child for winter break, spring
break, and summer break. Either parent was permitted to sched-
ule additional visits or travel to the other parent’s home state to
visit with the child living there, at his or her expense.
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Nebraska Court of Appeals Advance Sheets
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RODAS v. FRANCO
Cite as 30 Neb. App. 910Doyle filed the operative complaint to modify custody in
September 2019, seeking sole legal and physical custody of the
child. In response, Franco filed an answer and counterclaim
also requesting modification of custody but asking the court to
award sole legal and physical custody to him. Trial was held
in July and August 2020. We will summarize some of the evi-
dence presented at trial here and provide additional details in
the analysis section below.
The child lived with Franco from 2015 until 2017. During
that time, he was in special education classes in school, had an
individualized education plan (IEP), and was in speech therapy
for stuttering. Although Doyle was living in California, she
maintained communication with the child’s teacher, donated
supplies to his classroom, and attended IEP meetings. She
would also travel to Nebraska prior to her visitation times in
order to volunteer in the child’s classroom.
Doyle began to have concerns about the child during her
spring 2016 visit because he looked very thin and unhealthy,
his speech was not improving, and he had anxiety. At the end
of her visitation, he cried, held on to her tightly, did not want
to return to Franco, and became anxious before she even drove
him to Franco’s house. Likewise, at the end of Doyle’s summer
visitation, the child did not want to return to be with Franco.
Doyle reassured him that he would have fun with Franco,
that she would call him and see him again, and that he would
be “okay.”
When custody switched and the child went to live with
Doyle in August 2017, she observed that he was very anxious
about being left alone and scared if she left his side, he was
wetting the bed, he was not socializing with children his age,
he was shutting down, and he wanted her to stay with him
for at least an hour at school until he felt comfortable and
safe. When asked what she meant by “shutting down,” Doyle
explained that if someone asked the child a question or he
became nervous, he would put his head down, not make eye
contact, and not engage in conversation. She had encouraged
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
RODAS v. FRANCO
Cite as 30 Neb. App. 910Franco to enroll the child in extracurricular activities while he
was in Nebraska, but Franco did not do so. So once the child
moved to California, Doyle enrolled him in martial arts to
help his self-esteem, encourage him to be more outgoing with
other children, and allow him to be around his peers outside
of school.
In September 2017, Doyle enrolled the child in therapy
with Alfredo Huerta, a family therapist, licensed clinical social
worker, credentialed school psychologist, and doctoral candi-
date in California. At that time, the child was having approxi-
mately 10 nightmares per week, so one of his therapy goals
was to eliminate the nightmares. The child was also hyper-
vigilant and afraid that Doyle would leave and that Franco
would return and take him. The child reported to Huerta that
he was “terrified” that he had to see Franco and was afraid
of him.
Toward the end of 2017, Huerta noticed that the child’s
nightmares had decreased or disappeared completely, which
was a significant improvement. Huerta testified that typically,
the child had a “dark cloud hanging over him represent[ing]”
Franco. The child repeatedly told Huerta that he did not want
to go with Franco or speak to him and that Franco was mean
and rude. Huerta continued to validate the child’s feelings
while also reminding him that he had to follow the rules, which
required him to have visits with Franco.
The child made other improvements during that time as
well. By November 2017, he no longer had an IEP, was moved
from special education classes into all mainstream classes, and
no longer needed speech therapy. Doyle observed that the child
was more outgoing, was willing and able to express his feel-
ings, and was less afraid to play outside and ride his bicycle.
Doyle further noted that the child had begun to participate in
class and that his nightmares and bed-wetting had improved
as well.
As Franco’s Christmas 2017 visitation approached, Doyle
noticed that the child’s nightmares and separation anxiety
returned, and he expressed to her that he was afraid Franco
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
RODAS v. FRANCO
Cite as 30 Neb. App. 910would pick him up and take him and that he would not see her
again. The exchange occurred outside Doyle’s house. When
Franco arrived, the child did not want Doyle to leave and held
onto her tightly. Doyle told him that he had to go with Franco,
but reassured him that he would have fun, that it would be
“okay,” and that he would be back soon. Franco testified at
trial that Doyle had requested the presence of law enforcement
officers at the exchange, and he claimed that they asked him
if he had threatened Doyle and that when he showed them his
cell phone to prove that he had not done so, he was allowed to
leave with the child.
Franco did not exercise his spring 2018 visitation. Doyle tes-
tified that she discussed the visit with Franco but that he would
not give her an explanation as to why he was not coming to
get the child. Franco, on the other hand, asserted that he called
Doyle regarding the visitation but that she never answered his
calls. Regardless, he did not travel to California to retrieve the
child in the spring of 2018.
The child did well during the 2017-18 school year, earn-
ing several awards in mainstream classes, including student
of the week, student of the month, “golden ribbon,” and a
mathematics achievement. As Franco’s summer 2018 visitation
approached, Doyle again began to see a change in the child
in that he started becoming anxious again and was not eating
much. She also received reports from his teachers expressing
concerns. The child was continuing to attend therapy with
Huerta, who noticed a pattern where the child’s symptoms
would improve and then, after his having contact with Franco,
would regress. Upon Huerta’s recommendation, Doyle took the
child to therapy more frequently as Franco’s summer visitation
approached.
In June 2018, Huerta and the child discussed the child’s not
wanting to go to Nebraska with Franco, and Huerta reminded
the child that he had to accept the court’s rules. Huerta’s
therapy notes from that timeframe reveal the child’s distress,
including anxiety, fears, and nightmares, over being required
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
RODAS v. FRANCO
Cite as 30 Neb. App. 910to go with Franco for the summer. The summer visitation
exchange occurred outside of Doyle’s house, and Franco testi-
fied that law enforcement officers were again present when he
arrived. Doyle stated that during the exchange, the child was
crying and did not want to go, and Franco likewise described
the child’s demeanor as “[e]motional.” According to Doyle,
Franco pulled the child away from her and physically had to
put him into his vehicle.
When the child returned to Doyle in August 2018, he was
happy to be back with her, but Doyle had him continue therapy
with Huerta because she noticed that he still displayed some
anxiety symptoms and was shutting down. When the child
returned to school, he remained in all mainstream classes with
no IEP or speech therapy. In his therapy sessions with Huerta
throughout the fall of 2018, the child reported that when he had
been with Franco over the summer, Franco was drinking and
driving while the child was in the vehicle and asked the child
to get him a beer; he also reported that Franco kept him in the
house all day, that they did not go anywhere for weeks, that he
got bullied by a neighbor, and that Franco would not protect
him. He further disclosed to Huerta that Franco slapped him,
hit him with a sandal, hit him in the face with a belt, and put
him in a dark basement. The child told Huerta that Franco yells
at him and that he did not want to go back to Nebraska.
As Franco’s Christmas 2018 visitation approached, the
child’s anxiety symptoms again began to increase. His night-
mares returned, and he repeatedly told Huerta that he did not
want to go with Franco, that he was nervous about going, that
Franco was “‘mean,’” and that he was afraid of Franco. Huerta
did some role playing with the child to help him learn to ­better
communicate his wishes to Franco, and the goal was that the
child’s symptoms would decrease as he developed a better rela-
tionship with Franco.
