Vyhlidal v. Vyhlidal

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/13/2022 01:06 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 495Eric J. Vyhlidal, appellant, v.
Nessa A. Vyhlidal, appellee.
___ N.W.2d ___
Filed April 28, 2022. No. S-21-736.
1. Divorce: Judgments: Appeal and Error. The meaning of a divorce
decree presents a question of law, in connection with which an appellate
court reaches a conclusion independent of the determination reached by
the court below.
2. Contempt: Appeal and Error. In a civil contempt proceeding where
a party seeks remedial relief for an alleged violation of a court order,
an appellate court employs a three-part standard of review in which (1)
the trial court’s resolution of issues of law is reviewed de novo, (2) the
trial court’s factual findings are reviewed for clear error, and (3) the trial
court’s determinations of whether a party is in contempt and of the sanc-
tion to be imposed are reviewed for abuse of discretion.
3. Divorce: Property Settlement Agreements: Final Orders. A decree is
a judgment, and once a decree for dissolution becomes final, its mean-
ing, including a settlement agreement incorporated therein, is deter-
mined as a matter of law from the four corners of the decree itself.
4. Divorce: Property Settlement Agreements: Parent and Child:
Judgments. A judgment including both a settlement agreement and a
parenting plan is construed as an integrated judgment.
5. Divorce: Judgments: Intent. The meaning of a decree must be deter-
mined from all parts thereof, read in its entirety, and must be construed
as a whole so as to give effect to every word and part, if possible, and
bring all of its parts into harmony as far as this can be done by fair and
reasonable interpretation.
6. ____: ____: ____. Effect must be given to every part of a decree, includ-
ing such effect and consequences that follow the necessary legal impli-
cation of its terms, although not expressed.
7. Child Custody. A determination of legal custody is a mandatory and
indispensable part of a parenting plan pursuant to Neb. Rev. Stat.
§ 43-2929 (Reissue 2016).
- 496 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 4958. ____. Under the Parenting Act, joint legal custody involves mutual
authority and responsibility of the parents while legal custody does not.
9. Child Custody: Words and Phrases. The definitions in the Parenting
Act of “legal custody” and “joint legal custody” are terms of art having
clear and unambiguous meaning.
10. ____: ____. In the absence of an explicit contrary definition in a parent-
ing plan, the term “joint legal custody” must be construed according to
its statutory definition in the Parenting Act.
11. Child Custody. In a child custody case, the decision of where a child
will reside is a fundamental decision affecting the child’s welfare.
12. ____. In a child custody case, the decision of where a child will attend
school is a fundamental decision.
13. Courts. A maxim sanctioned by centuries of experience is that igno-
rance of the law is no excuse.
14. Courts: Presumptions. Everyone is presumed to know the law.
15. Contempt: Words and Phrases. Willful disobedience is an essential
element of contempt; “willful” means the violation was committed
intentionally, with knowledge that the act violated the court order.
16. Contempt: Proof: Presumptions. Outside of statutory procedures
imposing a different standard or an evidentiary presumption, the com-
plainant must prove all elements of contempt by clear and convinc-
ing evidence.
17. Courts: Appeal and Error. A district court by definition abuses its dis-
cretion when it makes an error of law.
18. Contempt. Civil contempt proceedings are instituted to preserve and
enforce the rights of private parties to a suit when a party fails to com-
ply with a court order made for the benefit of the opposing party.
19. Contempt: Sentences. A civil sanction is coercive and remedial; the
contemnors carry the keys of their jail cells in their own pockets,
because the sentence is conditioned upon continued noncompliance and
is subject to mitigation through compliance.
20. Contempt: Costs: Attorney Fees. Costs, including reasonable attorney
fees, can be awarded in a contempt proceeding when there has been a
finding of contempt.
Appeal from the District Court for Garfield County: Mark
D. Kozisek, Judge. Reversed and remanded with directions.
Loralea L. Frank and Nathan P. Husak, of Bruner, Frank,
Schumacher & Husak, L.L.C., for appellant.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 495Michele J. Romero and Vikki S. Stamm, of Stamm, Romero
& Associates, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
An integrated marital dissolution decree, settlement agree-
ment, and parenting plan granted joint legal and physical
custody of a minor child to Eric J. Vyhlidal and Nessa A.
