Griepenstroh v. Proctor

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
GRIEPENSTROH V. PROCTOR
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).
ANDREW GRIEPENSTROH, APPELLEE,
V.
ANGELA PROCTOR, FORMERLY KNOWN AS ANGELA CLARK, APPELLANT.
Filed November 2, 2021. No. A-20-738.
Appeal from the District Court for Otoe County: JULIE D. SMITH, Judge. Affirmed.
Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellant.
W. Gregory Lake, of Nebraska Legal Group, for appellee.
PIRTLE, Chief Judge, and MOORE and WELCH, Judges.
MOORE, Judge.
I. INTRODUCTION
Angela Proctor appeals from the order of the district court for Otoe County, which found
her in contempt and imposed sanctions against her, and which modified the court’s previous orders
regarding custody, parenting time, and child support. Finding no abuse of discretion, we affirm.
II. STATEMENT OF FACTS
1. PATERNITY ORDER
Andrew Griepenstroh and Angela are the parents of a minor son, Drew, born in 2008. In
2011, an order was entered establishing paternity, custody, and parenting time. In 2015, an order
was entered modifying the paternity decree. The 2015 order and parenting plan provided that
Angela would have legal and physical custody, and it also provided that the parents would consult
with each other regarding major decisions affecting Drew’s development or well-being; were to
make mutual medical and dental decisions for Drew, except under emergency circumstances; and
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would keep one another informed regard to his educational progress. The parenting plan provided
that Andrew would have parenting time the first three weekends of each month from 6:30 p.m.
Friday to 6 p.m. Sunday and summer parenting time every other week during June and July and
the first week in August; it also specified a holiday parenting time schedule. The 2015 order
required Andrew to pay $500 per month in child support and cash medical support of $126 per
month (because health insurance was not available at a reasonable cost and/or not accessible at
that time).
2. COMPLAINT FOR MODIFICATION
On June 3, 2019, Andrew filed a complaint for modification, seeking sole legal and
physical custody of Drew, or in the alternative, joint physical and sole legal custody, as well as the
determination of a parenting plan, child support and division of childcare, extracurricular activities,
and unreimbursed medical expenses, and attorney fees. Andrew alleged that since the entry of the
previous order, the following material circumstances had occurred: Angela had not allowed the
ordered parenting time, Drew had missed an excessive amount of school, Angela would not allow
Drew to participate in extracurricular activities, Angela did not communicate with Andrew
regarding Drew’s medical or dental visits, and Angela was taking Drew to the doctor excessively.
Andrew alleged that Drew’s best interests required a change in the order regarding custody,
support, and parenting time.
3. ANDREW’S CONTEMPT ACTION AND OTHER PLEADINGS
On July 23, 2019, Andrew filed a motion for order to show cause, alleging that Angela
should be found in willful contempt of the 2015 order for failing to communicate with him and
involve him regarding Drew’s medical treatment, for failing to inform Andrew regarding Drew’s
school attendance, for failing to adhere to the parenting time provisions, and in failing to cooperate
in telephone contact between Andrew and Drew.
On July 26, 2019, Angela filed an answer to Andrew’s complaint and a counter-complaint
for modification, in which she alleged that a material change in circumstances had occurred, that
Andrew’s parenting time should be suspended “due to [Andrew’s] parenting abilities and the
psychological/emotional needs of [Drew],” and that a mutually agreeable parenting plan as
provided in the Parenting Act had not been developed. Angela also sought a modification of child
support and contribution toward child related expenses, and attorney fees. Andrew, in his reply,
denied the allegations of the counter-complaint.
At an October 8, 2019, hearing scheduled on Andrew’s motion for contempt, Angela
sought a continuance due to the unavailability of one of her witnesses (there had been a suggestion
prior to the hearing that the witness might be in violation of Neb. Rev. Stat. § 28-711 (Reissue
2016) (obligation to report child abuse or neglect)). The district court found good cause to continue
the hearing over Andrew’s objection, and the show cause hearing was continued to October 21.
The court also addressed a motion filed by Angela with respect to parenting time. The court
ordered specific parenting time for Andrew “each Wednesday” from 5 p.m. to 8 p.m. and on
Sunday, October 13, and Sunday, October 20, with the Sunday visits occurring from 8 a.m. to 5
p.m. These visits were to be supervised by Andrew’s mother. The court also granted a request by
Angela for a parenting evaluation.