Franco testified that he asked Doyle if he could pick the
child up a few days early for his Christmas 2018 visitation
because he was going to plan a surprise birthday party for
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
RODAS v. FRANCO
Cite as 30 Neb. App. 910him and that Doyle agreed. According to Franco, when he
arrived, law enforcement officers were present and asked him
for documentation proving that he was permitted to take the
child, and because he did not have it with him, they would
not allow him to take the child. He was upset because he had
to cancel the birthday party he had planned for the child, for
which he had spent approximately $2,500. Franco claimed that
he made one attempt to retrieve the child for his Christmas
visitation.
Other evidence, however, establishes that the parties made
two attempts to facilitate the exchange in December 2018. The
record includes two reports from the Riverside County Sheriff’s
Department in California, showing that officials were present
for attempted exchanges on December 19 and December 21.
Doyle explained that she requested a “civil standby” to be pres-
ent at the exchange because of the verbal abuse and aggression
Franco had exhibited toward her, which had increased over the
past few years. In addition, after the child talked to Franco on
the phone about this visit, the child was nervous, angry, and
upset because he felt that Franco would not understand his
feelings. Doyle testified that she tried to alleviate the child’s
anxiety and concerns by telling him about the fun things he
could do with Franco and reassuring him that he would be back
in a couple of weeks.
According to Doyle, at the parties’ first attempted exchange
on December 19, 2018, law enforcement officers stayed for
approximately 30 minutes in an effort to convince the child
to go with Franco. Doyle’s current husband testified that he
arrived home during the attempted exchange on December 19
and observed the officers speak with the child alone. Doyle’s
husband is a police officer, with a different agency than the
officers present at the exchange, and he arrived home from
work wearing his uniform but testified that he did not know
the officers who were present and that he did not inter-
fere in the exchange other than to attempt to encourage the
child to go with Franco. He said that the child’s bags were
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
RODAS v. FRANCO
Cite as 30 Neb. App. 910packed and ready to go, but that the child was reluctant,
afraid, and very hesitant to go. The sheriff’s report substanti-
ates that officers were present at Doyle’s home on December
19 for ­approximately 30 minutes. By that point, according to
Doyle, Franco was upset, but the parties agreed to try again at
a later time.
Doyle asserted that Franco arranged the second exchange
attempt, which occurred 2 days later on December 21, 2018, at
the sheriff’s department, and that he was the one who requested
the presence of law enforcement officers. The sheriff’s report
corroborates that that attempt occurred at the sheriff’s depart-
ment on December 21. Doyle testified that the officers talked
to Franco, talked to her, and talked to the child, alone, but ulti-
mately brought the child back to her because he did not want
to go with Franco. At that point, according to Doyle, Franco
again became upset and left, and she did not hear from him
again regarding that attempted exchange. She claimed that dur-
ing the attempted exchange, Franco yelled at her and did so in
front of the child.
Franco did not try to exercise his spring 2019 visitation. He
testified that by that time, Doyle had commenced proceedings
to modify custody, so he had to hire an attorney and could not
afford to travel to California. He claimed that his decision not
to exercise that visitation was additionally informed by his
prior experiences with law enforcement presence at previous
exchanges. On cross-examination, Franco was asked to clarify
his testimony, and the following exchange occurred:
[Q.] And then, you did not attempt to exercise your
parenting [time] in spring of 2019?
[A.] I couldn’t do it. I already told you.
[Q.] Well, you didn’t try.
....
[Q.] . . . You didn’t try. Isn’t that correct?
[A.] I didn’t try. How about that? Okay? Happy?
According to Doyle, the child did “great” during the
spring semester of the 2018-19 school year, remaining in
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
RODAS v. FRANCO
Cite as 30 Neb. App. 910mainstream classes and continuing therapy. He also continued
doing martial arts and playing with cousins and neighbor-
hood friends.
Doyle understood that the child was to move back to
Nebraska with Franco in August 2019, and although she had
commenced litigation by that time and was seeking sole physi-
cal custody, she testified that she intended to return the child to
Franco. The child’s anxiety symptoms returned as the custody
exchange approached. For example, in July, the child reported
to Huerta that he had had one or two nightmares that week
because he was afraid that Franco was going to come in August
and take him to Nebraska for 2 years “against his will.” Later
that month, the child again reported having nightmares that
he would have to go with Franco and reported that he did not
want to play outside of his house for fear that Franco might
“‘kidnap’” him. In early August, the child told Huerta that he
was afraid that Franco would come to pick him up and said
that he could not sleep, felt nauseous, had pain in his stomach,
and was afraid to go live with Franco because Franco had done
“‘bad things.’”
The parties attempted to exchange the child multiple times
in August 2019. Doyle and her husband helped the child
pack his bags in preparation for the exchange, but accord-
ing to Doyle’s husband, the child’s demeanor about going
with Franco was “[c]omplete refusal.” Franco testified that he
observed the child’s bags packed and ready to go but claimed
that law enforcement officers were present at each attempted
exchange and that they would “interfere” and would not allow
him to take the child with him.
Although the record is a bit unclear, it appears that exchange
attempts were made at the sheriff’s department and at the
child’s school, and possibly outside of Doyle’s home. The
record includes a sheriff’s report for an attempt made on
August 15, 2019, at the sheriff’s department and a second
report from August 19 that details an attempted exchange
made at the child’s school. Franco testified to two previous
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
RODAS v. FRANCO
Cite as 30 Neb. App. 910attempts at Doyle’s house and testified that he arranged the
August 15 meeting at the sheriff’s department.
According to Doyle, on August 15, 2019, the child was very
upset, sad, and very much in denial. She tried to calm him
down and encourage him to go with Franco, but he refused. An
officer present at the time spoke to the child privately to try to
convince him to go. When the officer was done speaking with
the child, he brought him back to Doyle and then went to speak
with Franco. The officer then came back to talk to Doyle, and
Franco was upset and left.
Later that day, Doyle sent Franco a text message informing
him that she was able to convince the child to meet and speak
with him if she and the child’s friend could come along and
asked if Franco was willing to do so. The following morning,
Doyle sent Franco another message asking to meet with him
one-on-one to talk about the child. Franco acknowledged hav-
ing received both messages from Doyle and admitted that he
did not respond to either message.
On August 19, 2019, Franco went to the child’s school to
attempt to retrieve him and take him back to Nebraska. The
school notified Doyle, and she went to the school with the
child’s belongings. There was a law enforcement officer pres-
ent at the school, but Doyle had not requested his presence.
Prior to Doyle’s arrival, there was a discussion among the
child, the principal, the assistant principal, a therapist or coun-
selor, Franco, Franco’s mother, and the officer, all attempting
to convince the child to go with Franco. Doyle was not present
for the discussion and did nothing to prevent the child from
going with Franco. The attempt lasted almost 3 hours, but ulti-
mately, the child did not go with Franco.
Franco remained in California and attempted through mul-
tiple channels to retrieve the child. He testified that he spoke
to the “commander in chief” at the sheriff’s department and
spoke to “different branches of peace officers.” He hired
an attorney and eventually met with the district attorney’s
office, which identified a process it could undertake to gain
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
RODAS v. FRANCO
Cite as 30 Neb. App. 910possession of the child for Franco. The district attorney applied
for a protective custody warrant from the Riverside County
Superior Court of California, and the warrant was issued the
same day. Thereafter, the child was physically extracted from
school based upon the warrant, and he and Franco returned
to Nebraska. Franco’s phone records establish that he was in
California from August 14 through 29, 2019.
