Hawks v. Hawks , 32 Neb. Ct. App. 70 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/11/2023 09:05 AM CDT
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
HAWKS V. HAWKS
Cite as 32 Neb. App. 70Ashley A. Hawks, appellee, v.
Jeff A. Hawks, appellant.
___ N.W.2d ___
Filed July 11, 2023. No. A-22-578.
1. Contempt: Appeal and Error. In a civil contempt proceeding where a
party seeks remedial relief for an alleged violation of a court order, an
appellate court employs a three-part standard of review in which the trial
court’s (1) resolution of issues of law is reviewed de novo, (2) factual
findings are reviewed for clear error, and (3) determinations of whether
a party is in contempt and of the sanction imposed are reviewed for
abuse of discretion.
2. Attorney Fees: Appeal and Error. A trial court’s decision awarding
or denying attorney fees will be upheld on appeal absent an abuse
of discretion.
3. Judgments: Words and Phrases. A judicial abuse of discretion
requires that the reasons or rulings of the trial court be clearly unten-
able insofar as they unfairly deprive a litigant of a substantial right and
a just result.
4. Contempt: Words and Phrases. When a party to an action fails to
comply with a court order made for the benefit of the opposing party,
such act is ordinarily a civil contempt, which requires willful disobedi-
ence as an essential element. “Willful” means the violation was commit-
ted intentionally, with knowledge that the act violated the court order.
5. Contempt: Proof: Presumptions. Outside of statutory procedures
imposing a different standard or an evidentiary presumption, all ele-
ments of contempt must be proved by the complainant by clear and
convincing evidence.
6. Attorney Fees. Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and accepted uni-
form course of procedure has been to allow recovery of attorney fees.
7. ____. Customarily, attorney fees are awarded only to prevailing parties
or assessed against those who file frivolous suits.
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HAWKS V. HAWKS
Cite as 32 Neb. App. 708. Actions: Attorney Fees: Words and Phrases. A frivolous action is one
in which a litigant asserts a legal position wholly without merit; that is,
the position is without rational argument based on law and evidence to
support the litigant’s position.
9. Contempt: Attorney Fees. In the context of a contempt proceeding,
a trial court may award attorney fees in its discretion only in cases in
which the court finds a party in contempt.
10. Actions: Contempt: Attorney Fees. In contempt actions in domestic
relations cases, a trial court is authorized to award attorney fees only
against a party found to be in contempt under Neb. Rev. Stat. § 42-370(Reissue 2016) or Neb. Rev. Stat. § 42-364.15 (Reissue 2016), or if a
trial court determines the contempt action is frivolous, attorney fees
maybe be awarded under Neb. Rev. Stat. § 25-824 (Reissue 2016).
Appeal from the District Court for Gage County: Julie
D. Smith, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Megan M. Zobel, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellant.
Stephanie L. Clark, of Nelson, Clark & Timan, P.C., for
appellee.
Pirtle, Chief Judge, and Bishop and Arterburn, Judges.
Bishop, Judge.
I. INTRODUCTION
The Gage County District Court declined to hold Ashley
A. Hawks in contempt of court in association with Jeff A.
Hawks’ missed parenting time with his three children follow-
ing Jeff’s release from prison. The court did find Ashley in
contempt for failing to pay supervised parenting time fees in
violation of a temporary order requiring her to do so if any
of the children missed their court-ordered parenting time with
their father. Each party was ordered to pay a portion of the
other party’s attorney fees, and after reducing what Jeff was
ordered to pay by what Ashley was ordered to pay, Jeff had
45 days to pay $15,890 toward Ashley’s attorney fees. Jeff
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HAWKS V. HAWKS
Cite as 32 Neb. App. 70appeals the court’s failure to find Ashley in contempt regard-
ing the missed parenting time and the court’s order directing
him to pay a portion of Ashley’s attorney fees. For the reasons
set forth below, we affirm the court’s order declining to hold
Ashley in contempt regarding the missed parenting time but
reverse the court’s order regarding attorney fees and remand
the cause with directions.
II. BACKGROUND
1. Pretrial Proceedings
Ashley and Jeff were married in 2009. They have three
children together: Andrew Hawks, born in 2011; Katelyn
Hawks, born in 2013; and Gracie Hawks, born in 2015. From
February 2016 until August 2020, Jeff was incarcerated fol-
lowing his conviction on two counts of third degree sexual
assault of a child (not involving his own children). During that
time, the district court entered a decree on August 2, 2018, dis-
solving Ashley and Jeff’s marriage. Under the decree, Ashley
and Jeff were awarded joint legal custody of the children and
Ashley was awarded primary physical custody. A settlement
agreement was attached as an exhibit and incorporated into
the decree by reference. The settlement agreement included a
parenting plan, which stated that it was “anticipated that [Jeff
would] remain incarcerated until approximately December
2020.” The parenting plan provided that Ashley “shall take
. . . at least one of the children to visit [Jeff] twice a month”
for the duration of his incarceration. It further provided that
“[i]f the parties are unable to agree to a specific parenting
time schedule after [Jeff’s] release from incarceration, either
party may file a Complaint to Modify seeking to address the
issue of parenting time.”
Jeff was “placed on parole” in August 2020 and “was done
with parole” the following month. On October 27, he filed
a “Complaint for Modification,” claiming that his release
from incarceration was a material change in circumstances
warranting an increase in his parenting time. Ashley filed
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Cite as 32 Neb. App. 70an “Answer and Cross Complaint,” requesting, among other
things, that the court award the parties joint legal custody
and Ashley physical custody of the children, subject to Jeff’s
reasonable rights of supervised visitation. That same day, Jeff
filed a “Motion for Parenting Time,” requesting that the court
enter a temporary order granting him parenting time with
the children.
Following a hearing, the district court entered a temporary
order on December 17, 2020, awarding Jeff supervised parent-
ing time with the minor children every other Sunday from 9
a.m. until 5 p.m. and every Wednesday from 2 until 7 p.m. The
temporary order also required that Jeff pay any fees associated
with the supervision of his parenting time.
