Plautz v. Plautz

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
PLAUTZ V. PLAUTZ
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
LAURA E. PLAUTZ, APPELLEE,
V.
MICHAEL R. PLAUTZ, APPELLANT, AND THEODORE WILLIAMS AND
SUSAN WILLIAMS, HUSBAND AND WIFE, INTERVENORS-APPELLEES,
AND STATE OF NEBRASKA, APPELLEE.
Filed November 6, 2018. No. A-17-1017.
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed
in part, and in part remanded with directions.
Matt Catlett, of Law Office of Matt Cattlett, for appellant.
Paul E. Galter for appellee Laura E. Plautz and intervenors-appellees.
Patrick F. Condon, Lancaster County Attorney, and Braden W. Storer for appellee State of
Nebraska.
MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
BISHOP, Judge.
I. INTRODUCTION
Michael R. Plautz and Laura E. Plautz were divorced in 2009, and Laura was awarded
custody of the parties’ two children. In 2014, Michael filed a complaint to modify the decree,
asking the court to grant him custody of the children. Laura’s parents, Theodore Williams and
Susan Williams, were allowed to intervene in the modification proceeding. The district court for
Lancaster County ultimately awarded the Williamses custody of the children, subject to Michael’s
and Laura’s parenting time. Michael appeals.
-1-
Michael also appeals from the district court’s decision to deny his motion to vacate a
previous order which found him in contempt for failure to pay child support after a contempt action
was initiated by the State.
We affirm the orders of the district court, except that we remand the issue of Michael’s
parenting time back to the district court with directions.
II. BACKGROUND
Michael and Laura were married in 1999, and are the parents of two children, Keaton (born
in 1999) and Makenna (born in 2003). Michael and Laura were divorced in 2009. In their divorce
decree, the district court approved the parties’ parenting plan agreement, which addressed custody,
parenting time, and child support. Laura was awarded legal and physical custody of the children;
Michael was awarded parenting time every other weekend, one evening each week, and 3 weeks
each summer. A holiday parenting time schedule was also established. Michael was ordered to pay
child support in the amount of $875 per month for two children, and $600 per month when there
is only one minor child.
1. MODIFICATION PROCEEDINGS
In September 2014, Michael filed a “Complaint for Modification and Equitable Credit”
and a “Motion for Temporary Custody and Temporary Suspension of Child Support; Notice of
Hearing.” He alleged in his complaint that since the entry of the decree there had been a material
and substantial change in circumstances justifying a modification of custody, parenting time, and
child support, in that Laura had “habitually failed and/or refused to provide necessary care,
subsistence, and/or supervision to the parties’ minor children” and it was therefore no longer in
the children’s best interests for Laura to have custody. He alleged that since October 2013, the
children had primarily resided with the Williamses. Michael asked the court to award him sole
legal and physical custody of the children, and order Laura to pay child support. He further alleged
that he should be given an equitable credit with respect to any child support due and payable by
him since October 2013 to the extent that the children were not in Laura’s physical care, control,
or custody. Following a hearing in October 2014, Michael’s motion for temporary relief was
overruled. In December, Laura filed an answer to Michael’s complaint, and denied the allegations
contained therein.
In August 2015, Michael again filed a motion for temporary custody and temporary
suspension of child support. In September, the Williamses filed a complaint for intervention
seeking an order granting them physical custody of the children; the district court sustained their
request to intervene as third-party defendants in October. Michael’s motion for temporary custody
and temporary suspension of child support was denied on November 4.
Trial took place on November 6 and 16, 2015, and the matter was taken under advisement.
The evidence from trial will be set forth as relevant later in this opinion. After the trial, Laura and
the Williamses filed some additional motions, which they ultimately withdrew in February 2016.
On April 28, 2016, the district court filed a “Temporary Order.” The court’s findings will
be set forth as relevant later in this opinion. The court ordered that “the legal custody of Keaton
and Makenna shall be placed, temporarily, with the Court.” Physical custody was placed with the
Williamses. Michael and Laura were awarded “temporary parenting time” with the children. The
-2-
court suspended Michael’s child support from October 1, 2014, until February 28, 2016, because
such support was received by Laura but not used for support of the children; any amounts paid
during that time were to be credited toward the amount of arrears pending as of February 28.
Michael was ordered to pay temporary child support to the Williamses beginning on March 1;
$875 per month for two children, and $575 per month for one child. The court ordered that the
matter be set “for further hearing on October 20, 2016 . . . for one-half day for further evidence
regarding this Court’s temporary order.”
After the October 2016 hearing, the district court filed an order in March 2017, which
continued the April 2016 temporary order, and set the matter for final hearing in May 2017. The
evidence from the final hearing will be set forth as relevant later in this opinion.
The district court entered an order on June 14, 2017. The court granted the legal and
physical custody of the children to the Williamses, subject to reasonable rights of parenting time
for Michael and Laura, as set forth in an attached parenting plan. Additional findings of the district
court will be set forth as necessary later in this opinion.
Michael filed a motion to alter or amend judgment. In its order filed on August 23, 2017,
the district court generally rejected Michael’s arguments with regard to custody and the
Williamses’ intervention in the action. The court did agree with Michael’s argument that a child
support worksheet should be attached to the June order. Therefore, the court ordered that the June
14 order “should be amended by attaching thereto the child support calculation worksheet attached
to the Decree of dissolution of Marriage filed by the Court on August 25, 2009,” and by adding
further language regarding child support payments, information reporting, and income
withholding.
2. CONTEMPT PROCEEDINGS
In August 2016, the State initiated contempt proceedings against Michael for failure to pay
child support. In an order filed on February 9, 2017, the district court found Michael to be in
contempt of court. He was “committed to the Lancaster County jail for 30 days,” but execution of
the sentence was suspended so long as he paid $875 per month on current child support and $50
“on arrearage” commencing March 1; if Michael complied with the payment schedule for 12
consecutive months, he would be purged of contempt and the sentence would be deemed null and
void. On June 19, Michael filed a “Motion to Vacate and Strike,” which was denied by the district
court on August 23.
3. APPEAL
Michael appeals “the final ‘Order’ filed by the Court on August 23, 2017, and other prior
orders and rulings of the Court[.]”