Based on the difficulty Franco had retrieving the child,
when he returned to Nebraska, he filed a motion with the dis-
trict court to suspend Doyle’s visitation. Within that motion,
he claimed that police officers removed the minor child from
Doyle’s home and placed him in Franco’s care. He sought sus-
pension of Doyle’s parenting time based on an allegation that
Doyle would attempt to remove the child back to California.
At the same time, Franco filed an application to hold Doyle in
contempt for failing to grant him his court-ordered parenting
time. In response, Doyle asked that the court deny the motion
to suspend her visitation or, in the alternative, allow her to
have supervised visitation. The court granted Doyle supervised
visitation in Nebraska for 3 hours on a weekday and 3 hours
on a weekend day. In order to facilitate her visitation, Doyle
rented a residence in Omaha.
When the child first returned to school in the fall of 2019,
he was very shy and timid, but he began to improve as time
passed. Franco acknowledged that the child’s grades were not
very good in the fall semester, but they, too, improved through-
out the school year. However, the child again had an IEP,
returned to speech therapy, and resumed wetting the bed.
At the time Franco testified at trial in August 2020, the
2020-21 school year had just begun and the child was doing
remote learning due to the COVID-19 pandemic. Franco
explained that he helps the child sign onto his virtual learn-
ing in the mornings and helps with his homework, but he
expected the child, at 9 years old, to be responsible for his own
schooling. Franco did not have the child enrolled in any extra­
curricular activities, even prior to the pandemic.
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Cite as 30 Neb. App. 910Franco did, however, begin taking the child to therapy in
September 2019 with Jennifer Sharp, a licensed independent
mental health practitioner. Sharp’s initial diagnostic impres-
sions of the child were persistent depressive disorder, general-
ized anxiety disorder, and post-traumatic stress disorder. Over
time, however, the depression subsided, the anxiety peaked to
where the child was having panic attacks, and the post-­traumatic
stress disorder remained but became milder. Regarding the
­anxiety diagnosis, Sharp testified that the child had a lot of
anxiety and worried about the custody situation in that he was
scared of the outcome, did not know what was happening, and
did not get to have a voice about where he wanted to be.
Sharp explained that the post-traumatic stress disorder was
triggered by the events the previous month surrounding the
custody exchange. She testified the child told her that the
police went to his school to retrieve him and put him in hand-
cuffs, that he did not know what was going on, and that he
thought he had done something wrong and the police were
going to shoot Franco. He was very scared, talked to Sharp
about that event often, and had nightmares and flashbacks of
that incident.
Sharp also testified that the child disclosed to her that Doyle
had slapped him in the face on some occasions and locked
him in a dark closet, which Sharp said was “very scary” and
“traumatizing” for a child. The child was also experiencing
nightmares and flashbacks of that event. The child told her that
he did not want to go near Doyle’s bedroom because he was
scared that she would put him in the closet again. Sharp fur-
ther explained that Doyle’s husband is a police officer and that
when the child sees him wearing his gun, the child gets scared
because he does not know what Doyle’s husband is going to do
with the gun.
Sharp provided both individual therapy to the child and
family therapy for the child and Franco, working with them
to improve their relationship. She said she also worked with
the child on improving his relationship with Doyle, although
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Cite as 30 Neb. App. 910Doyle has not participated in the child’s therapy with Sharp.
Sharp was aware that Franco locked the child in a basement
as a form of discipline, so part of her work in family therapy
included explaining to him that that was not appropriate. Sharp
was aware that the child had reported to Huerta that he was
afraid of Franco, but testified that the child told her he was not
afraid of Franco. Sharp confirmed, however, that there were a
significant percentage of sessions in which Franco was also in
the room with the child.
Sharp referred the child to a clinical psychologist, Dr. Joseph
Stankus, for psychological testing. Stankus spoke with Franco
in December 2019 and January 2020 and also interviewed the
child in January. Stankus acknowledged that he refused to talk
to Doyle because he did not “want to be embroiled in a custody
battle” and that he was afraid he would be pulled into this mat-
ter if he interviewed her.
Stankus diagnosed the child with adjustment disorder with
mixed anxiety and depressed mood, which occurs when some-
one is having trouble adjusting to his or her situation at the
time. Here, the child was struggling with the custody arrange-
ment and the ongoing conflict between Doyle and Franco.
Stankus also diagnosed the child with childhood-onset fluency
disorder, which essentially reflected his difficulty with stut-
tering. At the time of Stankus’ evaluation, the child was still
in speech therapy. Stankus explained that anxiety is a strong
trigger for stuttering; thus, he would “[a]bsolutely” expect that
a person would stutter more when under stress. Stankus further
diagnosed the child with “parent/child relational problem,”
which reflected the apparent conflict between the child and
Doyle. Stankus opined that this problem began when the child
was living in California with Doyle.
Finally, Stankus diagnosed suspected child neglect and sus-
pected childhood physical abuse. He testified that the child
reported to him that Doyle would leave him for hours at a
time and that in 2017, she slapped him in the face and left
a bruise. The child also told Stankus that Doyle had hit him
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RODAS v. FRANCO
Cite as 30 Neb. App. 910at a supervised visit in January 2020 and that she locked him
in a closet on two occasions.
Stankus explained that he completed an assessment compris-
ing information provided by Franco and by the child’s teacher.
With regard to the parent-rating scale, Franco did not see too
many problems, except for the child’s social relations that
seemed to be isolated at times. On the other hand, the infor-
mation provided by the child’s teacher led to findings that the
child seemed depressed, withdrawn, pessimistic, and sad.
The mental health therapist who supervised visits between
Doyle and the child testified that she began her supervising
duties in February 2020. She generally testified that the child
and Doyle appeared to have a close relationship, were engaged
with each other during visits, were playful and interactive, and
would give each other a hug and kiss at each visit. At one visit,
they watched a movie, and the child sat on Doyle’s lap of his
own volition and asked when he would see her again.
At a visit in June 2020, however, the child arrived very
upset, agitated, and aggressive, which was out of character
from his normal demeanor. Doyle attempted to comfort him,
but he was upset about the court proceedings. Doyle tried to
explain and alleviate his concerns, but the child stood up the
entire visit; was pacing, very fidgety, aggressive, and angered;
and would not allow Doyle to speak. In the visitation super­
visor’s opinion, Doyle acted appropriately as the child’s mother
by intervening and attempting to alleviate his concerns. The
visitation supervisor, however, ended up sending Franco a text
message that the child wanted to leave, although she did not
agree with ending the visit early, because Doyle was respond-
ing appropriately to the child’s concerns.
Franco called the visitation supervisor the following day
and threatened to cancel that day’s visit but decided to leave
the decision up to his attorney and the child. The visit occurred,
and the child’s behavior was completely different from the
previous day and more normal in the sense that he was play-
ful, was interactive, and stayed in close proximity to Doyle
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June 27 and 28, 2020, and Franco had confirmed them on
June 5. However, Franco canceled them the week they were
supposed to occur even though Doyle was already in town
from California.