On May 14, 2021, Jeff filed a “Motion to Revisit Temporary
Parenting Time,” alleging that he had incurred $11,000 in
supervision fees even though he had been “denied [his] par-
enting time on at least 25 occasions since the entry of the
Temporary Order.” He further alleged that “there have been
no safety concerns reported during any visits with the minor
children” and requested that the court “revisit the issue of
temporary parenting time, including whether visits should be
supervised, who supervises and the cost of said supervisors.”
Jeff simultaneously filed a “Verified Application for Order to
Show Cause,” alleging that Ashley had violated the December
17, 2020, temporary order. Specifically, Jeff listed 25 separate
dates where Ashley allegedly “interfered with and/or denied
[Jeff his] parenting time with” one or more of the children.
Jeff alleged that he had incurred $11,040 in supervised visita-
tion costs through May 8, 2021, and that due to the lack of
visitation, “the visitation company may no longer be able to
provide visitation services.” He requested that judgment be
entered in his favor and that he “recover costs incurred . . .
including reasonable attorney’s fees.” On May 19, the district
court entered an “Order to Show Cause,” ordering Ashley to
appear before the court and show why she should not be found
in contempt of court.
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HAWKS V. HAWKS
Cite as 32 Neb. App. 70Following a hearing on Jeff’s motion to revisit parenting
time, the district court entered an amended temporary order on
July 10, 2021. The amended order changed Jeff’s supervised
parenting time to every other Saturday from noon until 5 p.m.
and every Wednesday from 2 to 6 p.m., permitted certain indi-
viduals to supervise Jeff’s parenting time, and required that
Ashley pay for supervision fees for any children who did not
attend Jeff’s parenting time.
On January 28, 2022, Jeff filed a “Verified Amended
Application for Order to Show Cause,” alleging that there had
been 69 instances where Ashley “interfered with and/or denied
[Jeff his] parenting time with” one or more of the children. He
further stated that since the entry of the amended temporary
order, Ashley failed to reimburse Jeff for $1,460 in supervi-
sion fees for missed parenting time. He also alleged that “due
to the lack of visitation that has occurred from December
2020 until January 2022, the Pathfinders visitation company
suspended services with Jeff” and Jeff has struggled to find
another supervision service. On January 31, the district court
entered an order to show cause, ordering Ashley to appear
before the court and show why she should not be found
in contempt.
2. Trial
Trial was held on the contempt action only on February 14,
April 4 and 12, and May 13, 2022. Ashley and Jeff testified,
as well as several other witnesses, and exhibits were received.
The evidence relevant to the issues on appeal follows.
(a) Jeff’s Incarceration
Jeff testified that he was convicted of “two counts of third
degree sexual assault of a child” and began a 4½-year period
of incarceration on February 9, 2016. He testified that, at
that time, “Andrew was four, Katelyn had just turned three,
and Gracie was ten months” old. Early on in Jeff’s incar-
ceration, the children generally visited Jeff on a weekly basis.
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HAWKS V. HAWKS
Cite as 32 Neb. App. 70Ashley transported the children to visit Jeff prior to the dis-
solution of their marriage in August 2018, at which point the
district court ordered that Jeff have two visits per month with
at least one of the children. Jeff stated that the visits happened
“[v]ery regularly at the beginning, but towards the end” of his
incarceration, “there were some months that [he] didn’t get
both visits.” Jeff stated that his father brought the children
to most of the visits following the divorce and that Ashley
brought them to a few of the visits. Jeff stated that the visits
were 4 hours long and that he and the children often played in
the gym, played games, or had “father/daughter dances.” He
stated that the visits “went well” and that the children “would
hug [him] at the beginning of visits, and at the end of visits.”
Jeff also stated that he regularly spoke with the children on the
phone and that he had two 12-hour furloughs during his incar-
ceration to celebrate Christmas and Katelyn’s birthday.
(b) First Temporary Order
When Jeff was released from prison in August 2020, he and
Ashley informally arranged visits with the children, where they
“would meet . . . for an ice cream cone in a park or go[] to the
skate park.” Jeff subsequently filed his modification complaint
and request for parenting time because he did not feel that his
time with the children was occurring regularly and “Ashley
was insisting on her presence there.”
When the district court entered the first temporary order in
December 2020 granting Jeff supervised parenting time, Jeff
hired Pathfinders for supervision services. He consulted with
Ashley about the service ahead of time. Jeff stated that he paid
for the services, which amounted to thousands of dollars in
fees, and that he was charged for the services even when the
children did not attend his parenting time. Jeff testified that
under the initial temporary order, he was supposed to have
180 hours of parenting time between December 26, 2020, and
June 16, 2021, but he was only able to exercise 35 hours with
Andrew, 80 with Katelyn, and 130 with Gracie.
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HAWKS V. HAWKS
Cite as 32 Neb. App. 70Text messages between Ashley and Jeff discussing Ashley’s
terms for Jeff’s parenting time were received into evidence. In
one message, Ashley indicated that she would prefer the super-
visor be a woman in case it was necessary for the supervisor
to take Gracie to the bathroom. In another message, Ashley
stated, “You will not be helping the kids change their pants or
wiping butts, giving baths or anything like that.” She further
wrote, “[T]he communication between the kids and I will be
very open. And safety rules will be explained.” In another mes-
sage, Ashley told Jeff he would have to participate in “special-
ized treatment” for him to earn her trust back. She stated, “I
will not take any chances at all with my kids. I know you want
to think you would never hurt them but [I’m] sure you believed
you would never hurt those boys and you did.” On cross-
examination, Jeff stated that it was appropriate for Ashley to
share her concerns with him.
On December 26, 2020, the children went to Jeff’s house for
their first visit. Jeff said that Ashley texted him during the visit
to inform him that the children were texting her, asking her to
pick them up early. Jeff believed this interfered with his par-
enting time; however, the children ultimately “stayed the entire
time and it was a good visit.”
The children visited Jeff again on December 30, 2020,
and January 1, 2021. Jeff described an instance where the
children were arguing about whether they could play “tag”
with him. When he asked them why they would not be able
to play tag, they said that “it was a rule.” When he questioned
Ashley about the rule, she responded in a text message that
she had previously discussed with the children “grooming
behaviors by adults and how grooming usually starts with
nonsexual touching, such as accidental touching during play
like tag, wrestling or things like that. Then that kind of
touching desensitize[s] kids so they don’t resist more sexual-
ized touching.”