III. ASSIGNMENTS OF ERROR
Michael assigns 15 errors to the district court, which we have summarized and consolidated
as follows. He claims the district court erred by (1) not granting Michael’s September 2014 motion
for temporary custody of the children and suspension of child support, (2) allowing the Williamses
to intervene, (3) not permanently awarding custody to Michael in April 2016, and instead issuing
temporary orders and ordering further evidentiary hearings, (4) permanently awarding custody of
-3-
the children to the Williamses in June 2017, (5) delegating to the Williamses the court’s sole
authority and responsibility to determine the time, manner, and extent of parenting time between
Michael and the children, (6) failing to award Michael attorney’s fees, and (7) denying Michael’s
motion to vacate and strike the orders to show cause and the final contempt order.
IV. STANDARD OF REVIEW
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. Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695
(2017).
In a review de novo on the record, an appellate court reappraises the evidence as presented
by the record and reaches its own independent conclusions with respect to the matters at issue.
Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 467 (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.
Whether a party has the right to intervene in a proceeding is a question of law. Wayne L.
Ryan Revocable Trust v. Ryan, 297 Neb. 761, 901 N.W.2d 671 (2017). When reviewing questions
of law, an appellate court resolves the questions independently of the lower court’s conclusions.
Hotz v. Hotz, supra.
A trial court’s decision awarding or denying attorney fees will be upheld on appeal absent
an abuse of discretion. McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018).
V. ANALYSIS
Initially, we note that Keaton’s custody is no longer at issue as he is now 19 years old. Only
the custody of Makenna, now 15 years old, is at issue on appeal.
1. SEPTEMBER 2014 MOTION FOR TEMPORARY CUSTODY
AND SUSPENSION OF CHILD SUPPORT
Michael claims the district court erred by denying his September 2014 motion for
temporary custody and temporary suspension of child support. However, the issue of temporary
custody (and thus, temporary suspension of child support) became moot upon the entry of the
district court’s order determining permanent custody; there is no relief that can be afforded to
Michael with regard to his request for temporary relief. See State on behalf of Pathammavong v.
Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004) (issue of temporary order only relevant from
time it was ordered until it was replaced by order determining permanent custody; therefore, issues
pertaining to temporary order are moot and need not be addressed on appeal). A moot case is one
which seeks to determine a question which does not rest upon existing facts or rights, in which the
issues presented are no longer alive. Id. See, also, Coleman v. Kahler, 17 Neb. Ct. App. 518, 766
N.W.2d 142 (2009) (issue of whether order denying request for temporary custody was proper was
relevant only from time it was entered until it was replaced by order determining children’s
permanent custody; any issue relating to temporary order is moot).
-4-
2. ALLOWING WILLIAMSES TO INTERVENE
Michael argues the district court erred in adding the Williamses as parties to the action.
Intervention is governed by statute. Neb. Rev. Stat. § 25-328 (Reissue 2016) states:
Any person who has or claims an interest in the matter in litigation, in the success
of either of the parties to an action, or against both, in any action pending or to be brought
in any of the courts of the State of Nebraska, may become a party to an action between any
other persons or corporations, either by joining the plaintiff in claiming what is sought by
the complaint, or by uniting with the defendants in resisting the claim of the plaintiff, or
by demanding anything adversely to both the plaintiff and defendant, either before or after
issue has been joined in the action, and before the trial commences.
Neb. Rev. Stat. § 25-330 (Reissue 2016) states:
The intervention shall be by complaint, which shall set forth the facts on which the
intervention rests, and all the pleadings therein shall be governed by the same rules as other
pleadings provided for in Chapter 25. If such complaint is filed during term, the court shall
direct the time in which answers thereto shall be filed.
After Michael filed for temporary custody and temporary suspension of child support for a
second time on August 31, 2015, the Williamses filed a complaint for intervention on September
23. The Williamses alleged that they were the grandparents of Keaton and Makenna, the minor
children of the parties; the children had resided with and been supported by the Williamses
continuously since early February 2014; the children were doing well under their care and it was
in the best interests of the children that their physical custody be placed with the Williamses; the
physical custody of the children was at issue and, for that reason, the court should permit the
Williamses to become parties to the action so that appropriate orders could be entered in the best
interests of the minor children; Laura placed the children with the Williamses and wished that the
physical custody of the children be placed with the Williamses.
In an order filed on October 19, 2015, the district court stated that on October 16, the matter
“came to be heard upon the Motion of [Laura] for an order permitting [the Williamses] to intervene
as parties to this pending action.” (Laura’s motion does not appear in our record.) The order states,
“Prior hereto, [the Williamses] filed a Complaint to Intervene and on October 2, 2015, this Court
entered an Order giving [Michael] seven days to answer said Complaint. No answer or other
pleading has been filed by [Michael].” (Emphasis supplied.) The court found “that such Motion
should be granted and an Order should be entered authorizing and permitting [the Williamses] to
intervene as Third-Party Defendants.” The court, “Ordered, Adjudged and Decreed” “that the
Motion of Plaintiff is hereby sustained and [the Williamses] are hereby added as Third-Party
Defendants herein.”
Michael claims that the only relief requested by the Williamses was that they be made
parties to the action. He further claims that the district judge’s statement that “on October 2, 2015,
this Court entered an Order giving [Michael] seven days to answer said Complaint,” was “plainly
untrue” because at no time did the district judge file an order directing the time in which to answer
the complaint for intervention. Brief for appellant at 35. Michael asserts:
-5-
Because the district court did not file a signed, written order directing the time in
which answers to the [Williamses’] complaint for intervention be filed, and because the
only relief requested in the complaint was that they be made parties to the actions, and
because they did not plead a cause of action or an actual interest in the action, seek relief
sought by either Michael or Laura, or resist relief sought by either Michael or Laura, or
relief adverse to Michael and Laura, the district judge erred by “adding” [the Williamses]
as “Third-Party Defendants.”
Id. at 35-36.
Michael’s claims regarding the content of the Williamses’ complaint for intervention is
contradicted by the actual language of the complaint. First, in their complaint for intervention, the
Williamses did not merely request to be made parties to the action, they specifically sought
physical custody of Keaton and Makenna. Second, the Williamses pled an actual interest in the
action (custody of their grandchildren), aligned with the relief sought by Laura (they alleged she
“wishes the physical custody of the children be placed with the Williamses”), and resisted relief
sought by Michael (that he should get custody). They prayed for “orders concerning the custody
and support of [the] minor children as it relates to Intervenors,” and for such other relief the court
“may [d]eem just and equitable.” Accordingly, the Williamses complaint for intervention was
sufficiently stated.