In addition to the minor child at issue here, the parties have
an older son, Nathan Ramirez Rodriguez (Nathan), who was
21 years old at the time of trial. Nathan is Doyle’s biological
child, and Franco adopted him during the parties’ marriage.
After the parties divorced, Nathan moved back to California
with Doyle. Nathan was unaware that Franco was not his bio-
logical father until, at some point, he found a letter revealing
that he had been adopted. Nathan believed that this discovery
occurred sometime around the time Doyle and Franco got
divorced and that it happened before he and Doyle moved to
California. Franco claimed that Doyle intentionally left the let-
ter where Nathan would see it. Franco testified that he wanted
to tell Nathan the truth but that he and Doyle agreed not to
do so.
According to Franco, after Nathan learned he was adopted,
he was very upset with Franco. At trial, Nathan described
his relationship with Franco as “[n]onexistent,” and Franco
likewise said their relationship is “hardly nothing.” Nathan
has not had a visit with Franco since he and Doyle moved
to California after the divorce. Franco never sent Nathan any
birthday gifts or Christmas cards and did not attend his high
school graduation. Nathan said that Franco was never there and
that there was too much pain, physical and mental violence,
and aggression.
Nathan described a phone call in 2017 between Doyle and
Franco. He testified that he took the phone from Doyle because
Franco was harassing her, calling her names, insulting her,
diminishing her, and threatening her. According to Nathan,
Franco said to him, “‘I should have killed your mother and
left her dead, and I should have killed you too.’” Nathan testi-
fied that since that time, Franco had made similar comments
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it occurred most recently about a month before trial. At that
time, Nathan overheard Franco calling Doyle names, yelling,
and getting violent over the phone. Nathan admitted that he is
scared of Franco.
A recording of a June 2020 phone call between Doyle and
Franco was received into evidence. In it, Franco can be heard
using vulgar language and repeatedly calling Doyle names. In
addition, Franco repeatedly refused to allow Doyle to talk to
the child and threatened to block her from calling his phone,
and he ultimately did block her phone number. The child was
present during the call. Doyle testified that the language heard
on that call is common language that Franco uses with her.
At trial, Franco denied having anger issues or making vulgar
statements to Doyle in the recorded call, alleging that the last
time he made such comments to her was in 2015. He admit-
ted, in general, to calling Doyle vulgar names, and when asked
whether he thought it was appropriate to call the mother of
his child a vulgar name, he said that when he does so, he has
his reasons.
After the conclusion of trial, the district court entered a writ-
ten order. The court found that both parties had met the burden
of showing a material change in circumstances and that a mod-
ification of custody was in the best interests of the child. The
court awarded sole legal and physical custody to Franco. Doyle
received parenting time the third weekend of every month from
Friday evening until Sunday evening or Monday evening if
there is no school that day. She also received 2 weeks of unin-
terrupted parenting time in the summer.
The district court additionally determined that Franco met
his burden of proof as to his application for contempt and
ordered Doyle to serve 10 days in jail or purge herself of
the contempt order by paying Franco $6,000 by June 15,
2021. The court later clarified that the $6,000 was the total
of the $2,500 that Franco lost by canceling the birthday
party he had planned for the child in December 2018 and the
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August 2019. Doyle appeals.
ASSIGNMENTS OF ERROR
Doyle assigns, consolidated, restated, and renumbered, that
the district court erred in (1) finding the existence of a material
change in circumstances supporting a modification of custody,
(2) finding that it was in the child’s best interests to award his
custody to Franco instead of to her, (3) declining to make a less
significant change to the parenting plan, (4) finding that she
was in civil contempt, (5) ordering a purge plan with payment
amounts that were impossible for her to pay, and (6) imposing
incarceration as part of the civil contempt proceedings.
STANDARD OF REVIEW
[1] Child custody determinations are matters initially
entrusted to the discretion of the trial court, and although
reviewed de novo on the record, the trial court’s determination
will normally be affirmed absent an abuse of discretion. Schrag
v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
[2,3] An abuse of discretion occurs when a trial court bases
its decision upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason, and
evidence. Id. 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] In child custody cases, where the credible evidence is in
conflict on a material issue of fact, the appellate court consid-
ers, and may give weight to, the fact that the trial judge heard
and observed the witnesses and accepted one version of the
facts rather than another. Id.[5] 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,
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contempt and of the sanction to be imposed are reviewed for
abuse of discretion. McCullough v. McCullough, 299 Neb. 719,
910 N.W.2d 515 (2018).
ANALYSIS
Modification of Custody.
Doyle raises several issues related to the district court’s
decision to modify custody. She asserts that the court erred in
finding the existence of a material change in circumstances to
support modifying custody and in determining that awarding
custody to Franco, rather than to her, was in the best interests
of the child.
[6,7] Ordinarily, custody of a minor child will not be modi-
fied unless there has been a material change in circumstances
showing that the custodial parent is unfit or that the best inter-
ests of the child require such action. Schrag v. Spear, supra.
A material change in circumstances means the occurrence of
something which, had it been known to the dissolution court at
the time of the initial decree, would have persuaded the court
to decree differently. Id.
Doyle first claims that the court erred in finding the exis-
tence of a material change in circumstances. Although the
district court here did not specifically iterate the details of the
material change in circumstances it found to be present, we
understand from our de novo review of the evidence presented
at trial and the parties’ arguments that the material change
is the effect the 2-year rotating custody arrangement and the
conflict between Doyle and Franco have had on the child. It
is clear that the child was experiencing significant anxiety
related to the current custody arrangement, such that both par-
ties enrolled the child in counseling to help him address his
anxieties. Stankus diagnosed the child with adjustment disorder
with mixed anxiety and depressed mood, which he attributed
to the difficulty the child was having adjusting to the custody
arrangement and the conflict that existed between Doyle and
Franco. Similarly, one of Sharp’s diagnostic impressions of
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that the child has a lot of anxiety and worries about “the whole
custody issue,” that he was scared of the outcome, that he did
not know what was happening, and that he did not have a voice
about where he wanted to be.
Had the court at the time the decree was entered known
that this arrangement would have such a negative effect on the
child, it certainly would not have approved it. We therefore
conclude that the district court did not abuse its discretion in
determining that there was a material change in circumstances
affecting the best interests of the child.
Doyle next argues that the district court erred in finding that
the child’s best interests would be served by placing his cus-
tody with Franco rather than with her. We agree.
[8] Before custody may be modified based upon a material
change in circumstances, it must be shown that the modifica-
tion is in the best interests of the child. Schrag v. Spear, 290
Neb. 98, 858 N.W.2d 865 (2015). Neb. Rev. Stat. § 43-2923(6)
(Reissue 2016), requires a court, in determining custody and
parenting arrangements, to consider certain factors relevant to
the best interests of the minor child, including:
(a) The relationship of the minor child to each parent
prior to the commencement of the action or any subse-
quent hearing;
(b) The desires and wishes of the minor child, if of
an age of comprehension but regardless of chronological
age, when such desires and wishes are based on sound
reasoning;
(c) The general health, welfare, and social behavior of
the minor child;
(d) Credible evidence of abuse inflicted on any family
or household member. . . ; and
(e) Credible evidence of child abuse or neglect or
domestic intimate partner abuse.
