Kitsmiller v. Kitsmiller

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/06/2022 09:04 AM CST
- 473 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473Annette Marie Kitsmiller, appellee, v.
Mark Joseph Kitsmiller, appellant.
___ N.W.2d ___
Filed December 6, 2022. No. A-21-951.
1. Juvenile Courts: Parental Rights: Appeal and Error. Termination of
parental rights cases raised under Neb. Rev. Stat. § 42-364(5) (Cum.
Supp. 2020) are reviewed de novo on the record, and an appellate court
is required to reach a conclusion independent of the juvenile court’s
findings.
2. Parental Rights: Proof. Terminating parental rights requires both clear
and convincing evidence that one of the statutory grounds enumerated in
Neb. Rev. Stat. § 43-292 (Reissue 2016) exists and clear and convincing
evidence that termination is in the best interests of the children.
3. Parental Rights: Words and Phrases. Termination of parental rights is
a final and complete severance of the child from the parent and removes
the entire bundle of parental rights. With such severe and final conse-
quences, parental rights should be terminated only in the absence of any
reasonable alternative and as the last resort.
4. Modification of Decree: Child Custody: Visitation: Child Support:
Appeal and Error. Modification of a judgment or decree relating to
child custody, visitation, or support is a matter entrusted to the discre-
tion of the trial court, whose order is reviewed de novo on the record,
and will be affirmed absent an abuse of discretion.
5. Modification of Decree: Child Custody: Proof. Prior to modification
of a child custody order, two steps of proof must be taken by the party
seeking modification. First, the party seeking modification must show
by a preponderance of the evidence a material change in circumstances
that has occurred after the entry of the previous custody order and that
affects the best interests of the child. Second, the party seeking modi-
fication must prove that changing the child’s custody is in the child’s
best interests.
- 474 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 4736. Modification of Decree: Words and Phrases. Generally speaking, a
material change in circumstances is the occurrence of something which,
had it been known to the dissolution court at the time of the initial
decree, would have persuaded the court to decree differently.
7. Trial: Guardians Ad Litem. The weight given to the opinion of a
guardian ad litem is in the trial court’s discretion.
8. 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.
9. Contempt. When a party to an action fails to comply with a court order
made for the benefit of the opposing party, such act is ordinarily civil
contempt, which requires willful disobedience as an essential element.
10. Contempt: Proof. Outside of statutory procedures imposing a different
standard, it is the complainant’s burden to prove civil contempt by clear
and convincing evidence.
12. Attorney Fees: Appeal and Error. A trial court’s determination of
requests for sanctions and for attorney fees are both reviewed for an
abuse of discretion.
Appeal from the Separate Juvenile Court of Lancaster
County: Shellie D. Sabata, Judge. Affirmed.
Angelica W. McClure of Kotik & McClure Law, for
appellant.
Stefanie S. Flodman, of Johnson, Flodman, Guenzel &
Widger, for appellee.
Pirtle, Chief Judge, and Bishop and Arterburn, Judges.
Pirtle, Chief Judge.
I. INTRODUCTION
Mark Joseph Kitsmiller appeals from the order of the sepa-
rate juvenile court of Lancaster County dismissing his com-
plaint for modification of a divorce decree and for termination
of parental rights with regard to his ex-wife, Annette Marie
Kitsmiller. The juvenile court also overruled Mark’s motions
- 475 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473for sanctions and attorney fees and vacated any pending orders
to show cause, which actions Mark also challenges on appeal.
For the reasons that follow, we affirm.
II. BACKGROUND
1. Factual Background
Mark and Annette were married in September 2012. One
child, A.K., was born of this marriage in 2013. Annette has a
long history of mental health challenges and substance use dat-
ing back to at least 2002 as documented in prior juvenile court
cases. Those circumstances ultimately led to the severance,
either by relinquishment or termination, of Annette’s parental
rights to six of her children between 2008 and 2011. Thus,
by the time Annette’s seventh child, A.K., was born in 2013,
Annette had a long history of struggling as a parent. However,
by all accounts, the 4 years immediately after A.K.’s birth were
a reprieve from the conditions that had presented such diffi-
culty in the years prior.