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The district court heard Andrew’s contempt motion on October 21 and 22, 2019. The court
received various exhibits offered by the parties, including copies of text messages exchanged by
the parties, attorney fee affidavits, school attendance reports for Drew, and a written statement
from Drew’s therapist. The court heard testimony from the parties, Andrew’s mother and his
girlfriend, and Drew’s therapist. The court also heard in camera testimony from Drew. Drew’s
testimony has been sealed, and while we have reviewed and considered his testimony in our de
novo review of the record, we will not recount it here. At the close of Andrew’s evidence, Angela
made a motion for directed verdict, and the court granted her motion with respect to the allegations
about her failure to communicate about school absences and medical issues, holiday parenting
time, and telephone calls with Drew. The court found that Andrew had presented enough evidence
with regard to the denial of his parenting time to avoid Angela’s motion for directed verdict.
Accordingly, we have only summarized below the evidence with respect to that issue.
Andrew lives about five houses away from Angela and her husband. Andrew stopped
receiving his regular weekend parenting time with Drew in April 2019. He also confirmed that he
did not receive his holiday or summer parenting time and that Drew had not gone on a Colorado
family vacation trip with Andrew, a trip which Drew had gone on in previous years. Andrew did
not know of anything particular that prompted the cessation of his parenting time, although he
referenced allowing Drew to miss parenting time on a few occasions to spend time with his
half-brothers and cousins, which then “turned into a lot more times,” despite Andrew’s efforts to
“get him to come over.” He also testified about an instance in March when he and his girlfriend
went bowling with Drew, which was the first time Drew met the girlfriend, but according to
Andrew, they all had fun. Text messages between the parties reflect that Angela informed Andrew
that she was not sending Drew on the Colorado trip with Andrew based on how “it has affected
[Drew] mentally” and the fact that Drew “wouldn’t eat and was not sleeping due to the anxiety of
it.”
Andrew testified about his four supervised visits with Drew in the 2 previous weeks,
describing them as “great” and later as having “been fine.” Andrew testified that the night before
his testimony, he had been visited by law enforcement and accused of child abuse (based on a
bruise on Drew’s arm and Drew’s statement that Andrew hit him). Andrew denied hitting Drew.
Andrew offered as an exhibit Drew’s attendance records he received from Drew’s school,
documenting that Drew had 48.875 absences during the 2018-2019 school year. Reasons for the
absences documented on the exhibit include “not feeling well,” “fever,” “diarrhea,” “flu,”
“stomach ache,” “appendix?,” “vomiting [sic],” “migraine,” “concussion,” “headache,” leaving
for various doctor appointments, “refusing to come to school,” and “absent per mom.” When asked
about his awareness of Drew’s medical conditions, Andrew testified, “I guess he has ADHD and
[is] allergic to everything and trees and cats and whatever else.” Andrew did not know the names
of Drew’s medications, but he agreed that Drew takes “an ADHD medication” and “some sort of
sleeping medication.” He also testified that Drew had seen various therapists, some of whom
Andrew had met. When asked about the anticipated testimony of Drew’s current therapist, Andrew
again denied ever abusing Drew, stating, “I’ve never even spanked him.”
In their testimony, Andrew’s mother and his girlfriend both denied ever seeing Andrew
physically abuse Drew. Andrew’s mother confirmed that she and her family have almost always
taken a summer vacation and that Drew had always gone with them prior to 2019.
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Before her testimony, the district court advised Drew’s therapist, Jenina Lepard, of her
right not to testify. Lepard began seeing Drew near the end of July 2019, after Angela contacted
her and expressed concerns about Drew having anxiety and anger issues. Lepard had been seeing
Drew weekly since July 23. She testified that Angela had been present during all of her sessions
with Drew at Drew’s request. Lepard testified to her belief that Drew suffered from those issues
(anxiety and anger), indicating Drew had repeatedly expressed having anxiety upon seeing
Andrew. She felt medication was necessary to help treat Drew’s issues, and she testified that his
medication was not just for his anxiety, but also for “migraines, immune deficiency, ADHD,
allergies.” She testified that Drew reported to her that Andrew had struck him or been otherwise
physically abusive on multiple occasions and that this was a frequent topic during her sessions
with Drew. According to Lepard, it would be beneficial for Drew to see Andrew in a therapeutic
environment. She noted that concerns had been raised to her about Drew not eating, not sleeping
well, and having migraines. Lepard testified that many of those issues were tied to Drew’s anxiety
and directly related to Andrew’s “behavior.” She believes Drew will continue to suffer these
symptoms if alone with Andrew for an extended period.