Vyhlidal. Over Eric’s objection and without obtaining a modi-
fication of the decree, Nessa moved the child to another school
in a distant town. The district court declined Eric’s request for
a contempt citation. On appeal, we reversed the denial and
remanded the cause for an evidentiary hearing. 1
After issuing the citation and holding an evidentiary hear-
ing on remand, the court below found no violation or willful-
ness. Eric again appeals. We conclude that the district court
erred in its interpretation of the decree and its assessment of
Nessa’s actions. We reverse the order and remand the cause
with directions and for further proceedings consistent with
this opinion.
II. BACKGROUND
Our background section consists of four parts. We begin by
reciting pertinent conclusions from our first opinion. Second,
we summarize the essential facts elicited at the evidentiary
hearing. We then recall specific provisions of the integrated
decree. Finally, we summarize the district court’s decision
and reasoning.
1. Prior Appeal
In the parties’ prior appeal, we determined that the dis-
trict court abused its discretion in denying Eric’s motion for
1
See Vyhlidal v. Vyhlidal, 309 Neb. 376, 960 N.W.2d 309 (2021).
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VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 495an order to show cause. 2 After citing the definition in the
Parenting Act 3 of “[j]oint legal custody,” 4 we stated:
Here, the parenting plan, developed by the parties and
approved by the court, clearly indicates that the parties
were to share joint legal custody of the minor child, and
neither party was granted exclusive final decision­making
authority. As a result, it is undisputed that the parties
share mutual authority for making fundamental decisions
regarding the minor child’s welfare, including choices
regarding education, such as where the minor child will
attend school. 5
We also noted that we had classified the decision of where a
child will attend school as a fundamental decision. 6
We concluded that the denial of Eric’s motion for an order
to show cause was an abuse of discretion that unfairly deprived
Eric of his rights as a joint legal custodian of the minor child.
We stated: “Whether Nessa’s unilateral decision to change the
child’s school is a willful violation of the decree . . . is a mat-
ter to be considered at an evidentiary hearing where Eric can
offer evidence to demonstrate both that a violation of the court
order occurred and that the violation was willful.” 7 Thus, we
reversed, and remanded for further proceedings.
2. Evidentiary Hearing
After spreading our mandate, the district court set the mat-
ter for a hearing. It ordered Nessa to show cause why she
should not be held in contempt of court for willful violation of
the decree.
2
See id.3
Neb. Rev. Stat. §§ 43-2920 to 43-2943 (Reissue 2016 & Cum. Supp.
2020).
4
See § 43-2922(11).
5
Vyhlidal v. Vyhlidal, supra note 1, 309 Neb. at 382, 960 N.W.2d at 314.
6
See id.
7
Id. at 383, 960 N.W.2d at 314.
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VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 495After the hearing, the court characterized the facts as “simple
and relatively undisputed.” In late June 2020, Nessa informed
Eric that she intended to move the child’s residence and change
the child’s school. Eric objected. Nessa proceeded with mov-
ing and enrolling the child in a new school. She moved from
Burwell, Nebraska, to Springfield, Nebraska, on August 8. She
moved the child there on August 12. Two days later, she then
enrolled the child in the Springfield school. Nessa admitted
that she did so without Eric’s permission.
The parties attended mediation. Nessa testified that she
“submitted paperwork for Central Mediation” in June 2020.
The parties’ mediation session occurred, using video conferenc-
ing, on September 14. They failed to reach an agreement.
At the hearing, Nessa argued that she complied with the par-
enting plan. Her position rested on two facts: She notified Eric
that she planned to change the child’s residence prior to doing
so and attempted to reach an agreement through mediation.
3. Integrated Decree, Settlement
Agreement, and Parenting Plan
A June 2018 decree dissolved the parties’ marriage. The
decree awarded them “joint legal and physical custody” of
their child, born in 2013. The decree further ordered the
parties to abide by the terms of their mediated parenting
plan that was attached to a marital settlement agreement. The
marital settlement agreement stated that the parties agreed to
“share legal and joint physical custody . . . as outlined in the
Parenting Plan.”
The settlement agreement contained an integration clause.
Paragraph 12 stated, in pertinent part, that it “constitute[d] a
complete agreement and any and all other agreements, whether
written or oral, which precede the date as set forth below are
hereinafter superseded and are null and void.”