Jeff asked Ashley whether the children had been given
rules for his house. Ashley responded that she did not give
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HAWKS V. HAWKS
Cite as 32 Neb. App. 70the children rules specifically about him, but they had been
educated about “good touch, bad touch,” and that “they are in
charge of their bodies and don’t have to have physical contact
with anyone they don’t want to.” She stated that “[t]his is all
in general, not just about [Jeff].” Jeff indicated that he was
concerned that Ashley was having these conversations with
the children outside of his presence. He wanted to be involved
in the conversations because “it would show a unified front
to the kids . . . and help them understand that the conversa-
tions are not necessarily about [him] but about their safety
in general.”
According to Jeff, over time the children attended his parent-
ing time “less and less,” although Ashley brought the children
to his house for almost all of his scheduled parenting time.
Jeff stated that the only times Ashley did not transport the kids
to his parenting time were two occasions where she canceled
Jeff’s parenting time. In one instance, she canceled because
she had a medical appointment in Omaha, Nebraska, that ran
long. On another occasion, she canceled because something
came up at work and she was not able to transport the children
to Jeff’s house. Ashley did not want to make the third party
who picked up the children have to drop them off at Jeff’s
house because she did not want to subject that person to the
stress of transitions. Jeff stated that Ashley offered to schedule
“make up” visits for his missed parenting time, although they
had not made up one of the two missed visits at the time of
trial. When asked whether he had requested to make up that
parenting time, Jeff responded that he had not requested to
make up the parenting time because “it’s been difficult, with
supervisors and [the children’s] basketball.”
(c) Attempted Transitions
During the attempted transitions, Ashley would park her
vehicle in front of Jeff’s house, sometimes leaving it running.
Jeff stated that Ashley would get out of the vehicle at some
point, but sometimes not until he walked out to the vehicle.
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Cite as 32 Neb. App. 70Jeff “could kind of get a sense of how the kids were feeling”
when he approached the vehicle. Sometimes, Gracie screamed,
and Katelyn and Andrew ignored him. Other times, the chil-
dren were calm and conversational. Whether the situation
escalated depended on the children’s moods. According to Jeff,
they generally spent “between 40 minutes and 60 minutes . . .
at the car” attempting to coax the children to exit the vehicle
and attend parenting time with him.
Jeff described Andrew as the “most resistive and . . . argu-
mentative” among the children during transitions to Jeff’s par-
enting time. Andrew was sometimes “disrespectful” and would
not let Jeff talk or he would make noises as Jeff talked. One
time he called Jeff a “dumb ass,” and there were a couple of
instances where he left the vehicle and began walking away
from the house. According to Jeff, when Andrew is disrespect-
ful, Ashley will “say his name or give him a look. But . . .
she’s fairly quiet during it, maybe trying to change the sub-
ject . . . .”
Jeff testified that Katelyn’s behavior during transitions was
“quieter” and “not as argumentative,” but she still had out-
bursts at times. Gracie threw tantrums and screamed during
transitions. The children sometimes said that they did not
trust Jeff and that he was not their father. Ashley’s focus dur-
ing drop offs was on keeping the children calm, while Jeff
was focused on convincing the children to exit the vehicle.
When asked whether Ashley imposed “consequences” for the
children’s refusal to leave the vehicle, Jeff responded that he
had not heard “anything specific from her on consequences
that she’s implemented.” However, when the children’s thera-
pist, Brenda Wilcox, was asked whether the children “should
have a consequence if they don’t go” to Jeff’s parenting time,
Wilcox responded, “No.”
Ashley stated that she generally did not “give out con-
sequences” to the children for disrespecting Jeff, but they
would discuss it later “after they’ve calmed down.” She stated
that giving consequences was not part of her parenting style
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Cite as 32 Neb. App. 70generally. When the children were disrespectful during transi-
tions, she tried to calmly interject by “mak[ing] eye contact
with them, try[ing] to hold their hand, try[ing] to redirect them
into a different conversation.” She stated that Jeff immediately
responded when they were disrespectful to him and her, and
“adding fuel to the fire” was not going to help because “they’re
already escalated.”
When asked whether he believed Ashley was “doing every-
thing she [could] to get the children to go to . . . parenting
time,” Jeff responded, “No.” He elaborated that he believed
they could “show a more unified front.” Jeff stated that they
disagreed on how long to wait at the vehicle to get the children
to come into his house for parenting time. On numerous occa-
sions he had asked Ashley to stay “as long as it takes.” Wilcox
testified that she believed “after an hour, hour 15 minutes[,] it
[is] counterproductive” to continue trying to get the children to
attend Jeff’s parenting time.
Ashley testified that she encouraged the children to attend
Jeff’s parenting time by speaking with the children the night
before and the morning of and asking them whether they
would like to take any of their belongings with them. She
stated that if one of them was needing something for “their
activities or their sports or new shoes or something,” she sug-
gested to the children that they purchase the item with Jeff
“to get them excited about . . . getting something with their
dad.” Wilcox believed there was nothing more Ashley could
do to get the children to attend Jeff’s parenting time. When
Wilcox was asked whether she had seen any behavior by
Ashley that would lead her to believe Ashley was “sabotag-
ing [the] relationship” between the children and Jeff, Wilcox
responded, “No.”
When Ashley was asked whether she believed the chil-
dren “should have a say when it comes to attending parent-
ing time with [Jeff],” she responded that she did not believe
the children should have a say, but that there was “a lot of
work to do with the kids personally and . . . through family
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Cite as 32 Neb. App. 70counseling with their dad to try to build that relationship back.”
When asked whether she would like Jeff “to be a constant in
[the children’s] life,” Ashley responded, “Absolutely.”
(d) April 14, 2021, Incident
Jeff described an incident that took place on April 14, 2021,
when Ashley picked Andrew up from Jeff’s home 1½ hours
before Jeff’s parenting time was over. Andrew had texted
Ashley that he had a headache and wanted her to pick him
up. Ashley notified Jeff and suggested that he give Andrew
“Tylenol, maybe Sprite . . . and a snack.”