With regard to the district court’s reference to an October 2, 2015, order giving Michael 7
days to answer the Williamses complaint, we do not have such an order in the record before us.
Nor does the record contain any other order in which the district court directed the time in which
answers to the complaint for intervention were to be filed. Nevertheless, after receiving the district
court’s October 19 order permitting the Williamses to intervene, Michael did not file an objection
or otherwise apprise the court of its alleged erroneous reference to an October 2 order setting his
answer deadline. Nor did Michael raise the issue of the Williamses’ intervention when his
modification action proceeded to trial in November. Prior to beginning trial, the district court
specifically stated that the court was taking up “two matters, one is a complaint for modification
. . . and then I have a complaint for intervention filed by the [Williamses].” Michael’s attorney
immediately thereafter indicated he was ready to proceed; no objection was made to proceeding
on the Williamses’ complaint for intervention.
In fact, Michael did not raise any issue with regard to the Williamses’ intervention until he
filed his motion to alter or amend in August 2017--nearly 2 years after Michael became aware of
the permitted intervention. The time for Michael to complain has long passed. See In re Estate of
Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015) (litigant’s failure to make timely objection waives
right to assert prejudicial error on appeal). See, also, In re Interest of Samantha L. & Jasmine L.,
286 Neb. 778, 787, 839 N.W.2d 265, 272 (2013) (“[o]ne cannot silently tolerate error, gamble on
a favorable result, and then complain that one guessed wrong”).
Finally, Michael asserts that “the action had already been pending for approximately a year
at the time the complaint for intervention was filed, which represents an inexcusable delay.” Brief
for appellant at 36. Despite his general claim of delay, Michael does not suggest that he was
prejudiced in any way by the filing of the complaint for intervention 1 year after the modification
-6-
action was filed. And, as noted above, Michael did not make a timely objection to the Williamses
intervening in the modification action.
We find no error in the district court’s decision to allow the Williamses to intervene in the
modification proceeding.
3. CUSTODY
(a) Testimony From Trial in November 2015
(i) Mother’s Testimony
At trial, Laura conceded that she should not have custody of the children “at this time.”
Laura testified that she had been “dealing with an alcohol issue for a couple of years, over a couple
of years.” She had been in treatment more than once, and had “relapsed a couple of times” after
treatment. Laura said that Michael did not exercise his parenting time on a regular basis. She asked
that her parents, the Williamses, be allowed to have custody of Keaton and Makenna and said it
would be in the children’s best interests to “reside with my parents.”
(ii) Grandparents’ Testimony
Susan testified that the children have resided with her and her husband since January 2014.
Laura did not live in the Williamses’ home “at the present time,” but had lived with them off and
on since January 2014. When Laura was not residing with the Williamses, she was at her
boyfriend’s house or in residential treatment. Susan asked the court to award her and her husband
custody of the children because “they’ve been with us for two years, and there hasn’t been a father
there.”
Susan testified that after the children began living with her and her husband, Michael first
saw the children on Father’s Day 2014 (June). From January to June 2014 he did not visit the
children or call Susan and request time to visit the children (on cross-examination, Susan stated
that from January to June she had no communication with Michael and did not let him know that
the children were living with her). From June until mid-October, Michael did exercise his
parenting time of every other weekend and Wednesdays. After the temporary custody hearing in
mid-October (following which the district court overruled Michael’s request for temporary custody
and temporary suspension of child support) until the first week of April 2015, Michael did not
have any parenting time with the children. Michael exercised two weekends of parenting time in
April. Then, he exercised no parenting time until September--when he saw the children twice, one
dinner and then one weekend. Michael did not request parenting time in October or November.
Susan testified that the children were doing very well. They had perfect attendance;
Makenna got almost all A’s, “[a] couple of B pluses maybe.” When Susan was asked if she
believed it was in the children’s best interests to continue to reside with her and her husband, at
least until such time as Laura can rehabilitate herself, Susan said, “Yes, I do.” Theodore agreed
with Susan’s testimony. He testified that he would like the children to remain with him and Susan,
and believed that would be in the children’s best interests.
(iii) Father’s Testimony
Michael believed it was in the children’s best interests that he be awarded their custody.
Michael acknowledged that he had not always exercised his full allotment of parenting time;
-7-
although he said the children did live with him at different periods of time prior to 2014. Michael’s
girlfriend also testified that the children lived with them for periods of time between 2009 and
2014 (although she defined “lived with” as “more than a Wednesday -- every Wednesday or every
other weekend.”) Michael testified that during the 2012-13 school year, Keaton “might have lived
with me for a good six months, maybe even nine months of that year.” Michael said that Makenna
lived with him from “probably September or October” to about Christmastime 2012. Contrary to
Michael’s testimony, Laura testified there was “a brief period” in 2012 when Keaton stayed with
Michael, but “there was never an extended period of time that Makenna ever lived or Keaton lived
with [Michael]”; Keaton stayed with Michael “[a]t best maybe four to six weeks.” Michael testified
that after Keaton went back to live with Laura, Michael “just kind of, you know, stopped getting
phone calls answered and I just didn’t hear from . . . either of them.”
Michael testified that he went to jail for 23 days in the fall of 2013 for not paying child
support. He exercised his 2013 Christmas break parenting time. From January to April 2014, he
had parenting time with his children “[m]aybe once or twice.” “I was trying . . . but . . . I wasn’t
getting phone calls back so, yeah, eventually, that just dwindles . . . there was no need to pick them
up when I hadn’t talked to them because I don’t know, you know, that they are going to be there
or what they are doing at that time, . . . if they are playing sports.” Although Michael previously
testified that it was not until December 2014 that he became aware that his children were living
with the Williamses, he later testified that, “[I]t might have been” April, when he and his girlfriend
went to the Williamses’ home because he was suspicious that the children had not been living with
Laura. (Susan denied that Michael and his girlfriend came to her house in April 2014; she says
they came in 2013, and that he was aware at that time that the children were at the Williamses’
house sporadically during the end of 2013.) Michael said the Williamses explained to him that the
children had been living with them for some time. Although Susan testified that the children had
been living there since January 2014, Michael was “pretty sure that they had been living there
since [Laura] went to treatment in October of 2013 when [he] was in jail.” According to Michael,
after speaking to the Williamses in April 2014, the three of them agreed that Michael would see
the children every weekend. That arrangement “went really good . . . all summer long.” Sometimes
the children were even at Michael’s house during the week. (According to Susan, from June to
mid-October 2014, Michael exercised parenting time every other weekend and on Wednesdays.)