The parenting plan contained several provisions directly
applicable to this appeal, which focuses on legal custody.
Those provisions are as follows:
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 495B. CUSTODY/RESIDENCE: The parents agree to
Joint Legal Custody (decision-making).
....
K. DECISION MAKING: The parents will discuss
matters concerning the child, such as health and medical,
school related problems and decisions, and any behavioral
or disciplinary issues that could impact both households.
....
P. CHANGE OF CHILD’S RESIDENCE: Both par-
ents shall provide notification to the other if s/he plans
to change the residence of the child. Neither parent may
move the child outside of the [S]tate of Nebraska without
permission of the Court. If intending to move that parent
must first:
•  Make written application to the Court at least 45 days
in advance, including the proposed changes to the parent-
ing time schedule and costs of transportation[;]
•  Give notice of the application and hearing to the other
parent; and,
•  Establish that the move is in the best interest of
the child.
....
R. REMEDIATION: The parents agree that should a
future dispute arise concerning their child or this agree-
ment which they are unable to resolve, they will first
attempt to mediate a solution through mediation prior to
filing legal action.
S. ATTORNEY REVIEW: We both acknowledge that
this parenting plan accurately reflects our agreements
reached on May 16, 2018 and represent we each have had
ample opportunity to discuss this parenting plan with our
attorneys. Each parent certifies they understand the terms
contained herein.
In this appeal, the parties dispute the nature of their legal
custody of their child—particularly, decisionmaking regarding
the child’s school and residence. Physical custody, parenting
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VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 495time, and the change of a parent’s residence are largely irrele­
vant here.
But for the sake of completeness, we quote the parenting
plan provisions directly bearing on physical custody, parent-
ing time, and parent’s residence, as follows:
B. CUSTODY/RESIDENCE: . . . .
They also agree that Mom and Dad will have Joint
Physical Custody.
C. REGULAR TIME-SHARING:
[The child] will be with Mom during the school year,
except for one night each week from after school until
8 p.m. Dad will give Mom 2 weeks’ notice of what night
he will exercise that parenting time.
The parents agree to alternate weekends, with Dad
having [the child] two weekends in a row from Friday
at 6 p.m. until Sunday at 6 p.m., then Mom having [the
child] the third weekend. On the Sundays when Mom
works at night, Dad will have [the child] until he drops
him off for school on Monday morning. The parents shall
follow a 2 weekend with dad/1 weekend with mom rota-
tion. This weekend rotation shall resume the first Friday
after school resumes with dad commencing the weekend
rotation annually.
The parents agree that they will work together to adjust
[the child’s] schedule if their time with [the child] inter-
feres with the work schedule.
Neither parent may make plans for the child during the
other parent’s parenting time without talking with that
parent in advance and obtaining that parent’s consent.
....
O. CHANGE OF PARENT’S RESIDENCE: In the
event that one of the parents plan to change his/her
residence, that parent shall notify the other parent of
such change of residence. If one of the parents is living
or moving to an undisclosed location because of safety
concerns, the address or return address shall only include
the county and state.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 4954. District Court’s Decision and Rationale
The district court entered an order finding that Nessa did
not violate the parenting plan. It therefore vacated the order to
show cause.
The court’s rationale relied upon its interpretation of the
decree, which focused on the parenting plan. The court rea-
soned: “One must look to the Parenting Plan itself and not
statutory definitions or labels . . . . For it is the violation of the
Parenting Plan at issue, not the violation of a statute or legal
definition found in a statute.”
The district court further stated: “[T]he parties did not
define ‘joint legal custody’ in the same manner as the Court.
The parties chose the words, ‘Joint Legal Custody (decision-
making)’. They then chose to describe ‘Decision Making’
as parents discussing matters concerning [the child] such as
school related decisions.”
The parties’ description of “joint legal custody,” the court
reasoned, required discussion between the parties and was
silent on mutual authority and the parties’ responsibility for
making mutual fundamental decisions regarding the child’s
welfare. The court, essentially adopting Nessa’s argument,
determined that Eric failed to establish Nessa violated the par-
enting plan—reasoning that Nessa told Eric she was moving,
that they discussed the move, and that they attempted to medi-
ate a solution.
The district court, for the sake of completeness, discussed
the willful aspect of contempt. The court determined that the
violation had to be committed with subjective knowledge and
that Nessa did not willfully violate the parenting plan.