According to Ashley, Andrew threatened to run away from
Jeff’s house if she did not pick him up and she was worried
that Andrew would leave Jeff’s house and walk toward her
home along a busy road with no sidewalk. Ashley sought
advice from Wilcox, who testified that she believed “Andrew
had taken off walking” based on what Ashley said to her.
Wilcox told Ashley that “it may not have been in the best
interest of the situation that Andrew stay.” Ashley then noti-
fied Jeff that she was picking Andrew up and called Jeff when
she was in his driveway and Andrew was in the vehicle with
her. Andrew was already outside Jeff’s house when Ashley
arrived. Ashley testified that she was “follow[ing] [Wilcox’s]
recommendation, but in hindsight, [she] should have let [Jeff]”
handle the situation.
(e) Text Messages Regarding
Children’s Behavior
Ashley sent Jeff the following text message on May 7,
2021: “Andrew said he is not stayin[g] for visit and does not
want to get up early and ride in the car for 2 h[ours] just to
go to [L]incoln and straight back. Katelyn is still saying she
does not want to go. Just fyi.” When asked whether it was
the children’s choice whether to go to Jeff’s parenting time,
Ashley responded, “No. I think I was just preparing Jeff for
how they were behaving that morning.” According to Ashley,
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HAWKS V. HAWKS
Cite as 32 Neb. App. 70when she notified Jeff that the children did not want to attend
parenting time with him, it was to “giv[e] him the heads-up”
about the children’s mood, not to signify that she was not
bringing them to his parenting time. Jeff confirmed that Ashley
frequently informed him of the children’s mood before visits so
he would know what to expect.
(f) June 5, 2021, Incident
Ashley drove all three children from Beatrice, Nebraska, to
Lincoln, Nebraska, for Jeff’s parenting time so Jeff could take
them to the zoo. Gracie and Katelyn attended parenting time
that day, but Andrew did not. Ashley looked for things to do to
pass the time with Andrew. She and Andrew went to the mall,
where they walked around. She stated that “Andrew spotted an
arcade,” which she did not know was in the mall. They entered
the arcade, “got a snack in there, and then [Andrew] wanted to
play a few games.” They were in the arcade for “[m]aybe 10
minutes, 15.”
(g) July 2021 Amended
Temporary Order
In June 2021, Jeff filed a motion with the district court to
“revisit parenting time” because Pathfinders informed him it
would no longer be providing supervision services to him and
he was struggling to find other supervision services. He stated
that “[t]he kids weren’t attending regularly” and he “didn’t
feel like it was a priority of Ashley to get [the children] to
attend visits.” On July 10, the court entered an amended tem-
porary order, which required Ashley to pay supervision fees
for any children that did not attend Jeff’s parenting time. Jeff
testified that although there was a “brief restart” when the
order was entered, the children’s attendance ultimately did not
improve. According to Jeff, from July 2021 until January 5,
2022, Jeff was supposed to have 130 hours of parenting time,
but he had only 10 hours with Andrew, 20 hours with Katelyn,
and 50 hours with Gracie.
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Cite as 32 Neb. App. 70(h) Children’s Therapy
In March 2021, Ashley began taking the children to Wilcox
on a weekly basis for individual therapy. Wilcox testified that
she worked with the children because they were “experienc-
ing some anxiety . . . and they didn’t want to attend visits
with [Jeff].” The children expressed different reasons for not
wanting to go to Jeff’s parenting time. Andrew was embar-
rassed of and angry with Jeff. Katelyn and Gracie were not
comfortable with Jeff. Wilcox indicated that it is normal for
children to “have feelings about a situation such as this” and
that it is acceptable to validate the children’s feelings, while
still setting expectations that they attend parenting time with
their father.
Wilcox observed a few of the attempted transitions during
the summer of 2021. She described the transitions as “stress-
ful for the family.” Wilcox observed Ashley “get out of the car
a couple of different times,” the children refusing to get out
of it while crying and screaming, and the children “ignoring
[Jeff] by . . . looking at their phones or just not respond-
ing to him.” Wilcox did not believe it would be appropriate
for Ashley and Jeff to physically remove the children from
the vehicle. She believed it would “backfire” on Jeff and,
“depending on the details and the context, it could maybe
cause some trauma” for the children. Both Ashley and Jeff
testified that they agreed not to forcibly remove the children
from the vehicle.
Jeff testified that in October 2021, he suggested taking the
children to family therapy, but Ashley wanted the children to
wait a few weeks before beginning family therapy so they
could prepare for it. In November 2021, Jeff and the children
began attending family therapy sessions with Wilcox every 2
weeks. On weeks that the children did not have family therapy,
they were scheduled for individual therapy. According to Jeff,
by the first day of trial, the children had attended “[f]ive
or six” family therapy sessions with him. Gracie attended
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Cite as 32 Neb. App. 70all the family therapy sessions; Andrew and Katelyn missed
one session because they refused to attend.
Wilcox stated that Ashley was receptive to Jeff’s participa-
tion in family therapy with the children. She stated the focus
of family therapy was on “enhancing [Jeff’s] relationship with
the children.” This was why Ashley was not generally involved
in family therapy. Wilcox testified that the children had made
progress in her time working with them but not as much as she
had hoped by the time of trial. She stated that Andrew was at
a “developmental age and stage where he is learning to assert
himself and so he is defiant sometimes.” She stated that he was
distracting for Katelyn and Gracie and sometimes disruptive
during family therapy.
Jeff testified that Ashley did not schedule the children to
attend individual therapy from early November 2021 to early
January 2022. Ashley explained that she attempted to schedule
the children’s individual therapy appointments with Wilcox
during this period, but their schedules did not align. Ashley
also stated that “the kids had several orthodontist appoint-
ments and eye appointments” and “it was just a really busy
time, so it was just missed unintentionally.” The court had not
ordered that the children attend family or individual therapy at
any point.