In the fall of 2014, Michael became aware of an incident where Laura was hospitalized--she
had fallen in the tub and hit her head, she was unconscious and bleeding from the brain. Michael
said he talked to Susan about Laura’s hospitalization and learned that Laura went to treatment after
that. Michael was told by Susan that “we were going . . . back to our divorce decree thing and we’d
be doing every other weekend.” That is when Michael filed his complaint to modify, and asked for
custody on an interim basis. After the court denied his request for interim custody (order entered
October 27, 2014), it was Michael’s understanding that Laura “got cleaned up,” “she wasn’t
drinking and she was over at [the Williamses] with my kids now living over there.”
Michael conceded that beginning in the fall of 2014, he did not exercise his allotment of
parenting time stating, “I was pretty hurt and very, very upset.” “Not at the kids. It was just, you
know, I deserved a little more respect than that[.]” Michael originally said that since then, he had
not had either of the children, other than one dinner and one weekend in September 2015, but later,
when called as a rebuttal witness on his own behalf, his counsel asked if he “had a visitation with
-8-
the kids in April of 2015,” and Michael responded, “Yeah” (although Susan testified that Michael
had two weekends of parenting time in April 2015). When asked why he had not exercised any
parenting time since September, Michael responded, “[J]ust been pretty busy . . . working but
mainly . . . I don’t feel that it’s always my responsibility to have to call . . . Sue . . . to ask for
visitation for my children. . . . [I]n my opinion, I shouldn’t even have to ask anybody because they
are my kids and they should be with me . . . already.”
Michael stated his primary mode of communication with Keaton is through Keaton’s cell
phone. Michael said in the past 12 months, he had telephoned his children on birthdays, holidays,
“multiple times during the summer,” and “just randomly.” Michael called Keaton’s cell phone
number on his birthday and on Makenna’s birthday (because she did not have a cell phone), but
did not get to speak with either of them; he left messages, but did not receive a message or call
back.
Michael testified that if he got custody of the children, they would continue to go to their
same school at Norris. Michael’s girlfriend worked “[p]robably within five to seven miles” of
Norris, and she would be able to help transport Makenna to school---the school bus does not go to
Michael’s home in Lincoln, Nebraska.
Michael asked the court to consider giving him a credit with respect to child support he
paid during periods of time that the children were not actually residing with Laura.
(iv) In Camera Testimony
Keaton, age 16 at the time, and Makenna, age 12 at the time, testified in chambers with the
judge and the attorneys present; a record was made and sealed. The court informed the children
that their testimony would not be shared with their parents, and the court directed the attorneys to
not discuss the children’s testimony with their clients. Therefore, we will not recount it here. We
have read and considered such testimony in our de novo review of the record.
(b) Motions Following November Trial
On November 23, 2015, Laura and the Williamses filed a “Motion to Withdraw Rest and
Present Additional Evidence.” After a hearing in December, the court sustained the motion and
scheduled the matter for an “additional hearing” in January 2016, “for a one hour trial”; but no
further evidence was ever presented at that time. On February 18, Laura and the Williamses filed
a “Motion to Submit Pending Matter for Determination by the Court.” In their motion, they alleged
that in January, “instead of presenting additional evidence” they “moved this Court” for an order
permitting them to file additional pleadings. Laura and the Williamses stated that they “hereby
withdraw” the November 2015 motion to present additional evidence and “hereby further
withdraw the motion to withhold judgment and to permit [them] to file additional pleadings,” and
“hereby move this Court to make a determination based on evidence presented at the hearings held
November 6 and 16, 2015.”
Although Michael claims the district court erred in granting the joint motion of Laura and
the Williamses to withdraw their rest and present additional evidence, we need not address that
issue, because Laura and the Williamses subsequently withdrew their motion to withdraw their
rest and present additional evidence, and they asked the court to “make a determination based on
-9-
evidence presented at the hearings held November 6 and 16, 2015.” Accordingly, Michael’s claim
on this issue is moot.
(c) Temporary Orders and Further Evidentiary Hearings
(i) April 2016 Temporary Order
On April 28, 2016, the district court filed a “Temporary Order.” It noted that at trial Laura
conceded that she was not a fit and proper person to have physical custody of the children, and
that in Laura’s opinion, the bests interests of the children would be served by placing the children
with the Williamses. The order stated, in part:
The credible evidence at trial indicates that [Michael] failed to exercise any of his
parenting time from January 2014 to June 2014. Parenting time occurred from June 2014
to September 2014. From October 2014 to April 2015, [Michael] did not see his children.
There were approximately two weekends of parenting time in April. [Michael] exercised
no parenting time between May 2015 [and] September 2015. There was no parenting time
with the children exercised from October 2015 to the time of trial. Accordingly, during that
period of time, the children did not see their father in 16 out of those 23 months. [Michael]
did not provide any credible explanation as to the reason he did not see his children during
those 16 months.
Since the children have been residing with [the Williamses], they have done well
in school and have been involved in several extra-curricular activities. The children seem
healthy, happy and well[-]adjusted at this stage of their lives.
In deciding issues of physical and legal custody of these children, the Court needs
to determine what is the best interest of Keaton and [Makenna][.]
The court acknowledged the parental preference doctrine, and that “‘a court may not, in
derogation of the superior right of a biological . . . parent, grant child custody to one who is not a
biological . . . parent unless the biological . . . parent is unfit to have child custody or has legally
lost the parental superior right to a child.’” But the court stated, “The record in this case shows
that the majority of the parenting time that [Michael] chose not to exercise occurred during his
pending complaint for modification of custody.” “This evidence indicates to the Court that
[Michael] appears to have little interest in being regularly involved in his children’s lives.” The
court ordered “that the legal custody of Keaton and Makenna shall be placed, temporarily, with
the Court,” and that “[p]hysical custody of the children shall be placed with the [Williamses].”
Michael was awarded temporary parenting time with the children every other weekend from
Thursday at 4:30 p.m. until the following Monday at 8:30 a.m. Laura was also awarded temporary
parenting time. The court’s order concluded, “The matter shall be set for further hearing on
October 20, 2016 . . . for one-half day for further evidence regarding this Court’s temporary order.”