Eric filed a timely appeal, which we moved to our docket. 8
III. ASSIGNMENTS OF ERROR
Eric assigns that the court abused its discretion by failing
to hold Nessa in contempt for three reasons: (1) The court’s
interpretation of the parenting plan was erroneous, (2) the
8
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 495court failed to find Nessa violated the parenting plan, and (3)
the court abused its discretion by not finding Nessa’s violation
was willful.
IV. STANDARD OF REVIEW
[1] The meaning of a divorce decree presents a question
of law, in connection with which an appellate court reaches
a conclusion independent of the determination reached by the
court below. 9
[2] In a civil contempt proceeding where a party seeks reme-
dial relief for an alleged violation of a court order, an appellate
court employs a three-part standard of review in which (1) the
trial court’s resolution of issues of law is reviewed de novo, (2)
the trial court’s factual findings are reviewed for clear error,
and (3) the trial court’s determinations of whether a party is in
contempt and of the sanction to be imposed are reviewed for
abuse of discretion. 10
V. ANALYSIS
Eric contends that the district court abused its discretion
when it failed to hold Nessa in contempt for moving and
enrolling the child into a new school despite his having joint
legal custody and objecting to the change. We start by deter-
mining what the decree required. Then, we apply that interpre-
tation to the violations asserted by Eric in determining whether
Nessa violated the decree and, if so, whether the violation
was willful.
1. Interpretation of Decree
[3-6] Rules for interpreting a decree are well known.
A decree is a judgment, and once a decree for dissolution
becomes final, its meaning, including a settlement agreement
incorporated therein, is determined as a matter of law from the
9
Johnson v. Johnson, 308 Neb. 623, 956 N.W.2d 261 (2021).
10
Becher v. Becher, ante p. 1, 970 N.W.2d 472 (2022).
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311 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 495four corners of the decree itself. 11 To the extent that we have
not said so directly, we iterate that the same principle applies
to a decree which includes both a settlement agreement and a
parenting plan—it is construed as an integrated judgment. The
meaning of a decree must be determined from all parts thereof,
read in its entirety, and must be construed as a whole so as
to give effect to every word and part, if possible, and bring
all of its parts into harmony as far as this can be done by fair
and reasonable interpretation. 12 Effect must be given to every
part thereof, including such effect and consequences that fol-
low the necessary legal implication of its terms, although not
expressed. 13 Because the parties attached a parenting plan to
their marital settlement agreement which the court incorporated
into the decree, we consider the documents together in deter-
mining the meaning of the decree.
[7] The contents that must be included in a parenting plan
are set forth in statute. 14 Pertinent to this appeal, a parenting
plan shall include a determination regarding legal custody of
the child. 15 In other words, a determination of legal custody
is a mandatory and indispensable part of a parenting plan
pur­suant to § 43-2929. 16 Legal custody focuses entirely on
decision­making authority. 17
The Parenting Act defines the terms “legal custody” and
“joint legal custody,” and those terms have the same definitions
for purposes of domestic relations actions. 18 “Legal custody
11
Johnson v. Johnson, supra note 9.
12
Id.13
Bayne v. Bayne, 302 Neb. 858, 925 N.W.2d 687 (2019).
14
See § 43-2929.
15
§ 43-2929(1)(b)(i).
16
See id.
17
See State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d
692 (2019).
18
See Neb. Rev. Stat. §§ 42-347 (Reissue 2016) and 43-2922.
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VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 495means the authority and responsibility for making fundamen-
tal decisions regarding the child’s welfare, including choices
regarding education and health.” 19 On the other hand, “[j]oint
legal custody means mutual authority and responsibility of
the parents for making mutual fundamental decisions regard-
ing the child’s welfare, including choices regarding education
and health.” 20
[8] The difference between the two concepts is obvious.
Under the Parenting Act, joint legal custody involves “mutual
authority and responsibility of the parents” 21 while legal cus-
tody does not. 22
[9,10] The definition of “joint legal custody” contained in
the Parenting Act provides a baseline for what the term means
within the context of child custody. In contract cases, we have
said, “‘Trade terms, legal terms of art, numbers, common words
of accepted usage and terms of a similar nature should be inter-
preted in accord with their specialized or accepted usage unless
such an interpretation would produce irrational results or the
contract documents are internally inconsistent.’” 23 In probate
matters, we have applied a similar rule: Generally, a term of
art used in reference to a devise or other testamentary disposi-
tion or provision has a technical but clear meaning. 24 We now
hold that the definitions in the Parenting Act of “legal custody”
and “joint legal custody” are terms of art having clear and
unambiguous meaning. In the absence of an explicit contrary
definition in a parenting plan, the term “joint legal custody”
must be construed according to its statutory definition in the
Parenting Act.