Mark’s mother, Barbara Kitsmiller, testified that between
2013 and 2017, she was very close to Annette and thought she
was “wonderful.” Barbara added that for the first 4 years of
A.K.’s life, “I didn’t have any questions about Annette’s par-
enting.” Mark testified that Annette’s mental health was stable
during those 4 years, and he agreed with his mother’s testi-
mony that Annette was “wonderful” when her mental health
was stable. However, a series of tragic events in 2017 resulted
in the destabilization of Annette’s mental health and a return to
old patterns of behavior.
Annette testified that in June 2016, she started working for
an organization that helps families navigate the juvenile court
process. By the end of 2016, Annette was having difficulties
in that position due to her prior experiences with the juvenile
court system. Barbara recalled an incident around that time
when Annette came into the house and started crying because
“it was so hard for her to be in the same courtrooms where
her other children had been removed.” Thereafter, two close
- 476 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473friends of Annette’s died within a matter of days, and in July
2017, she had a miscarriage. It was after this series of unfor-
tunate events that both Mark and Barbara noticed a significant
decline in Annette’s mental health.
The parties separated in 2018, entering into an equal “seven
on/seven off” custody arrangement during the pendency of the
dissolution proceedings. A decree of dissolution was entered
in August 2019, under which the parties were awarded joint
legal custody of A.K., and Mark was awarded sole physi-
cal custody subject to the terms of a parenting plan entered
along with the decree. Annette was also ordered to pay Mark
$50 per month in child support. The parenting plan speci-
fied that Annette would have only supervised visitation with
A.K. until such time as Annette could demonstrate compli-
ance with a detailed list of “safety provisions.” The safety
provisions, summarized, required that Annette adequately
address her mental health, obtain and maintain suitable hous-
ing and adequate income, and avoid outstanding warrants or
law violations beyond minor traffic violations. The plan fur-
ther required that Annette grant Mark access to information
regarding her mental health treatment and submit to random
drug testing at Mark’s request.
At no point in time since the entry of the 2019 decree had
Annette demonstrated compliance with all of the safety provi-
sions. With regard to her mental health, Annette attended peri-
odic psychiatry appointments between 2019 and 2021. Despite
some gradual improvement, Annette’s psychiatrist consist­
ently reported that Annette continued to experience “moder-
ate” symptoms of “Generalized Anxiety Disorder and Major
Depression,” noting after each appointment that Annette’s
clinical condition remained unchanged. Mark testified that he
had not noticed any improvement in Annette’s mental health
since her initial decline in 2017, although, neither had he
noticed any further decline. After trial, the court found that the
evidence established Annette was not appropriately managing
her mental health needs at that time.
- 477 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473With regard to Mark’s access to information, Annette tes-
tified that she did submit a release of information for Mark
to communicate with her psychiatrist. Mark testified that he
had never received any information from Annette’s mental
health providers; however, he also testified that he was not
aware whether any such release of information had been
submitted. The court noted that “[i]t appears [Mark] may not
have requested releases [of information] from [Annette].”
Similarly, Mark testified that he had never requested that
Annette submit to drug testing; however, Annette admitted
to using both marijuana and methamphetamine in the months
prior to trial.
With regard to housing, Annette testified that she initially
resided in the parties’ marital home until January 2020, when
she moved into a recreational vehicle that she parked at vari-
ous locations. Annette was incarcerated at the time of trial, but
she testified that the recreational vehicle remained her primary
residence, and it was then parked on her cousin’s land. With
regard to income, Annette had not obtained stable employment
since leaving her position with the family advocacy organiza-
tion, and her only source of income was from brief stints driv-
ing for ride-sharing services. At the time of trial, Annette owed
over $1,000 in delinquent child support obligations.