According to Lepard, Drew reported physical abuse to her during their first session on July
23, 2019, but she did not report that abuse until about 2 weeks prior to her testimony during the
October 21 hearing (after the continuance on October 8). She stated that she did not make a report
on July 23 because the abuse reported at that time “was in the past.” Lepard testified that she made
a report to Child Protective Services the morning of her testimony because of Drew’s reports of
“extreme anxiety during and after” the recent visits with Andrew and his concern that he would be
abused. She testified that “[her] training prepare[d] [her] to detect lies” and that she was “pretty
good at it.”
Angela testified that Drew has been diagnosed with asthma, allergies, ADHD, depression,
separation anxiety, and a sleeping disorder. She indicated that the parties successfully coparented
Drew prior to when the present case was filed. According to Angela, Andrew would sometimes
allow Drew to decide whether he wanted to attend his parenting time. She also testified that
Andrew would occasionally not show up for his parenting time, which affected Drew negatively.
Angela testified that Drew’s behavior started changing in September 2018. Between September
2018 and March 2019, Drew would sometimes call her during visits; would be upset, crying, and
ask her to pick him up; and that Andrew “had no problem” with her doing so. Angela encouraged
Drew to spend time with Andrew and attend scheduled parenting time, but she witnessed more
behavioral problems from him in March or April 2019. She described his behavior when “very
anxious,” stating that he would cry, he would sometimes scream “don’t send me,” and it was “like
he was climbing the wall.” She also indicated that he would not eat or sleep, would “withdraw,”
and that his anxiety was affecting his school performance. Angela testified that Andrew’s summer
vacation time (for the Colorado trip) caused Drew so much anxiety that she made “an emergency
medical decision” to keep him at home. Angela admitted that she had accused the father of Drew’s
half-brothers of mentally and physically abusing their children and that she did not have custody
of those children.
On October 25, 2019, the district court entered an order, finding by clear and convincing
evidence that Angela was in willful contempt of the parenting plan by failing to provide Andrew
with his regular weekend parenting time and summer parenting time between April and July 23.
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In its order, the court made detailed findings about both Lepard’s and Drew’s testimony. The court
found that Lepard’s testimony was not credible for numerous reasons, including her conduct and
demeanor while testifying and inconsistencies in her testimony about what Drew disclosed and
when he made those disclosures. The court also expressed its concerns with Drew’s testimony,
including:
[I]nstance(s) in which it was clear that Drew was not using his own words, using words he
could not pronounce or words of which [he] did not know the meaning; instance(s) in which
what Drew said occurred which simply could not have occurred without causing results
which did not materialize; and instance(s) in which Drew paused for a lengthy amount of
time before answering, indicating to the court that perhaps he wanted to give a different
answer but thought he shouldn’t. However, even if the court were to take all of Drew’s
testimony as true, [Angela] would still be in willful contempt of the court’s [November
2015 order] for failure to require Drew to go to his father’s house for his regular weekend
parenting time between April 2019 and July 23 . . . as well as the family trip to Colorado
between July 14 . . . and July 21. . . .
(Emphasis in original.) The court went on to note that while there was testimony that Drew
experiences anxiety and did not want to attend parenting time with Andrew, Drew did not make
any allegations of abuse to Angela, Lepard, or anyone else prior to July 23. The court noted
Angela’s testimony that between April and July 23, although she and her husband encouraged
Drew to attend parenting time with Andrew, she left it up to Drew, who was then 10 years old,
whether to do so. The court stated, “[Angela] has a duty not only to encourage a ten-year-old to go
to his father’s parenting time; she has a duty to require it.” The court also stated, “[s]urely that was
possible,” given that Angela had required Drew to attend parenting time with Andrew four separate
times between October 8 and 21. The court found the fact that Andrew had voluntarily relinquished
some of his parenting time in the past to allow Drew to spend time with his half-brothers was not
a defense. Although the court found Angela in contempt of the parenting time provisions of the
parenting plan, due to Drew’s “recent allegations of abuse by [Andrew],” the court did not impose
a sanction against Angela at that time. Rather, the court ordered that the sanction hearing be held
at the time of trial for the modification action.