(ii) October 2016 Hearing and Subsequent Order
In an order filed on March 16, 2017, the district court stated, “This matter came before the
Court for trial on October 20, 2016[,] . . . pursuant to the temporary order entered by this Court on
April 28, 2016.” (Our record does not contain a bill of exceptions from the October 20 hearing
because neither party requested that one be prepared for this appeal.) The district court noted in its
- 10 -
March 2017 order that Michael did not appear at the October 2016 hearing, but counsel appeared
on his behalf. “Evidence was presented and the matter was taken under advisement.” According
to the district court’s order, Susan testified at the hearing, “over defendant’s objection,” that
Michael had not seen his children in a little over 1 year, had not requested to see his children, and
had paid no child support. The order stated,
Because of the Court’s obvious concern regarding [Michael’s] apparent lack of
interest in being regularly involved in his children’s lives, the temporary order increased
[Michael’s] parenting time to every other weekend from Thursday at 4:30 p.m. to Monday
at 8:30 a.m. [Michael] has obviously not taken advantage of this increase in parenting time
or in any parenting time for that matter.
In considering the modification of a child custody order, the moving party has the
burden of proving that a material change in circumstance has occurred and that changing
custody is in the children’s best interest. It is in relation to this latter requirement that has
caused this Court to have sincere concerns as to whether granting the custody of the
children to [Michael] would be in their best interest.
(Emphasis supplied.) The court noted the parental preference doctrine, but said:
This matter is, in the mind of the Court, at a tipping point. Over the past 4 years,
[Michael] has exercised parenting time for only 9 of those months with no parenting time
or contact with his children in over 18 months. The Court obviously recognizes the rights
of a fit, proper and suitable parent, but has come to the conclusion that further evidence is
required in order to make a determination that [Michael] has met that standard and that it
would be in the best interests of his children to be removed from the stable and loving
environment they have lived in for the past three years.
The court therefore “ordered that the temporary order will remain in effect. The matter will be set
for final hearing on May 3, 2017.” In an “Order re Docket Entry” filed on May 1, a different district
court judge (now in charge of the case due to the first judge’s recusal) set the further evidentiary
hearing for May 15.
(iii) May 2017 Hearing
At the further evidentiary hearing on May 15, 2017, Michael did not appear. Michael’s
counsel did appear and objected to the proceeding, claiming that the court was not empowered to
conduct the hearing because there had already been a trial. Counsel said, “Both parties have
actually stipulated on the record that the matter be submitted for a final judgment so that there can
be an appeal”; “but there has not been a final judgment.” Counsel stated that Neb. Const. art. I,
§ 3, required that “courts be opened and every person shall have a remedy by due course of law
and justice administered without denial or delay.” (We note this actually comes from Neb. Const.
art. I, § 13). Counsel then argued that because trial was held in November 2015, and no final
judgment had been entered, “justice has not been administered without denial or delay.” He
asserted “the court should enter final judgment based upon the evidence presented at the trial in
November 2015,” and he believed the May 2017 proceedings were “a nullity.” The district court
- 11 -
responded by saying, “We’ve talked about this. The parties have submitted some letter briefs to
me on authority.” The court continued:
This is a court of equity. I think it would be proper for me to take additional evidence in
this case. I think it proper for me, after reviewing the submissions of the attorneys regarding
the various issues and whether I can proceed, I just think it’s proper to proceed, take
evidence today, and then do my best to get a final order out so that the parties can proceed
on that final order.
The hearing then continued.
The district court once again heard testimony from the children in chambers. The court
assured the children that their testimony would not be shared with their parents or grandparents,
and the attorneys were ordered not to disclose such testimony to their clients. Therefore, we will
not recount it here, other than to note that their testimony primarily related to when they had contact
with their parents. We have read and considered their entire testimony in our de novo review of
the record.
Susan testified in open court that Michael had not seen the children since September 2015.
She did acknowledge that in April 2017, Michael had contacted her about seeing the children, but
that on the advice of counsel she refused him; she acknowledged that her counsel advised her that
Michael had “meth” charges pending and that they wanted Michael to apply to the court so that
there could be a showing that he was not under the influence of meth when he had the children.
(d) June 2017 Order
The district court filed its order on June 14, 2017. The court noted that Laura had “admitted
and continues to acknowledge that she is not ready or able to have the care, custody, and control
of the minor children.” The court found that Laura “is not fit at this time to have the children under
her direct control and supervision.” The court also found that Michael “has had a poor history of
exercising his parenting time or actually being meaningfully involved in his children’s lives for a
rather significant time.” Michael “has not engaged in the performance of his reasonable parental
obligations (aside from paying some child support) and there is nothing in the record to suggest
that circumstance will abate.” “There is little evidence that [Michael] has made honest attempts to
contact the children or even be peripherally involved in their lives.” The court found “the record
supports the claim of the [Williamses] (and [Laura]) that [Michael] is unfit to exercise his superior
rights over the [Williamses] as to the care, custody, and control of the minor children.” The court
said, “Even assuming that the [Williamses] did not meet their burden to show [Michael] unfit, the
prayer of the [Williamses] should have been granted” because it was in the children’s best interests
to remain in the care, custody, and control of the Williamses. The court granted the legal and
physical custody of the children to the Williamses, subject to reasonable rights of parenting time
for Laura and Michael, as set forth in an attached parenting plan.
On June 19, 2017, Michael filed a motion to alter or amend the order filed June 14. In an
order filed on August 23, the district court generally rejected Michael’s arguments with regard to
custody and the Williamses’ intervention in the action. The court did agree with Michael’s
argument that a child support worksheet should be attached to the June order, and amended the
June 14 order accordingly.
- 12 -
(e) Did District Court Err by Holding
Further Evidentiary Hearings?
Michael argues that the district court erred in not permanently awarding him the sole legal
and physical custody of the children in April 2016, when the court instead placed temporary legal
custody with the court and physical custody with the Williamses, and ordered more evidence to be
given. He claims “[t]his was not merely erroneous, it was conscience-shocking.” Brief for
appellant at 42. Michael contends that the district court “had no authority to sua sponte enter any
‘temporary’ orders or order more evidence to be given after a trial on the merits was held [in
November 2015] and the parties had rested their cases and the matter had been submitted.” Id. at
43 (emphasis omitted).
Michael cites to Neb. Const. art. I, § 13, for the proposition that every person shall “have
a remedy by due course of law and justice administered without denial or delay,” and claims he
did not receive such by way of the April 2016 “Temporary Order.” Brief for appellant at 44.