Annette generally failed to abstain from criminal conduct
and had active outstanding warrants at various times since the
2019 decree. Mark detailed one incident in May 2021, in which
Annette unexpectedly showed up at his home for a visit with
A.K. There was no visit planned for that day, and no agreed
upon supervisor was present. Mark and Barbara asked Annette
to leave, but she refused, and an altercation ensued. A neigh-
bor intervened, and law enforcement was called to the scene.
Mark and Barbara both sustained minor injuries, and Annette
was arrested and later charged with assault and trespassing.
A.K. was initially present for the incident, but Mark’s father
promptly took A.K. to the garage while the foregoing events
played out.
- 478 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473Because Annette never managed to demonstrate compli-
ance with the safety provisions, she never progressed beyond
supervised visitation with A.K. Under the parenting plan, the
parties were to agree on a supervisor or a professional super-
visor could be hired at Annette’s expense. Mark testified that
he initially agreed to personally supervise visits, which would
occur two to three times a week through the end of 2019 and
into 2020. However, Mark refused to continue supervising vis-
its after an incident on July 31, 2020, in which Annette drove
off with A.K. and maintained physical custody of her for 10
days without supervision. A.K. was not returned to Mark’s
custody until August 10, when Annette was arrested on an
outstanding warrant for charges related to a dangerous dog.
Although Mark was understandably upset about the incident,
Mark and Barbara both testified that no harm came to A.K.
According to Mark and Barbara, A.K. believed that she was
supposed to be with Annette, describing the 10-day period as
a “vacation.”
Because Mark refused to supervise visits, and no alternate
third-party supervisor was agreed to, it appears that Annette
has not had even supervised visitation with A.K. since the
incident in August 2020. Mark testified that Annette continued
to seek visitation, albeit intrusively, by unexpectedly show-
ing up at Mark’s house for visitation without an approved
supervisor. Mark indicated that these attempted visits would
often devolve into shouting and that law enforcement would
be called to intervene. Barbara testified that A.K. was often
present to observe these chaotic incidents.
Although supervised visits were not occurring, Mark tes-
tified that Annette and A.K. continued to have telephone
contact up to six times a week, most of which were initi-
ated by Annette. Mark testified that the conversations were
appropriate and that such contact did not appear to be in any
way harmful to A.K. Although Mark testified that A.K. had
expressed some hesitancy to talk with Annette following the
- 479 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473May 2021 incident, he also testified that A.K. loves Annette
and wanted to talk to her “[m]ost of the time.”
Mark testified that he did not think Annette would ever hurt
A.K. Rather, Mark’s primary concern was that Annette would
refuse to return A.K. to his custody if given unsupervised
parenting time. Mark testified that he would be comfortable
with continued visitation between Annette and A.K. so long as
there was a supervisor present to ensure A.K. is returned. With
respect to whether termination of Annette’s parental rights
was in A.K.’s best interests, Mark cited concerns regarding
Annette’s unsuitable housing, inadequate means of support,
and mental health. However, Mark also acknowledged that the
2019 decree contained safety provisions specifically directed
at each of these concerns.
2. Procedural Background
The transcript on appeal indicates that the present proceed-
ings were originally initiated by Annette in May 2020, when
she filed an affidavit and application for order to show cause,
alleging that Mark had contemptuously denied her visitation
rights under the 2019 decree. Mark was ordered to appear
before the district court for Lancaster County and show
cause why he should not be held in contempt. Thereafter,
on August 7, 2020, Mark filed two motions in relation to
Annette’s unauthorized custody of A.K. from July 31 to
August 10. Mark styled the first motion as a motion for cita-
tion for contempt, alleging that Annette violated the parenting
plan by exercising unauthorized parenting time and refusing
to allow Mark telephone contact with A.K. Mark styled the
second motion as an ex parte motion to have A.K. returned
to his custody. The court immediately granted both motions,
ordering Annette to return A.K. to Mark’s custody and to
appear and show cause as to why she should not be held in
contempt. Thus, as of August 7, both parties were ordered to
appear before the district court and show cause as to why they
- 480 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473should not be held in contempt for violating the terms of the
parenting plan.