[9] In addition to these statutory “best interests” factors,
a court making a child custody determination may consider
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ing the parents’ sexual conduct; respective environments
offered by each parent; the emotional relationship between
child and parents; the age, sex, and health of the child and
parents; the effect on the child as the result of continuing or
disrupting an existing relationship; the attitude and stability of
each parent’s character; and the parental capacity to provide
physical care and satisfy the educational needs of the child.
Schrag v. Spear, supra.
The district court’s order thoroughly summarized the evi-
dence presented at trial. After doing so, the court observed that
this case is complex and not easily decided. It found that both
parties were fit, love the child, and see to his needs, albeit in
different ways. The court observed that both parties engaged in
inappropriate discipline and discussed the case with the child,
which contributed to his emotional distress, but that each party
identified his needs and sought similar treatment for him. Thus,
the “main issue” for the court was how each party handled his
or her dislike for the other, and it found that Doyle handled her
dislike of Franco by involving law enforcement in the child
exchanges, which the court characterized as Doyle’s efforts to
“thwart” Franco’s parenting time and circumvent the court’s
orders. Therefore, the district court concluded that it was in the
child’s best interests to award sole legal and physical custody
to Franco.
[10] Although the fact that one parent might interfere with
the other’s relationship with the child is a factor the trial court
may consider in granting custody, it is not a determinative
factor. See Kamal v. Imroz, 277 Neb. 116, 759 N.W.2d 914(2009). Thus, to the extent the district court found that Doyle
attempted to interfere with Franco’s relationship with the child
and relied on that as the determinative factor in its decision to
award custody to Franco, this was an abuse of discretion.
That is not to say that Doyle’s actions were not to be con-
sidered when assessing the child’s best interests. The fact
that Doyle requested that the exchanges occur at the sheriff’s
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tions or an attempt to interfere with Franco’s parenting time. It
is not unheard of, especially in cases with high conflict between
the parents, for a trial court itself to order that exchanges of a
child occur at a police station or sheriff’s office. See, e.g.,
State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932
N.W.2d 692 (2019). And Doyle claimed that she requested law
enforcement presence at the exchanges because of the history
of verbal abuse and aggression Franco has exhibited toward her
and the fact that his hostility toward her has increased over the
past several years.
The recorded phone call from June 2020 demonstrates this
anger and aggression and the manner in which Franco is will-
ing to speak to Doyle, including doing so in front of the child.
Nathan likewise described a 2017 phone call where Franco
threatened both him and Doyle, and he admitted that he is
scared of Franco. Over the course of almost 2 years, the child
repeatedly told Huerta that he was afraid of Franco. The child’s
teacher became visibly emotional when recounting a time that
Franco came to the school and yelled at her and the school
secretary for allowing Doyle to volunteer in the classroom as
often as she was and her attempt to deescalate his anger. This
evidence suggests that if not the primary reason, at least an
additional reason, for involving law enforcement in the child
exchanges was Franco’s aggressive behavior.
The court described Doyle’s requests for civil standbys
as a “form of bullying,” stating that Doyle had requested
this on “multiple instances” “while her husband is also pres-
ent in uniform.” The evidence reveals, however, that Doyle’s
husband was present on only one occasion, during which he
attempted to facilitate, not hamper, the transition. Additionally,
Franco, himself, requested on occasion that the exchanges
occur at the sheriff’s department. Therefore, we do not view
Doyle’s requests as “passive-aggressive” as described by the
district court.
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did not want to go with Franco. As far back as Doyle’s spring
break with the child in 2016, the child cried, held on to her
tightly, did not want to return to Franco, and became anxious
before Doyle even arrived at Franco’s house. The child’s symp-
toms, in the form of things such as nightmares and anxiety,
increased any time a visit with Franco was approaching or
when he talked to Franco on the phone.
The child’s reaction to going on visits with Franco during
his 2 years with Doyle ranged from hesitation and reluctance
to fear to outright refusal. There were times neutral parties
were unable to convince the child to go with Franco, such as
Christmas break 2018, where officers talked to the child on
two separate occasions but were unable to persuade him to go
with Franco, and August 2019, where a subsequent attempt to
complete the custody exchange resulted in a meeting at the
school among the child, the principal, the assistant principal,
a therapist or counselor, Franco, Franco’s mother, and a police
officer, and the child still refused to go with Franco.
An April 2019 therapy note reports that Huerta asked the
child what he would say if he could talk to the judge deciding
this custody matter and that the child replied that “‘all [Franco]
is saying are lies.’” At that same time, when Huerta asked the
child to draw pictures, the child drew a picture of himself kill-
ing Franco with a knife, which Huerta explained indicated a
profound fear of and anger at Franco. The child then said that
he did not want to draw any more pictures about Franco or his
family because he gets nightmares.
We recognize Sharp’s testimony that the child told her that
he is not afraid of Franco. Yet, Huerta’s therapy notes from
September 2017 through August 2019 are replete with state-
ments from the child that he is afraid or “terrified” of Franco,
that the fear causes him to lose sleep and experience nausea
and stomach pain, that he did not want to go with Franco and
wanted to stay with Doyle, that he was upset and frustrated
that he had to go with Franco under the court’s orders, that
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husband unless the child went with Franco to Nebraska, that he
hates Franco, that he did not want to speak to Franco because
it gives him anxiety, that he had nightmares in August 2019
because he felt that Franco was going to come and take him to
Nebraska for 2 years “against his will,” that he was afraid to
play outside of Doyle’s house for fear that Franco might “‘kid-
nap’” him, and that he was afraid to live with Franco because
Franco has done “‘bad things.’”
The district court noted Huerta’s testimony that he did not
believe the child had been coached to make the comments that
he did because he believes that when children’s stories stay
the same, they have not been coached. The court found this
testimony “inconsistent with the indicators of coaching that are
regularly seen in custody cases.” It is unclear whether the court
concluded that Doyle had, in fact, coached the child to make
the claims that he did, but there is no evidence in the record to
support the court’s finding as to the indicators of coaching seen
in other cases.
[11] A judge may rely on general knowledge that any per-
son must be presumed to have but cannot decide issues of
fact based on peculiar individual knowledge. 89 C.J.S. Trial
§ 1186 (2012). See, also, In re Interest of G.R., 348 N.W.2d
627 (Iowa 1984); Lambert v. Cromer, No. 98,906, 2008 WL
2370076 (Kan. App. June 6, 2008) (unpublished opinion listed
in table of “Decisions Without Published Opinions” at 184 P.3d
993 (2008)). It is an abuse of discretion for the trial judge to
interject the judge’s personal “‘extra judicial familiarity’” with
facts in making findings. 89 C.J.S., supra, § 1186 at 616. Thus,
the court’s reliance here on its familiarity with the evidence
presented in other cases, when such evidence is not contained
in the record in this case, was an abuse of discretion.
The record contains considerable evidence of the child’s
feelings about going with Franco, and although there is also
evidence of difficulties in the child’s relationship with Doyle,
the evidence as to Doyle does not rise to the same level as
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that the child made similar allegations of abuse against both
parties, which is concerning. And Sharp testified that the
child had nightmares and fear related to the specific events of
Doyle’s locking him in a closet and his retrieval from school
by police in August 2019. Sharp further testified that the child
had a panic attack sometime in 2020 after a difficult phone
call with Doyle. Franco, likewise, testified that sometimes
the child becomes “emotionally affected” by phone calls with
Doyle and that the child’s demeanor when going on visits with
Doyle “fluctuates.”