(i) Wednesday Parenting Time
Jeff testified that he “didn’t feel [Ashley] was very sup-
portive with Wednesday visits.” Ashley admitted that she was
initially concerned about Jeff’s Wednesday parenting time
because she believed it may disrupt the children’s routine, but
she ultimately brought the children to the visits. On January
6, 2021, the children were scheduled to attend parenting time
with Jeff on a Wednesday for the first time. When Ashley
arrived with the children, the children refused to exit the
vehicle and Ashley was crying. The children did not leave
the vehicle, so Ashley eventually left with them. On cross-
examination, Jeff admitted that Ashley could have been upset
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Cite as 32 Neb. App. 70because the children did not want to go; Ashley did not cry or
display negative emotions at any of the other attempted tran-
sitions. The following Wednesday, the children again refused
to exit the vehicle and ultimately did not attend Jeff’s parent-
ing time. Over the course of that year, Ashley continued to
bring the children to Jeff’s house for his parenting time on
Wednesdays, but she and Jeff struggled to get the children to
exit the vehicle.
In January 2022, Wilcox suggested that Jeff pick the chil-
dren up from school for his parenting time on Wednesdays.
Wilcox stated that although Ashley had hoped the children’s
relationship with Jeff would have been better by the time he
started picking them up from school, she followed Wilcox’s
recommendation. Ashley, Jeff, and Wilcox informed the chil-
dren of the plan for Jeff to pick them up. Jeff testified that
Ashley “took the lead and explained . . . what we were going to
try and was helpful.” Jeff stated that the children were upset by
this information, so they had the children provide input as to
where they wanted Jeff to pick them up. Ashley provided sug-
gestions for pick-up locations and advised Jeff how she usually
conducts school pick-ups.
Jeff was supposed to pick the children up from school
for the first time on January 26, 2022. While Jeff was pick-
ing Gracie up, the principal of Andrew and Katelyn’s school
called to inform Jeff that Andrew and Katelyn left in a
maroon vehicle and had arrived at the YMCA where Ashley
works. Ashley and Jeff later learned that the mother of one
of Andrew’s friends had taken Andrew and Katelyn to the
YMCA. The friend’s mother testified that nobody asked her
to pick up Andrew and Katelyn that day, but after picking her
son up from school, she saw Andrew and Katelyn walking
“about a block and a half” away from the school. When she
asked Andrew where they were going, he informed her they
were going to the YMCA. It was windy outside and she knew
that Andrew was recovering from a foot injury, so she offered
to give Andrew and Katelyn a ride. She dropped them off
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Cite as 32 Neb. App. 70at the YMCA and left. The friend’s mother testified that she
did not talk to Ashley before dropping the children off and that
she did not know that Jeff was supposed to pick them up for
his parenting time.
That day, Jeff and the principal of Gracie’s school struggled
for over an hour to get Gracie to go with Jeff. Gracie eventu-
ally left with Jeff once he assured her that she could stop by
the YMCA to give Ashley a hug. Ashley informed Jeff that he
could not be on YMCA property because he is a registered sex
offender. She instructed him to park across the street and have
the supervisor walk Gracie to the YMCA.
Ashley testified that when Gracie arrived at the YMCA,
she gave her a gumball and encouraged her to go back out
to Jeff’s vehicle. She learned at that time that Andrew and
Katelyn had entered the pool without her permission. Andrew
and Katelyn did not attend Jeff’s parenting time until Ashley
had completed her workday. She transported them to Jeff’s
house where they ate a pizza that Jeff and Gracie prepared
together. Jeff stated that Andrew and Katelyn were there for
“15, 20 minutes or so.” Ashley stated that she did not remem-
ber giving Andrew and Katelyn “specific consequences” for
the incident but that she discussed with them that what they
did “wasn’t right.”
Andrew and Katelyn have continued to walk to the YMCA
on Wednesdays instead of waiting for Jeff to pick them up for
his parenting time. Ashley stated that she takes away Andrew’s
and Katelyn’s phones when they avoid being picked up by Jeff
on Wednesdays.
3. District Court’s
July 9, 2022, Order
The district court entered an order finding that Ashley was
not in willful contempt of court regarding parenting time but
was in willful contempt regarding nonpayment of fees for
missed supervised parenting time.
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Cite as 32 Neb. App. 70(a) Not in Willful Contempt
Related to Parenting Time
Regarding parenting time, the district court concluded Jeff
had not met his burden of proving, by clear and convincing
evidence, that Ashley was in willful contempt for interfering
with his parenting time. The court explained:
There is simply no evidence of any wrongdoing on
[Ashley’s] part. To the contrary, [Ashley] seems to be
making every possible effort, short of physical force, to
get the children to attend [Jeff’s] parenting time. Both
parties have agreed not to use physical force. It is no
more [Ashley’s] fault than it is [Jeff’s] that the children
will not get out of the vehicle for [Jeff’s] parenting time.
This is an unfortunate situation. [Jeff] was in prison
for 4.5 years. The children, particularly the older two,
are having a difficult time with these family dynamics.
The parents are both making efforts, including trying
to coparent and having the children in counseling. The
relationship with the children may never return to what
it was prior to the incarceration, and if it does, that is
going to take time. [Ashley] is not in willful contempt
of court.
(b) Willful Contempt for
Nonpayment of Fees
The district court did find Ashley in contempt of court for
failing to reimburse Jeff $1,460 in parenting time supervi-
sion fees since the entry of the July 10, 2021, temporary
order. The court recognized that “the parties have a disparity
in income” but that there was no evidence Ashley had “any
type of disability which would prevent her from earning the
money through regular or supplemental employment.” The
court further noted that Ashley had borrowed money to pay
her attorney fees and there was “no evidence to suggest that
she could not have done the same to meet her financial obliga-
tions under the July 10, 2021[,] order.” The court found that
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Cite as 32 Neb. App. 70Ashley was “in willful contempt for failure to reimburse [Jeff]
in the amount of $1,460.”
(c) Modification of Supervised
Parenting Time
The district court further noted that it could modify a
parenting plan in a contempt action. It pointed out that Jeff
had spent “over $14,000.00 on supervised parenting time.”
The court explained that the “main purpose of the super-
vised parenting time was to ensure that the children are safe,
given [Jeff’s] conviction” and the “main purpose of order-
ing [Ashley] to pay for visits which the child(ren) failed to
attend was to give her a financial incentive to ensure that all
three children attend parenting time,” but that “[t]his is not
working.” The court observed that “there have been no safety
concerns for the children while in their father’s care,” and
witnesses testified that they had not observed any safety con-
cerns, the children appeared comfortable, Jeff appropriately
cared for the children during visits, and Jeff “is a safe parent.”