However, even though Michael claims the April order violated his constitutional rights, he must
not have thought his rights were so substantially affected as to constitute a final order pursuant to
Neb. Rev. Stat. § 25-1902 (Reissue 2016), because he did not appeal from that order. (We note
that Michael did file an application for leave to commence an original mandamus action against
the trial judge with the Nebraska Supreme Court in July 2016--claiming the trial judge “refused to
render judgment” and instead, “purported to enter a ‘Temporary Order’” and “mandated that a
‘further hearing’” be held--but Michael’s application was denied.) Nor did he appeal from the
March 2017 order which continued custody with the Williamses.
At the May 2017 hearing, Michael challenged the court’s authority to have an additional
hearing, and the district court stated, “This is a court of equity.” In his brief on appeal, Michael
cites to no authority for his assertion that the court could not enter a temporary custody order until
it could obtain further evidence. But see Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002)
(a trial court may properly take temporary legal custody of a child when it is unsure either parent
is fit). See, also, State ex rel. Reitz v. Ringer, 244 Neb. 976, 510 N.W.2d 294 (1994), overruled in
part on other grounds, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999). In State ex rel.
Reitz v. Ringer, a contempt and modification of custody action, the district court took temporary
custody of the child, but placed physical custody with the child’s paternal grandparents, so that the
court could further investigate the issue of permanent custody; there were questions about the
father’s fitness and the court knew the mother was going to be put in jail for contempt.
In both its April 2016 and March 2017 orders, the district court acknowledged the parental
preference doctrine, and the notion that a fit, proper, and suitable parent has superior rights to
custody of his or her child. But in both orders, the court was concerned about Michael’s lack of
interest in being involved in his children’s lives. The court recounted the evidence that from
January 2014 to the time of trial in November 2015, Michael had not seen his children during 16
out of those 23 months, and that a majority of the parenting time that he chose not to exercise
occurred during his complaint for modification. And the evidence at the October 2016 hearing was
that Michael had not seen, or requested to see, the children in over a year. In both the April 2016
and March 2017 orders, the court granted Michael increased parenting time (compared to the
parenting time awarded to him in the 2009 divorce decree), apparently in an effort to see how
- 13 -
Michael would respond to the additional time. The court obviously had concerns about Michael’s
fitness and the children’s best interests. Thus, under the circumstances of this case, the district
court did not abuse its discretion when it did not award permanent custody to Michael in April
2016 and instead issued temporary orders and conducted further evidentiary hearings. The
additional time favored Michael, in that he could have demonstrated to the court that he was ready
and capable of being a full-time parent. Instead, he barely kept in touch with his children.
Additionally, Michael’s rights to due process and fundamental fairness were not violated.
He was given notice and an opportunity to be heard. He could have presented additional evidence
at the October 2016 or May 2017 hearings, but chose not to do so.
(f) Did District Court Err by Awarding Permanent
Custody to Williamses?
Michael argues the district court erred in permanently awarding the Williamses legal and
physical custody of the children in the June 2017 order.
Ordinarily, custody of a minor child will not be modified 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. Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695 (2017). In this case,
there had been a material change in circumstances showing that the custodial parent was unfit;
Laura conceded that she was unfit. But the best interests of the child are the court’s paramount
concern. Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002).
In determining a child’s best interests under Neb. Rev. Stat. § 42-364 (Reissue 2016),
courts may consider factors such as general considerations of moral fitness of the child’s parents,
including 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 the
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; parental capacity to provide physical care and
satisfy educational needs of the child; and many other factors relevant to the general health,
welfare, and well-being of the child. Schmeidler v. Schmeidler, 25 Neb. Ct. App. 802, 912 N.W.2d
278 (2018). Additionally,
Under the parental preference principle, a parent’s natural right to the custody of his or her
children trumps the interest of strangers to the parent-child relationship and the preferences
of the child. Although the question present in every child custody case is the best interests
of the child, a court cannot overlook or disregard that the best interests standard is subject
to the overriding recognition that the relationship between parent and child is
constitutionally protected. The U.S. Supreme Court has held that due process of law
requires a parent to be granted a hearing on his or her fitness as a parent before being
deprived of custody. . . .
Parental unfitness means a personal deficiency or incapacity which has prevented,
or will probably prevent, performance of a reasonable parental obligation in child rearing
and which has caused, or probably will result in, detriment to a child’s well-being. Absent
circumstances which terminate a parent’s constitutionally protected right to care for his or
her child, due regard for that right requires that a biological or adoptive parent be
presumptively regarded as the proper guardian for his or her child. The courts may not
- 14 -
properly deprive a parent of the custody of a minor child unless it is affirmatively shown
that such parent is unfit to perform the duties imposed by the relationship or has forfeited
that right.
Farnsworth v. Farnsworth, 276 Neb. 653, 657-58, 756 N.W.2d 522, 525-26 (2008). Clear and
convincing evidence of substantial, continuous, and repeated neglect of a child must be shown in
order to overcome the parent’s superior right. Id.
In the instant case the district court clearly and repeatedly considered the parental
preference doctrine, and Michael’s superior right to Makenna (remembering that she is the only
child still at issue in this appeal). Michael claims the district court judge “demonstrated a clear bias
and failure to remain impartial” at the November 16, 2015, hearing because the judge asked
Michael why he thought it was in the best interests of the children to be placed with him rather
than with their grandparents. Brief for appellant at 36. Michael claims the question was “entirely
irrelevant and argumentative, as Michael was the natural parent.” Id. We disagree with Michael’s
characterization of the court’s inquiry. A child’s best interests is the court’s paramount concern,
and a parent is often asked to explain why awarding custody to him or her would be in a child’s
best interests; we find no merit to this argument.
As to the June 2017 order, the district court found that Michael had a “poor history of
exercising his parenting time or actually being meaningfully involved in [Makenna’s] life for a
significant period of time,” and found that “[t]here does not appear to be any evidence to suggest
that [Michael] is ready to assume the parenting role of [Makenna] at this time.” The district court
ultimately determined that Michael was “unfit to exercise his superior rights over the [Williamses]
as to the care, custody, and control” of Makenna. We agree.