Nevertheless, according to the record, the child did not dis-
play the same level of generalized fear of talking to or spend-
ing time with Doyle; nor did he repeatedly and consistently
throughout the 5 years between entry of the decree and the
modification trial refuse to go with her during her parenting
time. In fact, the child indicated to Huerta on more than one
occasion that he preferred to be with Doyle rather than return
to Nebraska with Franco.
The district court found that the child reported to Stankus that
the problems he was suffering began with Doyle in California.
The court further found that at the time of Stankus’ evaluation,
the child was suffering from anxiety about Doyle’s returning,
which caused him to have nightmares and to begin wetting the
bed. These findings are contrary to the evidence in the record.
Stankus opined not that the child’s generalized symptoms of
anxiety began when he was with Doyle, but that the apparent
conflict between the child and Doyle began when the child was
living with her in California. The record shows that the child’s
problems, including anxiety, nightmares, shutting down, stut-
tering, and bed-wetting, began during the initial 2-year period
he was living with Franco.
Further, Stankus did not testify that the child experienced
anxiety about Doyle’s returning. Rather, Stankus was ques-
tioned as to whether he found any evidence to support a diag-
nosis of separation anxiety between the child and Doyle or,
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Doyle’s not returning. After explaining that separation anxiety
occurs when a child experiences a lot of anxiety when the par-
ent is gone and experiences worry, uncertainty, and insecurity
about when the parent will return, plus possibly some night-
mares or panic attacks, Stankus testified that he did not have
any information that would support such a diagnosis for the
child relating to Doyle.
Overall, the evidence indicates that the child has a better
relationship with Doyle than he does with Franco. According
to the child’s teacher, Doyle and the child appeared close, and
the child became very excited when Doyle would come into
the classroom, ran across the classroom and gave her hugs, and
cried when she left. The visitation supervisor similarly testified
that Doyle and the child appeared to have a close relationship;
that they were very engaged, playful, and interactive; that the
child sat on Doyle’s lap of his own volition; and that they
hugged and kissed at each visit. When Sharp first spoke to the
child, he told her that he missed Doyle and worried about her
general welfare, although Sharp testified that the child was not
distressed about needing or wanting to return to California to
be with her.
At the time of trial, Sharp was actively working with the
child and Franco in family therapy to improve their relation-
ship, including explaining to Franco that locking the child in
the basement as a form of discipline is not appropriate. Huerta
also worked with the child on improving his relationship and
communication with Franco, doing role playing to help him
learn to speak with Franco about his wishes, and the goal
was that the child’s anxiety symptoms would decrease as he
developed a better relationship with Franco. Just prior to the
Christmas 2018 visit with Franco, the child was angry and
upset and expressed to Doyle that he was nervous and felt that
Franco would not understand his feelings. On the other hand,
Huerta praised Doyle’s ability to help the child self-soothe
and manage his stress in an effective, healthy way, and the
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Doyle did what she should have done as his mother, which was
attempt to alleviate his concerns.
Upon our de novo review of the record, we also observe that
the child’s struggles persisted during his initial time with Franco
from 2015 through 2017, improved quickly while with Doyle
beginning in August 2017, and regressed when he returned to
Franco in August 2019. The child had an IEP and was in spe-
cial education classes and speech therapy while he was with
Franco from 2015 until 2017. His main academic concerns at
that time were speech, including his becoming frustrated, stut-
tering, and then shutting down, and his motor skills such as
using scissors and pencils, buttoning his pants, and using a zip-
per. He was also experiencing anxiety, panic attacks, wetting
the bed, and having around 10 nightmares per week.
Once the child moved to California in August 2017, Doyle
enrolled him in therapy to help with his anxiety and in mar-
tial arts to help his self-esteem, encouraged him to be more
outgoing with other children, and allowed him to be around
his peers outside of school. He made significant progress in
school such that by November, he was in mainstream classes
with no IEP and was no longer in speech therapy. By that
time, Doyle also noticed that he was more outgoing and social,
that he was answering questions and participating in class,
and that his nightmares and bed-wetting had improved. The
child earned several awards in mainstream classes during the
2017-18 school year. He remained in mainstream classes for
the 2018-19 school year, continued doing therapy and martial
arts, and was engaging with other children.
The child returned to Franco in August 2019, and during
that school year, the child again had an IEP, returned to speech
therapy, and resumed wetting the bed. For the 2020 school
year, he was doing remote learning due to the pandemic, and
Franco helped the child sign onto his virtual learning in the
mornings and helped with homework. Contrary to the dis-
trict court’s finding that “both [Franco] and his grandmother
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his mother does not speak English, that he does not expect her
to help the child with remote learning, and that he expected the
child, at 9 years old, to be responsible for his own schooling.
Franco did not have the child enrolled in any extracurricular
activities, even prior to the pandemic.
Franco did, however, begin taking the child to therapy with
Sharp in September 2019 and felt that therapy had been bene­
ficial. The information Franco provided to Sharp and Stankus
upon which their assessments of the child were based, how-
ever, was not entirely accurate. Franco admitted that when
providing background information to Sharp at the outset of her
providing therapy to the child, he told her that Doyle “had a
baby that died inside of her and [that] she escaped from a men-
tal institution.” Likewise, Stankus found, in early 2020, based
on information provided by the child’s teacher, that the child
was depressed, withdrawn, pessimistic, and sad. But he testi-
fied that the information Franco provided to him did not reflect
the child’s anxiety and depressed mood and that Franco did not
see too many problems except for observing that the child’s
social relations seemed to be isolated at times.
When discussing the child’s stuttering, the district court
noted that Franco’s first language is Spanish and that Franco’s
mother, who lives in his home, speaks only Spanish; the court
therefore found that it is “unsurprising that a child of such a
young age would have difficulties with speech when dealing
with learning two languages.” There is no evidence in the
record to support this conclusion. To the contrary, Stankus
explained that stress and anxiety are triggers for stuttering and
that he would “[a]bsolutely” expect a person under stress to
stutter more.
The evidence presented at trial generally establishes that
Doyle historically participated to a greater degree in the
child’s education than did Franco. When asked at trial the
name of the school the child attended from 2015 until 2017
while living with him, Franco could not remember. Doyle
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California, she continued to volunteer in the child’s classroom,
have lunch with the students, and donate supplies to the school.
Although Franco complained to the school about the amount
of time that Doyle spent in the classroom, the child’s teacher
testified that Doyle arranged times with her to come into the
classroom when she would not disturb instruction time and
that other parents routinely volunteered in the classroom. She
explained that encouraging parent participation is part of the
philosophy of the kindergarten readiness program that the child
was a part of and that the program receives grant money from
the federal government based on parent volunteer time.
Doyle also maintained communication with the child’s
teacher and attended IEP meetings, whereas Franco generally
did not respond to communication from the school. When
asked why he did not respond to emails from the school,
Franco explained that he hardly ever responds to emails,
regardless of who sends them, but prefers to take action in
person. There was a time the school had an incorrect email
address for Franco, but in addition to email, the school also
attempted to communicate with him by phone calls, by letters
sent home, and through exchange of a notebook, but he rarely
responded via any of those methods.