A hearing was apparently held on August 13, 2020, after
which the court appointed a guardian ad litem for Annette. A
supplemental transcript reveals a brief order entered on August
18, in which the court vacated the order for Mark to show
cause on the grounds that Annette failed to appear at a hearing
thereon. With respect to the order for Annette to show cause,
the court continued the matter, and it remained pending when
Mark filed his complaint for modification and termination of
parental rights on August 26.
In his complaint, Mark alleged that a material change in
circumstances had occurred, to wit: statutory grounds to ter-
minate Annette’s parental rights existed under Neb. Rev. Stat.
§ 43-292(2), (3), (5), and (9) (Reissue 2016), and that termina-
tion of Annette’s parental rights was in A.K.’s best interests.
Accordingly, Mark requested an order terminating Annette’s
parental rights or, in the alternative, modifying the decree
and parenting plan to suspend any and all visitation between
Annette and A.K. On September 9, Mark filed a motion for
determination of appropriate forum pursuant to Neb. Rev.
Stat. § 42-364(5) (Cum. Supp. 2020). On October 7, the dis-
trict court entered an order transferring to the juvenile court
“all currently pending matters to include the Complaint for
Modification and Termination of Parental Rights and Order to
Show Cause.” Despite this reference to the pending order to
show cause, there was no further discussion of that order on
the record until near the end of trial when it was brought to the
attention of the juvenile court.
On January 11, 2021, the juvenile court entered an order
accepting the transfer of the case from the district court.
Following a number of discovery-related delays and pretrial
motions, a trial on Mark’s complaint was held on May 13 and
14. After trial, the juvenile court entered an order dismissing
the complaint on the grounds that “there has not been a mate-
rial change in circumstances since the entry of the Decree that
- 481 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473would warrant the requested modification, to include a request
for termination of [Annette’s] parental rights.” The court fur-
ther “vacated and dismissed without prejudice” any pending
orders to show cause and overruled Mark’s requests for sanc-
tions and attorney fees. Mark appealed.
III. ASSIGNMENTS OF ERROR
Mark assigns, restated and reordered, that the juvenile court
erred in (1) failing to terminate Annette’s parental rights, (2)
failing to otherwise modify the 2019 custody arrangement, (3)
vacating the pending order to show cause, and (4) overruling
Mark’s requests for sanctions and attorney fees.
IV. ANALYSIS
Mark’s complaint raised two primary questions for review.
First, Mark alleged that Annette’s parental rights should be
terminated under § 43-292. Regardless of whether this mat-
ter was tried in district court or transferred to the juvenile
court, § 42-364(5) provides that the question of termination be
answered according to the Nebraska Juvenile Code. Second,
if termination of Annette’s parental rights was unsuccessful,
Mark alleged that there was nevertheless a material change
in circumstances warranting modification of the 2019 decree
and parenting plan to suspend “any and all visitation” between
Annette and A.K. The juvenile court answered both questions
in the negative, finding the record failed to demonstrate that
termination of Annette’s parental rights was in the best inter-
ests of A.K. and finding that Mark had failed to prove a mate-
rial change in circumstances warranting modification. Because
we agree with the juvenile court in both respects, we affirm the
order of the juvenile court dismissing Mark’s complaint.