The court also stated that Ashley testified she believed the
children were safe during visits and that no safety concerns
had been reported to her. Therefore, “[h]aving profession-
als supervise these visits has been expensive, and it appears
to be unnecessary.” The court proceeded to amend the July
10, 2021, amended temporary order to allow “‘the children’s
paternal grandfather, another mutually-agreeable adult mem-
ber of the father’s family . . . or another mutually-agreeable
. . . individual’” to supervise Jeff’s parenting time. It further
directed that Ashley “‘shall not use the inability to agree upon
a supervisor as a reason for withholding parenting time’” and
that if she does not agree upon a suitable person, “‘she shall
be prepared to provide the Court with a reasonable, articulable
justification for disagreeing on the supervisor.’”
(d) Attorney Fees
Regarding attorney fees, the district court indicated it had
“the power to award attorney’s fees in a contempt action.”
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Cite as 32 Neb. App. 70It determined that Ashley’s “reasonable attorney’s fees are
approximately $22,000” and Jeff’s “reasonable attorney’s fees
are approximately $24,500.” The court approximated that 90
percent of the case was spent on “parenting time issues” and
10 percent was spent on “failing to pay supervision fees.”
Since the court found that Jeff’s “action against [Ashley]
regarding the parenting time was without merit,” it ordered
Jeff to pay Ashley’s attorney fees of $19,800 (90 percent of
Ashley’s attorney fees of $22,000). And since the court found
Ashley was “in willful contempt for failure to pay the super-
vision fees,” it ordered Ashley to pay Jeff’s attorney fees in
the amount of $2,450 (10 percent of Jeff’s attorney’s fees
of $24,500).
The court ordered Ashley to serve 14 days in jail for failing
to pay the supervision fees but provided that she could purge
herself of contempt by paying Jeff the $1,460 in supervision
fees and the $2,450 in attorney fees. It ordered Jeff to pay
$15,890 to the district court clerk within 45 days. The court
further ordered that “[b]ecause the amount owed by [Ashley]
has been allocated to reduce the amount [Jeff] is required
to pay, the Court finds that [Ashley] has purged herself of
contempt and will not have to serve the fourteen (14) days
in jail.”
Jeff appeals.
III. ASSIGNMENTS OF ERROR
Jeff assigns that the district court abused its discretion in
(1) failing to find Ashley in contempt of court for her interfer-
ence and denial of parenting time and (2) ordering him to pay
attorney fees.
IV. STANDARD OF REVIEW
[1] In a civil contempt proceeding where a party seeks
remedial relief for an alleged violation of a court order,
an appellate court employs a three-part standard of review
in which the trial court’s (1) resolution of issues of law is
reviewed de novo, (2) factual findings are reviewed for clear
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Cite as 32 Neb. App. 70error, and (3) determinations of whether a party is in con-
tempt and of the sanction imposed are reviewed for abuse
of discretion. Cech v. Cech, 30 Neb. App. 618, 971 N.W.2d
801 (2022).
[2,3] A trial court’s decision awarding or denying attorney
fees will be upheld on appeal absent an abuse of discretion. In
re Estate of Forgey, 298 Neb. 865, 906 N.W.2d 618 (2018). A
judicial abuse of discretion requires that the reasons or rulings
of the trial court be clearly untenable insofar as they unfairly
deprive a litigant of a substantial right and a just result. Id.V. ANALYSIS
1. Contempt
Jeff contends the district court abused its discretion in fail-
ing to find Ashley in contempt of court for her interference and
denial of his parenting time.
[4,5] Civil contempt proceedings are instituted to preserve
and enforce the rights of private parties to a suit when a
party fails to comply with a court order made for the ben-
efit of the opposing party. See, Hossaini v. Vaelizadeh, 283
Neb. 369, 808 N.W.2d 867 (2012); Smeal Fire Apparatus
Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010),
disapproved on other grounds, Hossaini v. Vaelizadeh, supra.
Willful disobedience is an essential element of contempt;
“willful” means the violation was committed intentionally,
with knowledge that the act violated the court order. Hossaini
v. Vaelizadeh, supra. Outside of statutory procedures impos-
ing a different standard or an evidentiary presumption, all
elements of contempt must be proved by the complainant by
clear and convincing evidence. See Smeal Fire Apparatus Co.
v. Kreikemeier, supra.With respect to contempt proceedings related to inter-
ference with visitation and parenting time, the Nebraska
appellate courts have looked to the custodial parent’s con-
duct and whether the parenting time actually occurred. See
Rodas v. Franco, 30 Neb. App. 910, 974 N.W.2d 856 (2022).
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Cite as 32 Neb. App. 70For example, in Krejci v. Krejci, 304 Neb. 302, 934 N.W.2d
179 (2019), the Nebraska Supreme Court affirmed a trial
court’s decision not to hold a mother in contempt for the
children’s nonattendance of the grandfather’s visitation time
because the mother did not encourage or instruct the children
to refuse to attend the visit. In Martin v. Martin, 294 Neb.
106, 881 N.W.2d 174 (2016), the Nebraska Supreme Court
upheld a decision by a trial court to hold a parent in contempt
where that parent consistently transferred the responsibility of
deciding whether to attend parenting time to the children and
the noncustodial parent repeatedly was unable to exercise his
court-ordered parenting time.
Most recently, in Rodas v. Franco, supra, this court reversed
a finding of contempt against the mother, the custodial par-
ent, where the father missed his scheduled parenting time on
various occasions even though the mother encouraged the
child to attend the father’s parenting time, enrolled the child in
therapy where the therapist worked with the child on attending
the father’s parenting time, and transported the child and his
belongings to each transition while attempting to convince him
to go with the father.
Jeff argues that the facts of the present case are like those
in Martin v. Martin, supra, where the father was not able to
exercise his parenting time with his sons on numerous occa-
sions over a 4-month period. There, the trial court received
evidence of communications between the parties that showed
the mother was deferring to the decisions of the children that
they did not want to go to the father’s parenting time and plac-
ing the responsibility on the father to make the children spend
parenting time with him. The Nebraska Supreme Court deter-
mined the lower court did not abuse its discretion in finding the
mother’s behavior to be in willful contempt, stating:
As a singular event, [the mother’s] allowing the boys
to exercise the final decisionmaking authority in regard
to [the father’s] parenting time may have been defen-
sible, but the consistent pattern of her transferring her
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Cite as 32 Neb. App. 70responsibility to the boys supports the finding of the trial
court. [The mother’s] continued behavior, coupled with
the evidence that [the father] was not able to exercise his
court-ordered parenting time, leads to the further finding
that there was no abuse of discretion by the trial court in
determining [the mother] was in willful contempt for not
allowing [the father] parenting time as ordered.