The district court found it “disturbing” that Doyle and the
child’s teacher arranged for Doyle to be able to speak on
the phone with the child during the schoolday. The teacher
explained that Doyle contacted her at the beginning of the
2015-16 school year and was upset that she had not been able
to speak to the child on the phone in the evenings. Therefore,
they arranged for Doyle to call the school at the same time
every day, which was during snack time at the end of the day,
to be able to speak to the child. The child was very excited
when he was able to talk to Doyle on the phone. The district
court found it “disturbing” that the teacher never contacted
Franco to verify whether he was, in fact, preventing Doyle
from speaking to the child or to seek his approval before
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weight” to the teacher’s testimony. However, the dissolution
decree provides that each parent will be able to make phone
calls to, or have electronic contact with, the child each day
while he is with the other parent, at reasonable times of the day
and evening. To the extent Franco was not allowing Doyle to
speak to the child on the phone when she would call, he was
interfering with her relationship with the child and violating
the provisions of the decree.
As noted above, in addition to the statutory “best interests”
factors, a court making a child custody determination may
consider matters such as the respective environments offered
by each parent. See Schrag v. Spear, 290 Neb. 98, 858 N.W.2d
865 (2015). Consideration of this factor weighs in favor of
Doyle. She lives in a four-bedroom home with her current
husband; her older son, Nathan; and Nathan’s girlfriend. Doyle
does not work and, thus, is able to volunteer at the child’s
school, help him with his school work, and take him to therapy
appointments and extracurricular activities. The child has his
own bedroom at her home, there are neighbor children he has
befriended, and Doyle’s extended family lives nearby. The
school system the child attends in California offers before- and
after-school programs and bilingual classes. Doyle’s husband
testified that he and the child are “buds” and do everything
together, including teaching the child to ride a bicycle; playing
video games; drawing and coloring; and going to museums,
fishing, and camping.
On the other hand, Franco lives in a two-bedroom home
with his mother and the child. Franco’s mother and the child
share a bedroom. Franco owns a plastering company and does
exterior plastering work. His work hours vary based on the
weather, but in general, he works from 7 a.m. until 5 p.m. In
the winter, however, he may work from 9 a.m. until 4 or 5
p.m., and in warmer weather, he will work as late as 9 p.m. if
he can. He described the child as “an outdoor kid” who enjoys
riding his bicycle and running around with their dogs, and
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does not contain evidence regarding any friends or extended
family the child has in Nebraska or details about the school
he attends.
[12] In assessing the best interests of the child, we also con-
sider the moral fitness and conduct of the parties. Of necessity,
the moral fitness and conduct of the parties, along with other
matters, are of great significance in determining questions
of custody. Hicks v. Hicks, 214 Neb. 588, 334 N.W.2d 807(1983). Here, Franco admitted that he has not filed tax returns
for approximately 7 years, claiming that he cannot afford to
pay his taxes. He also acknowledged that he claimed a depend­
ent on his tax returns for “some time” even though she is not
his daughter. At trial, Franco denied having anger issues or
making many of the vulgar comments that are exhibited in
the June 2020 recorded phone call, alleging that the last time
he made such comments to Doyle was in 2015. When asked
whether he thought it was appropriate to call the mother of
his child a vulgar name, he said that when he does so, he has
his reasons.
The district court placed great weight on Doyle’s conduct,
interpreting it as her repeatedly denying Franco his parenting
time. There was no direct evidence that Doyle intentionally
denied Franco parenting time. Rather, Doyle testified that when
the child expressed hesitation, reluctance, or fear at going with
Franco, she would try to calm him down, encourage him to
go, and reassure him that he would have fun, that he would
be “okay,” and that she would call him while he was gone.
She also testified that she made efforts to get the child to call
Franco and that she felt that was important “[b]ecause it is
his father.”
Doyle’s husband testified that he never observed Doyle
encourage the child not to go with Franco and never observed
her speak poorly of Franco. At times when the child com-
plained to Huerta that Franco was “‘mean’” and “‘rude’” to
him, both Huerta and Doyle would encourage him not to be
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Cite as 30 Neb. App. 910disrespectful back and, according to Huerta, Doyle “would
always remind him, in [Huerta’s] presence, that even if some-
body’s rude to you, you don’t have to be rude back.” Franco,
likewise, did not claim that Doyle discouraged the child from
going with him during his visits. And according to Franco,
when he asked to pick the child up early for his Christmas
2018 visitation, Doyle said, “[O]f course.”
Furthermore, Franco’s description of some of the custody
exchanges is contradicted by other evidence. For example,
he testified that in December 2018, he attempted one time to
retrieve the child for his visitation but the law enforcement
officers who were present at the exchange asked him for docu-
mentation proving that he was permitted to take the child. And
when he had no such proof, the officers prevented him from
taking the child.
To the contrary, the record includes two reports from the
sheriff’s department, establishing that law enforcement officers
were present for attempted exchanges on December 19 and
December 21, 2018. Doyle’s husband testified that he arrived
home during the attempted exchange on December 19 and
observed the officers speak with the child but that the child was
afraid and very hesitant to go. Doyle also testified that the offi-
cers spent about 30 minutes attempting to convince the child to
go with Franco, but that after that time, the parties agreed to
take a break and try again. The report from the sheriff’s depart-
ment shows that officers were present for approximately 30
minutes during the attempted custody exchange.
Doyle asserted that Franco, himself, arranged the second
attempt, which occurred on December 21, 2018, at the sher-
iff’s department, and that he was the one who requested
the presence of law enforcement. The sheriff’s report cor-
roborates that the attempt occurred at the sheriff’s department
on December 21. Doyle testified that the officers talked to
Franco, talked to her, and talked to the child, alone, but ulti-
mately brought the child back to her because he did not want
to go with Franco. At that point, according to Doyle, Franco
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related to that exchange.
Additionally, as discussed above, the evidence clearly proves
that exchanges of the child were difficult, at best, and that the
child often refused to go with Franco. There were occasions
where Doyle was not even present at an attempted exchange
and Franco, law enforcement officers, and others still were
unable to convince the child to go with Franco. Huerta advised
Doyle against physically forcing the child to go with Franco
because doing so could be emotionally detrimental for him.
Doyle and her husband testified that they helped the child
pack his bags for each visit with Franco and encouraged the
child to go and spend time with him. Franco acknowledged
that when he first attempted to pick the child up from Doyle
in August 2019, he saw the child’s bag packed and ready to
go. And after the first exchange attempt in August, Doyle
sent a text message to Franco telling him that she was able to
convince the child to meet and speak with him if she and the
child’s friend could also attend, which supports her testimony
that she tried to convince the child to go on visits with Franco.
She also sent Franco a text message the following day asking
if he would be willing to meet with her to talk about the child.
Franco did not respond to either message. Although the dis-
trict court found it “highly improbable” that Doyle requested
to meet alone with Franco, a copy of the text message was
received into evidence at trial, and Franco admitted that he had
received the messages but had not responded because he was
not willing to meet with Doyle.