1. Termination of Parental Rights
(a) Standard of Review
[1] Both parties on appeal suggest that we review the
juvenile court’s order de novo on the record and affirm in
- 482 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473the absence of an abuse of discretion, because that is the
standard of review applicable to actions for modification of
a judgment or decree relating to child custody, visitation, or
support. See Windham v. Kroll, 307 Neb. 947, 951 N.W.2d
744 (2020). However, Mark’s complaint sought modification
only in the alternative to his request that Annette’s parental
rights be terminated. Termination of parental rights cases,
even when raised under § 42-364(5), are reviewed de novo
on the record, and an appellate court is required to reach a
conclusion independent of the juvenile court’s findings. See
Kenneth C. v. Lacie H., 286 Neb. 799, 806, 839 N.W.2d 305,
311 (2013) (“[a]lthough this is not a typical juvenile case
governed exclusively by the Nebraska Juvenile Code, . . .
the standard of review applicable to juvenile cases is appli-
cable here”).
(b) Analysis
With respect to termination, the court found that “the restric-
tions outlined in the Parenting Plan provide the necessary pro-
tections for [A.K.] such that the drastic step of terminating
parental rights is unnecessary at this time and not in [A.K.’s]
best interests.” The court acknowledged Annette’s shortcom-
ings and Mark’s understandable frustration. However, the court
noted that Annette and A.K. appeared to be bonded, pointing
to prior visitation when Mark was willing to supervise and
continued telephone contact. Ultimately, the court concluded,
“There are other options that can be utilized, short of termina-
tion of parental rights, to ensure [A.K.’s] safety and satisfy the
concerns of [Mark], while also facilitating an ongoing relation-
ship between [Annette] and [A.K.]” Namely, the court encour-
aged the parties to implement the terms of the parenting plan
“as strictly written, as opposed to how the [parties] had quite
loosely followed the plan in the past.”
On appeal, Mark argues the court erred in “not analyz-
ing” the issue of termination. Mark argues that the juvenile
court simply failed to address either prong of the termination
- 483 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473analysis. Although Mark is correct that the juvenile court’s
order does not explicitly address the statutory grounds for ter-
mination, the court did explicitly find that termination was not
in the best interests of A.K. at this time, and we agree.
[2,3] Under Nebraska law, terminating parental rights
requires both clear and convincing evidence that one of the
statutory grounds enumerated in § 43-292 exists and clear and
convincing evidence that termination is in the best interests of
the children. See In re Interest of Donald B. & Devin B., 304
Neb. 239, 933 N.W.2d 864 (2019). Termination of parental
rights is a final and complete severance of the child from the
parent and removes the entire bundle of parental rights. In re
Interest of Justin H. et al., 18 Neb. App. 718, 791 N.W.2d
765 (2010). With such severe and final consequences, parental
rights should be terminated only in the absence of any reason-
able alternative and as the last resort. Id.It is important to identify precisely what is at stake as it
relates to the termination of Annette’s parental rights under the
unique circumstances of this case. The detailed terms of the
parenting plan already limit Annette’s parenting time to fully
supervised visitation until she can demonstrate compliance
with all the safety provisions. Because Mark is now refusing to
supervise visits, even Annette’s supervised visitation is essen-
tially suspended until such time as the parties agree on a third-
party supervisor or Annette obtains funds sufficient to hire a
professional supervisor. Annette has much progress to make
before any form of unsupervised parenting time would be
contemplated; however, the safety provisions were specifically
designed to ensure A.K.’s safety while Annette continues to
strive toward the stability she demonstrated from 2013 to 2017.
Moreover, Annette and A.K. have continued to have frequent
telephone communication, and, despite Annette’s challenges,
the record suggests they continue to share a loving mother-
daughter relationship.
Annette’s unauthorized custody of A.K. in August 2020 is
certainly concerning; however, it appears A.K. was not harmed
- 484 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473by the incident, and Mark himself testified that he is not con-
cerned about Annette’s hurting A.K. Rather, Mark’s primary
concern is that Annette might refuse to return A.K. if given
unsupervised parenting time. Under the present restrictions,
Annette will have only supervised parenting time for the fore-
seeable future. We note that Mark did testify that he would
be comfortable with continued visitation between Annette and
A.K. so long as an appropriate supervisor is present to ensure
A.K.’s return.