Id. at 119, 881 N.W.2d at 183-84.
On the other hand, Ashley argues that the facts of the pres-
ent case are more comparable to Rodas v. Franco, 30 Neb.
App. 910, 974 N.W.2d 856 (2022).
In Rodas v. Franco, supra, there was no evidence that
the mother told the child he was free to refuse to attend his
father’s parenting time or discouraged him from going. This
court observed that when the child expressed that he did not
want to attend the father’s parenting time, the mother “would
try to calm him down, encourage him to spend time with [the
father], remind him of the fun things they would do together,
and assure him that she would call him while he was gone.”
Id. at 945, 974 N.W.2d at 879. The mother also spoke with the
family therapist about how to make exchanges go smoothly.
Despite the mother’s encouragement, the child often refused
to attend his father’s parenting time. The family therapist
advised against physically forcing the child to attend the
father’s parenting time because it could be emotionally dam-
aging for him.
Here, it was undisputed that Jeff was unable to exercise
his parenting time with at least one of the children during
the 69 days listed in his amended application for order to
show cause. Jeff argues that, similar to Martin v. Martin, 294
Neb. 106, 881 N.W.2d 174 (2016), Ashley interfered with his
parenting time by “permitting the children to have a choice
and by giving them the authority to decide whether they want
to attend parenting time or not.” Brief for appellant at 29.
However, Ashley testified that when she discusses Jeff’s par-
enting time with the children, she “never lay[s] it out to them
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Cite as 32 Neb. App. 70like they have a choice”; she simply notifies them that they
“have Dad’s today.” Ashley transported the children to Jeff’s
house or another agreed-upon location for almost all of Jeff’s
scheduled parenting time. There were only two times when
Ashley did not transport the children: once when she had a
medical appointment in Omaha that ran long and once when
something came up at work. Because of the difficulty Ashley
and Jeff had getting the children to cooperate in parenting
time transitions, Ashley was not comfortable asking a third
party to transport the children for her.
Before bringing the children to Jeff’s house, Ashley actively
encouraged them to attend Jeff’s parenting time by suggesting
that they bring certain belongings with them or have Jeff take
them to buy certain items they need for their activities. Despite
Ashley’s efforts, when she took the children to Jeff’s house,
they often refused to exit the vehicle.
Ashley and Jeff had to coax the children to exit the vehicle
for an average of 40 to 60 minutes at each attempted tran-
sition. When the children were acting out in the vehicle,
Ashley attempted to calm them down. Additionally, Wilcox
testified that Ashley helped with “brainstorming” ideas for
how to get the children to attend Jeff’s parenting time.
Wilcox also stated that she believed Ashley was doing all
she could to get the children to attend Jeff’s parenting time,
short of physically removing the children from the vehicle,
which Wilcox advised could “backfire.” Regarding the lack
of “consequences” imposed by Ashley for the children’s non-
attendance of Jeff’s parenting time, Wilcox testified that she
did not believe the children should be punished for that.
Additionally, Ashley testified that imposing consequences is
not generally a part of her parenting style. Regardless, when
Andrew and Katelyn went to the YMCA instead of Jeff’s
Wednesday parenting time, Ashley took away their phones for
part of the evening.
Ashley enrolled the children in individual therapy in
March 2021, in hopes of improving the children’s relationship
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Cite as 32 Neb. App. 70with Jeff. The children also began attending family therapy
with Jeff in November. Wilcox testified that Ashley was recep-
tive to Jeff’s participation in family therapy. Even so, Jeff
claims that Ashley “failed to make the children’s individual
and family therapy a priority.” Brief for appellant at 23. He
points out that Ashley failed to schedule the children for indi-
vidual therapy from early November 2021 to early January
2022. However, Ashley explained that her failure to schedule
the appointments during this period was not intentional; it
was simply a busy time, and she could not get schedules to
align. During this time, the children continued to attend fam-
ily therapy, and in January 2022, the children resumed their
individual therapy.
Jeff argues that Ashley has “passively interfered” with his
parenting time by discussing safety rules with the children.
Brief for appellant for 23. However, Ashley testified that she
did not discuss grooming, “good touch” and “bad touch,”
or any other safety rules with the children in relation to Jeff
specifically; she discussed such issues with the children in
general terms.
Jeff contends Rodas v. Franco, 30 Neb. App. 910, 974
N.W.2d 856 (2022), is distinguishable because the amount of
missed parenting time in this case is greater than in Rodas.
However, the circumstances in this case are unique in that the
children’s relationship with Jeff was damaged because he was
incarcerated for a period of 4½ years for two convictions of
third degree sexual assault of a child. Ashley is attempting to
maintain the children’s safety while also trying to support the
children’s relationship with Jeff. We agree with the district
court’s observation that it may take time for Jeff to heal his
relationship with the children.
While we recognize that the responsibility for adhering
to a parenting plan does not and should not devolve to the
children, the clear and convincing evidence does not establish
that Ashley intentionally interfered with Jeff’s parenting time.
Accordingly, the district court did not abuse its discretion
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the missed parenting time.
2. Attorney Fees
Jeff also assigns that the district court abused its discretion
in ordering him to pay $19,800 of Ashley’s attorney fees. He
points out that he had missed over 69 days of parenting time so
his case “was filed with merit and was not frivolous.” Brief for
appellant at 36. Jeff further argues that he “was not found in
contempt, nor was there an action on file for him to be found
in contempt,” and that attorney fees are awarded “when there
has been a finding of contempt.” Id. We agree with Jeff that
the court abused its discretion by ordering him to pay a portion
of Ashley’s attorney fees, since there is no authority for such
an award.