Moreover, contrary to the district court’s finding that Franco
never prevented Doyle from exercising her parenting time
with the child, Doyle was scheduled to have visits with the
child on June 27 and 28, 2020, but Franco canceled them,
after having previously confirmed them with the visitation
supervisor and despite the fact that Doyle had already trav-
eled to Nebraska for the visits. In addition, Franco prevented
Doyle from talking to the child on the phone during calls the
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Cite as 30 Neb. App. 910dissolution decree permitted her to make, and he threatened to
block her from calling him and did block her phone number
after the recorded call.
In a review de novo on the record, an appellate court reap-
praises the evidence as presented by the record and reaches
its own independent conclusions with respect to the matters
at issue. Weaver v. Weaver, 308 Neb. 373, 954 N.W.2d 619(2021). When evidence is in conflict, the appellate court con-
siders and may give weight to the fact that the trial judge heard
and observed the witnesses and accepted one version of the
facts rather than another. Id.We have conducted a thorough de novo review on the
record, reached our own independent conclusions, and given
weight to the trial court’s factual findings when appropriately
supported by the evidence presented at trial. When considering
the statutorily required best interests factors and the additional
permissible matters, we conclude that the district court abused
its discretion in finding that awarding custody to Franco was in
the best interests of the child. We therefore reverse the district
court’s order and remand the cause with directions to award
sole legal and physical custody to Doyle subject to Franco’s
parenting time as set forth in the parenting plan attached to the
district court’s order. Based on this finding, we do not address
Doyle’s argument that the court erred in declining to make a
less significant change to the parenting plan.
Contempt.
Doyle also challenges the district court’s decision to hold
her in contempt of court. She argues that the court erred in
finding her in contempt, in ordering a purge plan with payment
amounts that were impossible for her to pay, and in imposing
incarceration as part of the contempt proceedings.
[13-15] Civil contempt requires willful disobedience as
an essential element. McCullough v. McCullough, 299 Neb.
719, 910 N.W.2d 515 (2018). “Willful” means the viola-
tion was committed intentionally, with knowledge that the
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Cite as 30 Neb. App. 910act violated the court order. Id. If it is impossible to comply
with the order of the court, the failure to comply is not will-
ful. 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.With respect to contempt proceedings related to interference
with parental visitation, the Nebraska Supreme Court has relied
on the custodial parent’s conduct and whether the visitation
actually occurred. In Krejci v. Krejci, 304 Neb. 302, 308-09,
934 N.W.2d 179, 184 (2019), the court upheld the trial court’s
decision not to hold a parent in contempt for her children’s
refusal to attend grandparent visitation, stating:
While we do not endorse the proposition that the
responsibility for adhering to a visitation plan devolves to
the children, a logical conclusion which results from the
district court’s findings in this contempt case is that [the
mother] did not encourage or instruct the minor children
to refuse to participate in the grandparent visitation.
In Martin v. Martin, 294 Neb. 106, 881 N.W.2d 174 (2016),
the Supreme Court upheld the trial court’s determination that
a mother was in willful contempt of court because the mother
had a consistent pattern of transferring her responsibility to
her children and the father was not able to exercise his court-
ordered parenting time. In other words, the Supreme Court has
affirmed not holding a parent in contempt when that parent
did not encourage or instruct the children to refuse the visit,
and it has upheld the decision to hold a parent in contempt
where that parent consistently transferred the responsibility
of deciding whether to attend visitation to the children and
the noncustodial parent repeatedly was unable to exercise his
court-ordered visitation.
We find the facts of the present case more comparable
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whether the visitation actually occurred, we conclude that the
district court erred in holding Doyle in contempt.
Here, Doyle actively encouraged and tried to convince the
child to attend the court-ordered parenting time with Franco;
there was no evidence that Doyle ever told the child that he
was free to refuse to go with Franco or discouraged him from
attending visitation. To the contrary, Doyle testified that when
the child expressed to her that he did not want to go with
Franco, she would try to calm him down, encourage him to
spend time with Franco, remind him of the fun things they
would do together, and assure him that she would call him
while he was gone. Doyle spoke to Huerta about how to make
the exchanges go more smoothly and attempted to utilize the
advice he gave her. Doyle and the child were present for each
exchange, and Doyle had the child’s bag packed and ready for
him to go with Franco. Even during the exchange Franco uni-
laterally arranged in August 2019 at the child’s school, when
the school notified Doyle, she went to the school with the
child’s belongings to facilitate the exchange.
There was no testimony from Franco that Doyle discouraged
the child from going with him or indicated that he was not
going to go; nor did Franco claim that Doyle was not willing
to send the child with him. To the contrary, he testified that
when he asked to pick the child up early in December 2018,
Doyle responded, “[O]f course.” Additionally, the text message
from Doyle to Franco in August 2019 informing him that she
was able to convince the child to meet with him supports her
claims that she actively encouraged and attempted to persuade
the child to go with Franco.
The evidence establishes that despite Doyle’s encourage-
ment, the child was very reluctant to go, and frequently
adamantly opposed to going, with Franco. Huerta opined that
physically forcing the child to go with Franco was not in his
best interests and could be emotionally damaging for him.
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Cite as 30 Neb. App. 910Thus, while we recognize that the responsibility for adher-
ing to a visitation plan does not and should not devolve to
the children, considering that Doyle encouraged the child to
go, enrolled the child in therapy where the therapist worked
with him on going with Franco, and transported him and
his belongings to each exchange while attempting to con-
vince him to go with Franco, the clear and convincing evi-
dence does not establish that Doyle intentionally violated the
court’s order.
Moreover, Franco’s application for contempt enumerates
specific visitation periods. Of those, he acknowledges that he
did not travel to California to attempt to retrieve the child in
the spring of 2018 or the spring of 2019. And the child ulti-
mately returned to Franco in August 2019. Therefore, when
considering whether the visitation actually occurred, it cannot
be said that Franco was deprived of parenting time on the occa-
sions where the visit actually took place.
[16] The remaining parenting time of which Franco was
deprived was Christmas break 2018. As explained above, the
credible evidence establishes that the parties attempted the
exchange on both December 19 and December 21. On each
day, Doyle presented the child and his packed bag and encour-
aged him to go; however, Doyle, her husband, Franco, and law
enforcement officers were all unable to convince the child to
go with Franco. We do not find that this sole instance where
Doyle did not instruct the child not to go with Franco consti-
tutes willful disobedience of a court order. Accordingly, the dis-
trict court erred in holding Doyle in contempt, and we reverse
its decision in this regard. We therefore need not address the
issues Doyle raises related to the purge plan and imposition
of incarceration as part of the civil contempt proceedings. See
Applied Underwriters v. S.E.B. Servs. of New York, 297 Neb.
246, 898 N.W.2d 366 (2017) (appellate court is not obligated to
engage in analysis that is not necessary to adjudicate case and
controversy before it).
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Cite as 30 Neb. App. 910CONCLUSION
For the foregoing reasons, we affirm the district court’s
finding of a material change in circumstances affecting the
best interests of the child. We reverse its decision to award
sole legal and physical custody to Franco and remand the
cause with directions to award sole custody to Doyle, subject
to Franco’s parenting time. We also reverse the court’s decision
to hold Doyle in contempt.
Affirmed in part, and in part reversed
and remanded with directions.