19
§ 43-2922(13). See, also, § 42-347(6).
20
§ 43-2922(11). See, also, § 42-347(4).
21
§ 43-2922(11) (emphasis supplied).
22
§ 43-2922(11) and (13).
23
Kalkowski v. Nebraska Nat. Trails Museum Found., 290 Neb. 798, 804-05,
862 N.W.2d 294, 301 (2015).
24
In re Estate of Hannan, 246 Neb. 828, 523 N.W.2d 672 (1994).
- 506 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 495With that understanding, we turn to the integrated decree
here. The decree awarded the parties “joint legal and physical
custody” of their child. The marital settlement agreement stated
that the parties agreed to “share legal and joint physical cus-
tody . . . as outlined in the Parenting Plan.” The parenting plan
stated that the parties agreed to “Joint Legal Custody (decision-
making).” None of those documents specifically defined “joint
legal custody.”
Reading the document as a whole, mutuality runs through-
out. Time-sharing provisions provide that “[t]he parents agree
that they will work together to adjust [the child’s] schedule if
their time with [the child] interferes with the work schedule”
and that “[n]either parent may make plans for the child during
the other parent’s parenting time without talking with that par-
ent in advance and obtaining that parent’s consent.” The para-
graph on summer break requires the parties to “work together
to develop a schedule for the summer.” Temporary changes can
be made to the plan “as long as they both agree to it”; perma-
nent changes can be initiated “by mutual, written agreement of
the parents.” Finally, the remediation provision states that if the
parties are unable to resolve a dispute concerning the child or
the parenting plan, “they will first attempt to mediate a solution
through mediation prior to filing legal action.”
Narrowing our focus to particular provisions of the par-
enting plan, we start with the paragraph entitled “Decision
Making.” That paragraph stated that the parties “will discuss
matters concerning the child, such as health and medical,
school related problems and decisions, and any behavioral or
disciplinary issues that could impact both households.” But
that paragraph does not remove the mutuality element and
does not confer final decisionmaking authority on either party.
In other words, there is nothing in that paragraph inconsistent
with the statutory definition of “joint legal custody.” Reading
the decree in that fashion effectively reads the words “joint
legal custody” out of the parenting plan—a reading which
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VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 495would violate the principle that effect should be given to all
words and phrases in the judgment.
[11,12] Under the decree at issue, changes in the child’s resi-
dence or school enrollment are matters governed by the provi-
sion for joint legal custody. In a child custody case, the decision
of where a child will reside is a fundamental decision affecting
the child’s welfare. If the decision could be made unilaterally,
that would need to be clearly articulated in the plan. It was not.
Likewise, the decision of where a child will attend school is a
fundamental decision. 25 Nothing in the decree or incorporated
plan provides that this decision can be made by one parent. As
a fundamental decision and in accordance with the meaning of
joint legal custody, it required mutual agreement.
The district court erred in determining what the parenting
plan required. The court’s reasoning that the parties need only
discuss matters because the arrangement was “silent on mutual
authority” is contrary to the meaning of “joint legal cus-
tody.” And as we noted above, neither the parenting plan nor
the decree conferred final decisionmaking authority on either
party. We conclude the district court erred in interpreting the
plan to require discussion only.
[13,14] Nor are we persuaded that there is anything unfair
or unreasonable in holding the parties to the terms of art they
chose in their parenting plan. A maxim sanctioned by centu-
ries of experience is that ignorance of the law is no excuse. 26
Everyone is presumed to know the law. 27 Both maxims apply
to Nessa, particularly in light of paragraph S of the parenting
plan, where the parties “represent[ed]” they “each [had] had
ample opportunity to discuss this parenting plan with [their]
attorneys” and “certifie[d] they underst[ood] the terms con-
tained” therein.
25
See Vyhlidal v. Vyhlidal, supra note 1.