On December 12, 2019, the district court entered a temporary order, addressing a motion
for temporary allowances filed by Andrew and a motion to suspend parenting time filed by Angela.
The court noted evidence that Andrew had been receiving his regular parenting time since entry
of the contempt finding against Angela and that Andrew had installed cameras in his home in
response to the allegations of child abuse. Next, the court noted an incident in November when
police showed up at a hotel where Andrew and Drew were staying after Drew spent some time on
the telephone while in the bathroom. The officers assessed the situation and made no arrest; Angela
eventually picked Drew up from the hotel. Finally, the court noted evidence that Drew had snuck
out of Andrew’s residence and returned to Angela’s on other occasions during Andrew’s parenting
time and that law enforcement and the Department of Health and Human Services investigated an
accusation of child abuse in October and found that no abuse had occurred and the allegation was
“unfounded.” The court again noted its concerns about the credibility of the testimony provided
by Lepard and Drew at the time of the earlier contempt hearing. While the court found there was
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no credible evidence that Andrew had been physically abusing Drew, it did find that Drew was
“extremely distraught” and his behavior at both parental residences and at school had deteriorated.
The court stated, “There has been too much flexibility in the parenting schedule, giving Drew the
impression that parenting him is up to him and creating stressors in Drew’s life,” and it noted the
communication problems between the parties and Drew. The court stated that the parties need to
require Drew to spend his parenting time with each party instead of leaving at will and going to
the house of his choice. The court denied Angela’s request to suspend parenting time and also
denied Andrew’s request to award him sole physical and legal custody on a temporary basis. The
court ordered the parties to comply with the previous parenting plan subject to a temporary
modification regarding telephone contact. The court required both parties to provide 5 days’
written notice before not exercising parenting time, forbade both parties from posing questions to
Drew which implied parenting time was up to him, and ordered the parties to communicate in a
meaningful way to coparent Drew.
4. ANGELA’S CONTEMPT ACTION, OTHER MOTIONS, AND MODIFICATION TRIAL
On February 7, 2020, Angela filed a motion for order to show cause, alleging that Andrew
should be held in contempt for alleged violations of the 2015 parenting plan and the December 19,
2019, temporary order. Specifically, Angela alleged that Andrew disparaged Angela in Drew’s
presence, failed to exercise certain parenting time as provided in the temporary order and did not
provide the required notice, left his parenting time decisions up to Drew, and repeatedly failed to
meaningfully communicate with Angela about issues necessary for coparenting.
At a hearing on February 14, 2020, the district court considered various motions filed by
the parties. Although Andrew had not been served in the contempt action filed by Angela, he
entered a denial, and the court advised him of his rights. The court scheduled final hearing on
Angela’s contempt action for the same time as the modification trial. The court also heard a motion
for sanctions filed by Andrew in his contempt action against Angela and Angela’s motion to
dismiss that motion.
In support of her motion to dismiss Andrew’s motion for sanctions, Angela offered an
affidavit, in which she stated, among other things, that Andrew disparaged her in Drew’s presence
when she dropped Drew off for visitation on December 20, 2019; that she received a phone call
later that night indicating Drew had threatened to attempt suicide, after which he was taken to the
hospital for evaluation and returned to Angela’s residence for the night, as recommended by the
doctor; and that Andrew then failed to exercise parenting time on additional dates in December
2019 and January 2020. Angela attached text message correspondence of the parties between
December 19, 2019, and February 6, 2020, in support of her allegations. Among the things
documented in the text messages was the parties’ discussion of how to handle the fact that Drew
had been returning to Angela’s residence during his parenting time with Andrew. The parties’
discussion reflects the lack of clarity at that point for whose responsibility it was to return and/or
pick up Drew in the event he ran away from Andrew’s home.
In discussing Andrew’s motion for sanctions, the district court expressed concern about
Drew’s threat to harm himself, noted that it had not yet received the previously ordered parenting
evaluation, and declined to impose sanctions against Angela at that point. Angela’s attorney asked
the court to provide clarification of the parties’ responsibilities for transportation on occasions
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when Drew would run away from Andrew’s residence and return to Angela’s residence. The
attorneys also discussed with the court the parties’ efforts to seek further mental health evaluation
and treatment for Drew. The court made further rulings based on those discussion that were
memorialized in the court’s subsequent order.