The evidence at trial was that Michael either exercised parenting time “once or twice” from
January to April 2014 (his testimony) or did not exercise parenting time from January to June
(Susan’s testimony). There is no dispute that parenting time occurred from June to September
(according to Michael, this took place every weekend, but according to Susan, this took place
every other weekend and on Wednesdays). However, from October 2014 to April 2015, Michael
did not see Makenna. There were approximately two weekends of parenting time in April. Michael
exercised no parenting time between May and September. In September, he had one dinner and
one weekend of parenting time with Makenna. Michael exercised no parenting time with Makenna
from October 2015 to the time of the May 2017 hearing (although he made one request for
parenting time in April 2017, which was denied by Susan on advice of counsel because Michael
purportedly had “meth” charges pending; the record reveals that the first judge in this case had to
recuse himself in April because Michael applied to “drug court”).
On our de novo review of the record, we find Michael’s extremely poor record of exercising
his parenting time is clear and convincing evidence of substantial, continuous, and repeated neglect
of Makenna by Michael which overcomes Michael’s superior right to custody.
Having found Michael to be unfit, we find the district court did not abuse its discretion in
awarding legal and physical custody of Makenna to the Williamses; such an award was in
Makenna’s best interests. Accordingly, we also find that the district court did not abuse its
discretion in overruling Michael’s motion to alter or amend judgment with regard to custody.
- 15 -
(g) Delegation of Authority Regarding Parenting Time
Although the district court awarded custody of Makenna to the Williamses, it granted
Michael reasonable rights of parenting time as set forth in an attached parenting plan. That
parenting plan states:
The natural parents may have parenting time with the minor children during the following
times: each weekend, each holiday (including all secular and religious holidays), and each
summer, provided that the natural parent provides reasonable notice and advance request
to the [Williamses] and the [Williamses] agree with the request. If there is not agreement,
the parents shall follow the provisions of remediation below.
(Emphasis supplied.) Michael argues the district court erred by delegating to the Williamses the
court’s sole authority and responsibility to determine the time, manner, and extent of parenting
time between Michael and Makenna. We note that although the court provided general timeframes
for parenting time, it left the final authority to the Williamses to approve any requested parenting
time by either parent. It is true that this would not be consistent with the legal proposition that it is
the sole responsibility of the district court to determine questions of parenting time regarding the
child according to his or her best interests, including the time, manner, and extent of parenting
time; this independent responsibility cannot be delegated. See Schmeidler v. Schmeidler, 25 Neb.
App. 802, 912 N.W.2d 278 (2018). See, also, Barth v. Barth, 22 Neb. Ct. App. 241, 851 N.W.2d 104
(2014) (setting time, manner, and extent of visitation is solely duty of court). Although this case
involves parents who have been found unfit, we nevertheless conclude the existing authority does
not permit the district court to delegate to the Williamses the final decision regarding parenting
time. Therefore, we remand the issue of Michael’s parenting time back to the district court with
directions to set such parenting time in accordance with the authority cited.
4. ATTORNEY FEES
Michael argues that the district court erred in not awarding him attorney fees. Customarily,
attorney fees are awarded only to prevailing parties or assessed against those who file frivolous
suits. Schriner v. Schriner, 25 Neb. Ct. App. 165, 903 N.W.2d 691 (2017). Given Michael’s overall
lack of success in these proceedings, the district court did not abuse its discretion when it did not
award attorney fees.
5. CONTEMPT ACTION
(a) Contempt Proceedings
In August 2016, the State filed against Michael a “Motion for an Order to Show Cause and
to Appear.” According to the State, Michael was delinquent in his child support in an amount
greater or equal to the support due and payable for a one month period of time. In September, the
“District Court Referee” entered an order to show cause and appear, ordering Michael to appear
on October 6 and show cause why he should not be found guilty and sentenced for contempt for
willfully and contumaciously having failed and refused to pay court-ordered child support.
In an order filed on October 6, 2016, the district court referee ordered Michael to “appear
for further proceedings [on December 12] to review the child support payments on the Order to
- 16 -
Show Cause.” In an order filed on December 13, the district court referee ordered Michael to
“appear for further proceedings [on February 6, 2017] to review the child support payments on the
Order to Show Cause.” On February 7, 2017, the district court for Lancaster County issued a bench
warrant for Michael, for failing to appear on February 6 to answer on the order to show cause.
Michael was arrested on February 9. That same day, the district court appointed an attorney to
represent Michael; the appointed attorney was not the attorney who represented Michael in his
ongoing modification action.
In an order filed on February 9, 2017, the district court stated that a hearing was held on
the September 7, 2016, order to show cause, Michael was represented by counsel, and he admitted
to being in willful contempt of the child support order. The court found Michael to be in contempt
of court, and also found that he had the ability to comply with the purge order. Michael was
“committed to the Lancaster County jail for 30 days,” but execution of the sentence was suspended
so long as he paid $875 per month on current child support and $50 “on arrearage” commencing
March 1; if Michael complied with the payment schedule for 12 consecutive months, he would be
purged of contempt and the sentence would be deemed null and void. No appeal was taken from
that order.
Approximately four months later, on June 19, 2017, Michael filed a “Motion to Vacate and
Strike.” He claimed the order to show cause and appear filed on September 7, 2016, the order to
appear filed on October 6, the order to appear filed on December 13, and the order filed on
February 9, 2017, were “void and should be vacated and stricken from the Court’s file.” As to the
orders filed on September 7, October 6, and December 13, Michael claimed they are void “because
they were not entered by the Court, but rather by the Court’s referee, who had no authority to issue
them.” And “[b]ecause it was a factual and legal impossibility” for Michael to comply with those
orders, the court’s bench warrant filed on February 7, 2017, “was necessarily without basis in fact
or law.” He then claimed that because the bench warrant “was without basis in fact or law, the
proceedings further to the ‘Bench Warrant’ were a nullity.”
In the order filed on August 23, 2017, the district court denied Michael’s motion to vacate
and strike.
(b) Michael’s Claim on Appeal
Although jurisdiction was not raised by either party, before deciding the merits of an
appeal, an appellate court must determine if it has jurisdiction. Jesse B. v. Tylee H., 293 Neb. 973,
883 N.W.2d 1 (2016). Michael did not appeal within 30 days of the February 9, 2017, order which
found him in contempt and sentenced him to jail, with the ability to suspend the sentence so long
as he complied with the purge order. See, McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d
515 (2018) (order of contempt is final, appealable order); Tilson v. Tilson, 299 Neb. 64, 907
N.W.2d 31 (2018) (to vest appellate court with jurisdiction, notice of appeal must be filed within
30 days of entry of final order).
However, Michael argues the district court erred in denying his motion to vacate and strike
the orders to show cause and appear and the final contempt order, because the orders to show cause
and appear, upon which the bench warrant and order of contempt were based, were void.