Although the juvenile court did not conduct an explicit
analysis of the statutory grounds for termination, such was
unnecessary in light of the court’s finding that termination
was not in A.K.’s best interests. Even if we assume that Mark
proved one or more statutory grounds for termination by
clear and convincing evidence, we nevertheless agree with the
juvenile court that the “drastic step” of terminating Annette’s
parental rights is neither necessary nor in A.K.’s best interests
at this time. Accordingly, we affirm the order of the juvenile
court dismissing Mark’s request for termination of Annette’s
parental rights.
2. Modification
(a) Standard of Review
[4] Modification of a judgment or decree relating to child
custody, visitation, or support is a matter entrusted to the dis-
cretion of the trial court, whose order is reviewed de novo on
the record, and will be affirmed absent an abuse of discretion.
Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 744 (2020).
(b) Analysis
With respect to modification, the court found that
“[Annette’s] current situation does not establish a material
change in circumstances, as her overall life situation appears
to be the very facts upon which the restrictive Parenting Plan
was developed at the time of the 2019 dissolution proceeding.”
The court acknowledged Annette’s persistent failure to comply
- 485 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473with the safety provisions in the parenting plan, noting spe-
cific violations such as Annette’s failure to adequately address
her mental health, her lack of sobriety, her inability to abstain
from criminal behavior, and her lack of suitable housing and
income. However, the court observed that the safety provisions
in the parenting plan were specifically designed, and remained
adequate, to address the safety concerns raised by Annette’s
behavior. We agree.
[5,6] Prior to modification of a child custody order, two
steps of proof must be taken by the party seeking modifica-
tion. Weaver v. Weaver, 308 Neb. 373, 954 N.W.2d 619 (2021).
First, the party seeking modification must show by a prepon-
derance of the evidence a material change in circumstances that
has occurred after the entry of the previous custody order and
that affects the best interests of the child. Id. Second, the party
seeking modification must prove that changing the child’s
custody is in the child’s best interests. Id. Generally speaking,
a material change in circumstances is the occurrence of some-
thing which, had it been known to the dissolution court at the
time of the initial decree, would have persuaded the court to
decree differently. Id.[7] Mark generally points to Annette’s continued failure to
comply with the safety provisions in the parenting plan as the
material change in circumstances warranting the suspension
of all visitation between Annette and A.K. The guardian ad
litem for A.K., in a report to the juvenile court, opined that the
incident of Annette’s unauthorized custody of A.K. amounted
to a material change in circumstances warranting modifica-
tion of the custody arrangement. However, the juvenile court
disagreed, and the weight given to the opinion of a guardian
ad litem is in the trial court’s discretion. See Beran v. Beran,
234 Neb. 296, 450 N.W.2d 688 (1990). In any case, even if
we assume that a material change in circumstances affecting
A.K.’s best interests had occurred since the entry of the 2019
decree, we must nevertheless examine whether the requested
modification is in A.K.’s best interests.
- 486 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473Mark requested that the decree and parenting plan be modi-
fied to suspend any and all visitation between Annette and A.K.
“until such time as [Annette] was able to show compliance
with the safety provisions.” Brief for appellant at 38. Annette
is already limited to fully supervised visitation unless and
until she demonstrates compliance with the safety provisions,
and Mark himself testified that he would be comfortable with
continued visitation so long as it was supervised. In this way,
Mark failed to meet his burden to prove that further limiting
Annette’s parenting time by suspending even supervised visita-
tion was in A.K.’s best interests. To the contrary, we agree with
the juvenile court that adherence to the current parenting plan,
if implemented as written, remains in A.K.’s best interests.
3. Order to Show Cause
(a) Standard of Review
[8] 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. In re Interest of Zachary D. & Alexander
D., 289 Neb. 763, 857 N.W.2d 323 (2015).