In its order following the February 2020 hearing, the district court denied Angela’s motion
to dismiss. It also denied Andrew’s motion to impose sanctions against Angela at that time for her
willful contempt, stating that it would impose sanctions against her after receiving evidence at the
final hearing and after completion of the previously ordered parenting evaluation. The court
ordered the parties to comply with all court orders then in effect, “including but not limited to the
exercise of parenting time.” The court also made several specific orders relating to Drew. First,
the court stated:
If Drew runs away from [Andrew’s] house during parenting time, it is the responsibility of
[Angela] to take Drew back to [Andrew’s] house immediately. If [Angela] is more than 25
miles from Syracuse, Nebraska, at the time, [Andrew] shall retrieve Drew from [Angela’s]
home. For this purpose, if [Angela] does not authorize [Andrew] to enter her home (with
or without the assistance of law enforcement) while she is not home, [Angela] will be
required to return to Syracuse, Nebraska, immediately, regardless of her location to return
Drew to [Andrew’s] home.
The court also ordered as follows:
The parties are ordered to take Drew to a psychiatrist. In doing so, the parties are to make
a mutual decision as to the provider and the course of treatment for mental health. If the
parties are unable to agree upon a psychiatrist, [Andrew] has the final authority. Any
expenses relating to the cost of the psychiatrist which are not reimbursed by or covered by
insurance shall be shared equally between the parties.
Trial was held on June 26 and 29, 2020, on the parties’ respective complaints for
modification, Angela’s motion for order to show cause, and for disposition regarding the previous
finding that Angela was in willful contempt. The court received various documentary exhibits and
heard testimony from witnesses including the parties, a friend of Andrew’s, the psychologist who
conducted the parenting evaluation, and Andrew’s girlfriend. Much of the trial evidence was
duplicative of and consistent with evidence received at other hearings and noted above. We have
summarized relevant additional evidence below.
Andrew’s long-time friend helped Andrew install video cameras in his residence because
of the abuse allegations against Andrew. No recordings from these cameras were admitted into
evidence. Andrew testified that he had deleted any recordings from the cameras, but he denied that
there had been anything on them to support the allegations of abuse. Andrew’s friend testified that
he had never seen Andrew abuse Drew. The friend had observed Andrew drinking alcohol in the
past, including in Drew’s presence, but he testified that he had never seen Andrew drink
excessively. The friend felt Andrew was a good father and someone he would trust to watch his
own children.
Dr. Rick McNeese testified about his parenting evaluation of the parties. McNeese
conducted clinical interviews of the parties and Drew, had structured behavioral observation of
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Drew with each party, administered various psychological testing instruments to the parties, and
reviewed collateral information (including court records and information from Drew’s current
therapist). McNeese did not conduct home visits due to precautions relating to the COVID-19
pandemic, but the parties agreed to provide him with pictures of their respective residences.
McNeese felt that Drew’s ADHD was not being fully treated and that a different medication would
be helpful. McNeese stressed the importance of the parties working together on a consistent
treatment plan for Drew. Based on information from Drew’s current therapist, McNeese felt that
the relationship between Andrew and Drew had already improved. And, he testified that it would
be important for both parties to each work on improving their individual parenting skills.
In addition to testifying about his parenting evaluation, McNeese also testified about how
information might be relayed by children who have been “coached.” McNeese testified about the
statement in his report that when a child has “ADHD with inattentive type,” like Drew, it would
be more difficult for a parent to coach the child to tell a particular story, and that due to issues in
the child’s short-term memory, his recitation would be more likely to present in a halting or
confused manner. In his testimony, McNeese indicated that children who have been “coached”
usually “will have a pretty superficial kind of explanation with few details.”
In his report, McNeese provided detailed comments and recommendations, which we do
not recount further here, except to note that McNeese felt that the parties needed to work together
in parenting Drew and would benefit from joint counseling sessions with respect to their parenting
of him, that Drew would benefit from a change in medication and a thorough psychological and
behavioral evaluation, that stability and consistency were important for Drew, as well as gradual
changes in parental contact, and that if Andrew was unable to abstain from alcohol during Drew’s
visits, he should undergo a substance abuse evaluation. McNeese also observed that Andrew “has
a difficult time parenting Drew,” and he cautioned against any “verbal abuse” or “rants” by
Andrew. McNeese observed that without the changes recommended in his report, approaches to
managing Drew’s resistance to contact with Andrew would be less likely to succeed.