A void order is a nullity which cannot constitute a judgment or final order that confers
appellate jurisdiction on this court. But an appellate court has the power to determine
- 17 -
whether it lacks jurisdiction over an appeal because the lower court lacked jurisdiction to
enter the order; to vacate a void order; and, if necessary, to remand the cause with
appropriate directions.
In re Interest of Trey H., 281 Neb. 760, 766-67, 798 N.W.2d 607, 613 (2011).
Michael contends the September 7, 2016 “Order to Show Cause and Appear,” and the
October 6 and December 13 “Order[s] to Appear” “are void because they were not made by
anybody with authority to make them.” Brief for appellant at 47. He contends the orders were
made by a district court referee who was not appointed by the district court as required by Neb.
Rev. Stat. § 43-1609(2) (Supp. 2017).
Section 43-1609 states, in relevant part, that child support referees “shall be appointed
when necessary by the district courts . . . to meet the requirements of federal law relating to
expediting the establishment, modification, enforcement, and collection of child, spousal, or
medical support[.]” Child support referees “shall be appointed by order of the district court[.]”
§ 43-1609(2). Neb. Rev. Stat. § 43-1611 (Supp. 2017) also provides:
A district court . . . may by rule or order refer or assign any and all matters regarding the
establishment, modification, enforcement, and collection of child, spousal, or medical
support, . . . to a child support referee for findings and recommendations.
(Emphasis supplied.)
The district court for Lancaster County is in the Third Judicial District, and that judicial
district has in fact adopted a rule for this purpose. The Rules of Dist. Ct. of Third Jud. Dist. 3-11
(rev. 2003) states:
A. Intent. . . . It is determined that the appointment of a child support referee is
necessary to aid the court in meeting the case progression standards established by
Nebraska Supreme Court rule and federal law.
B. Appointment. Each referee shall be appointed by order of the judges of the court
and shall be an attorney in good standing admitted to the practice of law in the State of
Nebraska. . . .
C. Duties. The referee shall hear matters pertaining to (1) the establishment,
modification, enforcement and collection of child/spousal support; (2) paternity; and (3)
all other matters permitted by law and assigned by the court. The referee shall have the
power to summon and enforce the attendance of parties and witnesses, administer all
necessary oaths, supervise pretrial preparation pursuant to the rules of discovery, grant
continuances and adjournments, recommend the appointment of counsel for indigent
parties and carry out any other duties permitted by law and assigned by the district
court. . . .
(Emphasis supplied.)
A similar grant of authority is set forth in the Nebraska Supreme Court’s child support
referee rules found in Neb. Ct. R. §§ 4-101 to 4-111 (rev. 2008). Despite the plain language
effectuating a general appointment of a child support referee contained in the Third Judicial
District’s rule set forth above, Michael nevertheless suggests that a referee must be appointed on
- 18 -
a case-by-case basis. However, as noted by the State, “There is no such requirement in Nebraska
Law.” Brief for appellee State at 5-6. As the State aptly points out,
[T]he totality of . . . § 43-1609 is about the appointment of a child support referee by the
district court to “meet the requirement of federal law relating to expediting the
establishment, modification, enforcement, and collection of child, spousal, or medical
support and protection orders,” as well as the qualifications of a child support referee, the
oath of the child support referee, removal of the child support referee, and contracting with
attorneys to perform the duties of the referee in certain situation. . . . § 43-1609(1)-(4). . . .
[T]he plain language indicates that this statute is about the appointment of a specific person
to serve in the capacity of child support referee in order to handle certain types of cases on
behalf of the district court.
Brief for appellee State at 6. “To read this statute to require a case-by-case appointment of the
referee to individual cases would defeat the stated purpose of the referee to expedite the
enforcement of child support orders.” Id.
Finally, Michael claims that “[b]ecause a modification action was pending at all times
when the referee purported to act, and because non-child support issues were raised, Local Rule
3-9.I could not have operated as an appointment of a referee.” Brief for appellant at 47. Rules of
Dist. Ct. of Third Jud. Dist. 3-9 (rev. 2013), regarding domestic case progression, states in relevant
part:
A. Application. This Rule 3-9 shall apply to all cases classified by the State Court
Administrator as a domestic case, including, without limitation, divorce; paternity;
grandparent visitation; any matter within the court’s jurisdiction which involves child
custody, parenting time, or support; or any matter governed by the Parenting Act.
....
I. Modification Cases. . . . Trials, hearings and pretrial matters on contested child
support issues in which a child support order already exists shall be conducted by the
district court referee. This does not apply to motions, applications or petitions in which
non-child support issues are also raised. All scheduling matters of cases referred to the
referee shall be presented to the referee. Matters assigned to the referee upon which the
parties have reached written agreement may be submitted directly to the district court judge
to whom the case is assigned, accompanied by an appropriate order.
(Emphasis supplied.)
However, the State’s contempt action against Michael was a separate action from the
modification action between Michael, Laura, and the Williamses; and in the contempt action, the
only issue was child support. Therefore, the italicized language relied on by Michael is
inapplicable. Accordingly, it is the first sentence of subsection I which applies, and because a child
support order already existed, the child support contempt action “shall be conducted by the district
court referee.”
Pursuant to the rules and statutory authority set forth above, the district court referee in this
case had the authority to issue the September 7, 2016 “Order to Show Cause and Appear,” and the
October 6 and December 13 “Order[s] to Appear,” thus they are not void. Michael’s argument that
- 19 -
the “‘Bench Warrant’ filed on February 7, 2017, was without basis in fact or law’” and that “the
proceedings further to the ‘Bench Warrant’ were a nullity,” brief for appellant at 48, were premised
on his assertion that the earlier orders were void. Having found the earlier orders were not void,
his argument necessarily fails. Accordingly, the district court did not err by denying Michael’s
motion to vacate and strike.
Because the orders in the contempt action were not void or a nullity, Michael had to appeal
within 30 days of the February 9, 2017, order which found him in contempt. Michael did not appeal
within 30 days, thus we are without jurisdiction to address any other issues regarding the contempt
proceedings.
VI. CONCLUSION
We remand the issue of Michael’s parenting time back to the district court with directions
to set such parenting time in accordance with this opinion. We affirm the remainder of the district
court’s orders at issue.
AFFIRMED IN PART, AND IN PART
REMANDED WITH DIRECTIONS.
- 20 -