[6-8] Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow
recovery of attorney fees. Garza v. Garza, 288 Neb. 213, 846
N.W.2d 626 (2014). Customarily, attorney fees are awarded
only to prevailing parties or assessed against those who file
frivolous suits. Id. Additionally, Neb. Rev. Stat. § 25-824(Reissue 2016) provides for “reasonable attorney’s fees and
court costs against any attorney or party who has brought or
defended a civil action that alleges a claim or defense which
a court determines is frivolous or made in bad faith.” A frivo-
lous action is one in which a litigant asserts a legal position
wholly without merit; that is, the position is without rational
argument based on law and evidence to support the litigant’s
position. Nathan v. McDermott, 306 Neb. 216, 945 N.W.2d 92(2020). The district court made no finding that Jeff’s action
was frivolous, nor would the record support such a finding.
Specific to contempt proceedings in domestic relations
actions, Neb. Rev. Stat. § 42-370 (Reissue 2016) provides
that “[c]osts, including a reasonable attorney’s fee, may be
taxed against a party found to be in contempt.” The statute
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successfully defending a contempt action. Additionally, Neb.
Rev. Stat. § 42-364.15 (Reissue 2016) provides for “reason-
able attorney’s fees” to be taxed against a parent found in
contempt in the enforcement of orders relating to “parenting
time, visitation, or other access” with a minor child.
[9] In Hoppe v. Hoppe, No. A-98-1153, 2000 WL 4136(Neb. App. Jan. 4, 2000) (not designated for permanent pub-
lication) (petition for further review denied March 1, 2000),
this court reversed a trial court’s award of attorney fees to a
party who successfully defended against a contempt action.
After examining § 42-370 and case law supporting an award
of attorney fees against someone found in contempt, this
court determined that “[u]nder Nebraska law, a trial court
may award attorney fees in its discretion only in cases in
which the court finds a party in contempt.” 2000 WL 4136at *7. See, also, Wiseman v. Wiseman, No. A-04-514, 2005
WL 2347678 (Neb. App. Sept. 27, 2005) (not designated for
permanent publication) (trial court abused its discretion by
ordering former husband to pay attorney fees when he was
not found in contempt, nor was his request for show cause
order frivolous).
[10] Accordingly, in contempt actions in domestic rela-
tions cases, a trial court is authorized to award attorney fees
only against a party found to be in contempt under § 42-370
or § 42-364.15, or if a trial court determines the contempt
action is frivolous, attorney fees maybe be awarded under
§ 25-824. Because Jeff was not found to be in contempt, nor
was his action frivolous, the district court abused its discre-
tion by ordering Jeff to pay any of Ashley’s attorney fees, and
we reverse, and remand with directions to vacate that portion
of the order. And since there is now no attorney fees award
owed by Jeff to offset what the court ordered Ashley to pay,
we briefly address the remaining obligation under the July 9,
2022, order.
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Cite as 32 Neb. App. 70As set forth above, the district court found Ashley in con-
tempt for failing to pay $1,460 in supervised parenting time
fees. Accordingly, the court had the authority to order Ashley
to pay any portion of Jeff’s attorney fees, which it did, in the
amount of $2,450. The court ordered Ashley to serve 14 days
in jail for “failing to pay supervision fees” but allowed Ashley
to “purge herself of contempt by paying $1,460.00 for supervi-
sion fees as well as $2,450.00 for attorney’s fees.” The court
then reduced the amount of attorney fees Jeff was ordered to
pay by the amounts Ashley was ordered to pay for the supervi-
sion and attorney fees, which totaled $3,910. With that reduc-
tion, the court concluded that “[b]ecause the amount owed by
the mother has been allocated to reduce the amount the father
is required to pay, the Court finds that the mother has purged
herself of contempt and will not have to serve the fourteen (14)
days in jail.”
Ashley did not cross-appeal the district court’s order find-
ing her in contempt for failing to pay $1,460 in supervised
parenting time fees, nor did she cross-appeal the $2,450 in
attorney fees awarded to Jeff due to her willful contempt.
This may be due in part to the fact that during Jeff’s testi-
mony, he acknowledged that since his filing of the application
for an order to show cause, Ashley had paid the supervision
fees and he was not “pursuing that issue . . . today.” Despite
that testimony, the court nevertheless found that there was no
evidence to suggest Ashley could not have paid the fees as
ordered in July 2021, and therefore, it found her to be in will-
ful contempt for failure to reimburse Jeff the $1,460 owed.
And as discussed above, reasonable attorney fees may be
taxed against a party found to be in contempt. See § 42-370.
Ashley did not ask the district court to reconsider its decision
given the testimony that she had paid the supervision fees
prior to the commencement of trial, nor did she challenge
that part of the order on appeal to this court. We therefore
need not consider whether the payment made before trial
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Cite as 32 Neb. App. 70commenced was sufficient to overcome Ashley’s prior willful
disobedience of the July 2021 temporary order.
However, as a result of our reversal of the attorney fees that
Jeff was ordered to pay, the district court’s attempt to appor-
tion the fees between the parties on a proportionate basis was
impacted, as was the portion of the order that found Ashley
had purged herself of contempt. Now knowing that Jeff can-
not be ordered to pay any portion of Ashley’s attorney fees,
the court should have the opportunity to reconsider whether
Ashley should be ordered to pay any portion of Jeff’s attorney
fees, particularly given the income disparity between the par-
ties. We therefore reverse, and remand the issue of attorney
fees to the district court with directions to vacate that portion
of its July 9, 2022, order, related to Ashley’s payment of Jeff’s
attorney fees and her purge plan, and to enter a new order
regarding the same.
VI. CONCLUSION
For the reasons set forth above, we affirm the portion of the
district court’s July 9, 2022, order finding that Ashley was not
in contempt of court regarding Jeff’s missed parenting time.
We reverse the portion of the court’s order regarding attorney
fees. We remand the cause to the district court with directions
to (1) vacate the portion of the order requiring either party
to pay attorney fees, (2) vacate Ashley’s previous purge plan
and the court’s finding that Ashley had purged herself of con-
tempt, and (3) enter a new order regarding Ashley’s responsi-
bility for Jeff’s attorney fees, if any, and modifying Ashley’s
purge plan as appropriate.
Affirmed in part, and in part reversed
and remanded with directions.