The parties and Andrew’s girlfriend testified about the issue of Drew running away from
Andrew’s house during his parenting time. The evidence shows that he did this on more than one
occasion following entry of the December 2019 temporary order and continued to do so on
occasion after entry of the February 2020 order. Prior to the February order, the parties would
exchange text messages to address the issue, but as noted above, there was some confusion as to
whose responsibility it was at that point to return Drew to Andrew’s residence. On one occasion
after the February order, Angela informed Drew that she would not be home if he ran away. Angela
agreed that there was a weekend when Drew did not run away, but it is unclear whether this
corresponds with the occasion when she texted him that she would be out of town. The evidence
reflects that the summer parenting time schedule was going well and Drew had not run away
recently.
Additional text messages between the parties were admitted into evidence during the
modification trial, and it is clear that the parties communicate primarily by text message and have
had antagonistic exchanges in the past. However, they both testified they would be able to
communicate with one another effectively about parenting issues if legal custody were changed
despite their past difficulties.
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The parties also testified about the December 2020 incident when Drew threatened
self-harm. We do not recite further details here, except to note that Drew revealed at one point that
he intended to harm himself by holding his breath. We also note that Drew continued to be in
counseling at the time of the modification trial and that he was seeing a different therapist than
Lepard. Angela felt that counseling with the new therapist was helpful to Drew, it had improved
Drew’s relationship with Andrew, and further counseling with this therapist would be beneficial.
At the time of the modification trial, Andrew was employed as a journeyman mason,
earning $28.50 per hour. Angela had not been employed outside the home for several years; her
last job had been part-time employment. Her last full-time job outside the home was about 4 years
prior to trial, at which time she earned minimum wage. She testified that she did not have anything
limiting her ability to work, but she indicated that she was not working currently, in part, because
of Drew’s issues and also because she was providing some care for her grandfather.
5. MODIFICATION DECREE
On August 7, 2020, the district court entered a decree of modification. The court found that
there had been a substantial and material change of circumstances warranting modification of the
2015 order. The court made detailed findings with respect to the change of circumstances regarding
custody and Drew’s best interests. In finding a material change in circumstances, the court noted,
among other things, that Angela had not allowed ordered parenting time beginning in April 2019
and continuing until October, that Drew had missed an excessive amount of school, and that both
parties had failed to communicate well regarding Drew. The court expressed concern about how
often Angela had taken Drew to the doctor “without ever seeing a specialist” and the amount of
school Drew had missed for those appointments, but it declined to find that Angela was taking
Drew to the doctor excessively, as alleged by Andrew. (Emphasis in original.) With respect to best
interests, the court again noted the “false allegations” of abuse that had been made against Andrew.
Angela had urged the court to reconsider its previous findings with regard to the credibility of
Drew’s earlier in camera testimony, but the court again expressed its reservations about certain
aspects of Drew’s testimony, even in light of possible explanations provided by McNeese. The
court also noted Andrew’s denial of any physical abuse of Drew, and it found that Angela had not
established by a preponderance of the evidence that Andrew had committed child abuse or neglect.
In connection with additional best interests findings, while noting McNeese’s opinion that
“increased contact with [Andrew] should be done gradually, rather than with a large change,” the
court stated that its order was “maintaining the status quo which has been working well this
summer.” The court found it was in Drew’s best interests “to continue with the every-other-week
arrangement so that he may bond with both parents.” The court also found that Drew could benefit
from the parties’ different parenting styles and that neither was an unfit parent. The court
determined that the parties should be awarded joint physical and legal custody of Drew subject to
the provisions of the parenting plan attached to the decree, which adopted an “alternating
week-to-week” regular parenting time schedule with exchanges on Sunday evening at 6 p.m. and
also specified holiday and vacation parenting time. The court also ordered, among other things,
that the parties undergo joint counseling sessions in order to agree how to best parent Drew and
investigate whether Drew’s ADHD was being treated appropriately. The court modified Andrew’s
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child support obligation to $363 per month and terminated his obligation to pay cash medical
support.