(b) Analysis
Mark assigns that the juvenile court erred in vacating the
pending order for Annette to show cause as to why she should
not be held in contempt for her unauthorized custody of A.K.
in August 2020. Mark argues the evidence clearly estab-
lishes that Annette’s conduct amounted to willful disobedi-
ence of the custody order, such that Annette should have been
held in contempt and subjected to an appropriate purge plan.
Annette counters that she was not advised of her rights or the
allegations against her and that no hearing on the issue of
- 487 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473contempt was scheduled or held. Accordingly, Annette argues
the matter of contempt was properly “reserved” by the juve-
nile court and should be set for further hearing on the specific
allegations of contempt. Brief for appellee at 23. Both parties
agree that the juvenile court was apparently unaware of the
pending order to show cause until near the end of the trial on
Mark’s complaint.
[9,10] When a party to an action fails to comply with a
court order made for the benefit of the opposing party, such act
is ordinarily civil contempt, which requires willful disobedi-
ence as an essential element. In re Interest of Zachary D. &
Alexander D., supra. Outside of statutory procedures imposing
a different standard, it is the complainant’s burden to prove
civil contempt by clear and convincing evidence. Id.The record is clear that Annette’s unauthorized custody of
A.K. from July 31 to August 10, 2020, was a violation of the
parenting plan in multiple respects. However, the juvenile
court did not make any findings of fact as to the willfulness
of this violation. Although the circumstances of that incident
were discussed at trial, consideration of those facts was con-
fined to the issues of termination and modification. Indeed, the
court was apparently unaware of the pending contempt issue
until near the end of trial. The court did not make any deter-
mination as to whether the incident amounted to contempt.
Rather, the court vacated and dismissed the pending order to
show cause without prejudice. Under the circumstances of
this case, we conclude the juvenile court’s dismissal without
prejudice of the pending order to show cause was not an abuse
of discretion. The matter of Annette’s alleged contempt may
be set for further hearing upon subsequent application to the
district court.
4. Sanctions and Attorney Fees
(a) Standard of Review
[11] A trial court’s determination of requests for sanc-
tions and for attorney fees are both reviewed for an abuse
- 488 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KITSMILLER V. KITSMILLER
Cite as 31 Neb. App. 473of discretion. See, Cornwell v. Cornwell, 309 Neb. 156, 959
N.W.2d 243 (2021); Malicky v. Heyen, 251 Neb. 891, 560
N.W.2d 773 (1997).
(b) Analysis
Mark lastly assigns that the juvenile court erred in over-
ruling his motions for sanctions and attorney fees. Mark’s
requests were primarily based on Annette’s lack of partici-
pation in depositions and her failure to produce requested
documents. Mark requested that Annette be precluded from
presenting certain evidence due to her lack of cooperation with
discovery, and he sought reimbursement for the costs associ-
ated with the missed depositions.
The court acknowledged that Annette failed to appear for
two scheduled depositions and participated only minimally in
a third. However, the court also noted that there was some evi-
dence of justification for the two missed depositions, and the
third deposition occurred without notice shortly after Annette
became incarcerated. The court thereafter employed proce-
dural safeguards to limit the prejudicial effect of Annette’s
limited cooperation, including providing opportunities for
Mark to discover and present additional evidence in response
to any unforeseen evidence provided by Annette at trial.
Noting Annette’s current indigence, the court ultimately stated,
“While the Court sympathizes with [Mark’s] situation and the
costs incurred to litigate this modification . . . assessing trial
costs or expenses to [Annette] is not appropriate given the
facts of this particular case.” We find no abuse of discretion in
the juvenile court’s decision.
V. CONCLUSION
For the foregoing reasons, we affirm the order of the juve-
nile court dismissing Mark’s complaint, vacating the pending
order to show cause, and overruling Mark’s motions for sanc-
tions and attorney fees.
Affirmed.