26
See State ex rel. Nebraska State Bar Assn. v. Holscher, 193 Neb. 729, 230
N.W.2d 75 (1975).
27
Haman v. Marsh, 237 Neb. 699, 467 N.W.2d 836 (1991).
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VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 4952. Contempt
Having established the meaning of the decree as a matter
of law, we move to the district court’s determinations pertain-
ing to the contempt proceeding before it. Under our three-part
standard of review, we review the district court’s resolution of
issues of law de novo, its factual findings for clear error, and
its determinations of whether a party is in contempt and of the
sanction to be imposed for an abuse of discretion.
(a) Violation of Parenting Plan
Having settled that joint legal custody required mutual
decisionmaking, whether Nessa violated the parenting plan is
easily answered. Nessa complied in part by discussing with
Eric her plan to move the child’s residence to a distant town
and enroll him in a different school district and by attempt-
ing to mediate a solution. But Nessa knew that Eric opposed
those actions and that there was not mutual agreement, and
she moved the child to the other town and enrolled him in the
other school anyway. The “Remediation” provision of the plan
hints at the next step when parties cannot agree: “filing legal
action.” The district court’s erroneous interpretation of the
parenting plan’s requirements led it to find that Eric failed to
establish a violation of the parenting plan by Nessa. In doing
so, the court abused its discretion.
(b) Willfulness of Violation
[15,16] To be in contempt, Nessa’s violation of the parent-
ing plan had to be willful. Willful disobedience is an essential
element of contempt; “willful” means the violation was com-
mitted intentionally, with knowledge that the act violated the
court order. 28 Outside of statutory procedures imposing a dif-
ferent standard or an evidentiary presumption, the complainant
must prove all elements of contempt by clear and convinc-
ing evidence. 29
28
Becher v. Becher, supra note 10.
29
Id.
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VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 495Eric proved willfulness by clear and convincing evidence.
The evidence established that he informed Nessa of his objec-
tion to moving the child’s residence and school. While Nessa
claims that she believed the parenting plan required discussion
only, our first opinion demonstrated that any such subjective
belief was erroneous. While Nessa did not move the child until
after the district court denied Eric’s motion for an order to
show cause and motion for writ of assistance, she did not seek
modification or other relief through the court.
[17] We conclude the district court abused its discretion
when it found that Nessa was not in contempt. A district court
by definition abuses its discretion when it makes an error
of law. 30
(c) Remedial Relief and Coercive Sanctions
[18-20] Because Nessa willfully violated the decree, ­coercive
and remedial sanctions are appropriate. Civil contempt pro-
ceedings are instituted to preserve and enforce the rights of pri-
vate parties to a suit when a party fails to comply with a court
order made for the benefit of the opposing party. 31 A civil sanc-
tion is coercive and remedial; the contemnors carry the keys
of their jail cells in their own pockets, because the sentence is
conditioned upon continued noncompliance and is subject to
mitigation through compliance. 32 Moreover, costs, including
reasonable attorney fees, can be awarded in a ­contempt pro-
ceeding when there has been a finding of contempt. 33
Here, Eric is entitled to obtain Nessa’s compliance with the
decree. This requires the immediate return of the child to
Burwell and that school district. Eric is also entitled to his
reasonable attorney fees. Nothing in this opinion should be
30
Stone Land & Livestock Co. v. HBE, 309 Neb. 970, 962 N.W.2d 903(2021).
31
Becher v. Becher, supra note 10.
32
Id.
33
Id.
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VYHLIDAL v. VYHLIDAL
Cite as 311 Neb. 495construed to preclude the district court on remand from consid-
ering modification of the decree, whether upon the complaint
of either party 34 or as part of a contempt proceeding. 35
VI. CONCLUSION
We reverse the order of the district court, which declined to
find that Nessa violated the decree or that she did so willfully.
We remand the cause with directions to find Nessa in willful
contempt, to order the child’s immediate return to Burwell resi-
dency and school enrollment, to award Eric reasonable attorney
fees, to craft such coercive sanctions as may be appropriate to
achieve Nessa’s compliance with the decree, and for further
proceedings in conformity with this opinion.
Reversed and remanded with directions.
34
See Neb. Rev. Stat. § 42-364(6) (Cum. Supp. 2020).
35
See Neb. Rev. Stat. § 42-364.15 (Reissue 2016).