In connection with its previous finding that Angela was in willful contempt of court, the
district court ordered that she serve 15 days in jail beginning on December 10, 2020. The court
provided that Angela could purge herself of the jail sentence by forfeiting her Halloween and
Thanksgiving parenting time in 2020 and by paying attorney fees of $7,500 by December 1 for
Andrew’s benefit. The court ordered Angela to pay attorney fees of $7,500 for Andrew even if she
opted not to purge herself of the jail sentence. With regard to Angela’s contempt action against
Andrew, the court determined that Angela had not served Andrew. The court stated that although
it appeared Andrew was not complying with the court’s order, the court lacked jurisdiction to find
him in contempt due to Angela’s failure to serve him. Accordingly, the court dismissed Angela’s
action against Andrew, but it admonished Andrew to comply with the court’s orders.
6. MOTION FOR NEW TRIAL
Angela filed a motion for new trial and motion to alter or amend. On September 11, 2020,
the district court overruled the motion for new trial, and granted the motion to alter or amend in
part, finding that it had jurisdiction to address Angela’s motion for order to show cause because
Andrew had previously entered his appearance and a denial in that action. The court found Andrew
in contempt for failing to exercise certain parenting time in January 2020 and in not providing
notice to Angela. It found the remaining allegations of contempt against Andrew had not been
proven. The court observed that it had found both parents to be in willful contempt of its order,
but that Angela’s contempt had resulted in Andrew not having parenting time for several months
and was more egregious than Andrew’s. The court ordered sanctions against Andrew in the total
sum of $750 and directed that he could purge himself of contempt by exercising all of his parenting
time through November 15, 2020. The court admonished both parties to comply with the court’s
orders. The court also ordered Andrew to pay the sum of $1,000 toward Angela’s attorney fees,
which it offset against the fees Angela was ordered to pay, bringing the total she owed for
Andrew’s attorney fees down to $6,500. The court addressed Angela’s argument that its prior order
requiring that she pay Andrew’s attorney fees within 4 months was excessive, punitive, and an
abuse of discretion. The court disagreed, given the fact that Angela’s willful contempt had caused
Andrew to miss out on several months of parenting time and required him to incur attorney fees.
However, given the court’s finding of contempt by Andrew and Angela’s assertion that she would
not be able to pay the ordered amount by December 1, the court amended the sanctions imposed
upon Angela by separating out the jail sentence into two installments: 10 days beginning on
December 10, 2020, and 5 days beginning on the 10th day of the month following the first missed
payment of attorney fees. The purge plan remained the same for the December 10 jail sentence;
the 5-day jail sentence could be purged by paying the $6,500 attorney fees in $1,000 installments
beginning on December 1, 2020, and on the first of the month thereafter until satisfied. Finally,
the court denied Angela’s motion as it related to the modification action.
Angela timely appealed.
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III. ASSIGNMENTS OF ERROR
Angela asserts that the district court abused its discretion in (1) finding that she was in
willful contempt, (2) imposing punitive and excessive sanctions against her, and (3) modifying
custody to joint legal and physical custody, and as a result, also modifying child support and
child-related expenses.
IV. STANDARD OF REVIEW
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 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. Vyhlidal v. Vyhlidal, 309 Neb. 376,
960 N.W.2d 309 (2021). A judicial abuse of discretion exists if the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just
results in matters submitted for disposition. Id.Modification of a judgment or decree relating to child custody, visitation, or support is a
matter entrusted to the discretion of the trial court, whose order is reviewed by an appellate court
de novo on the record, and will be affirmed absent an abuse of discretion. Lindblad v. Lindblad,
309 Neb. 776, 962 N.W.2d 545 (2021).
V. ANALYSIS
1. CONTEMPT
Civil contempt proceedings are instituted to preserve and enforce the rights of private
parties to a suit when a party fails to comply with a court order made for the benefit of the opposing
party. Vyhlidal v. Vyhlidal, supra. Willful disobedience is an essential element of civil contempt;
“willful” means the violation was committed intentionally, with knowledge that the act violated
the court order. Braun v. Braun, 306 Neb. 890, 947 N.W.2d 694 (2020). Outside of statutory
procedures imposing a different standard or an evidentiary presumption, all elements of contempt
must be proved by the complainant by clear and convincing evidence. Krejci v. Krejci, 304 Neb.
302, 934 N.W.2d 179 (2019). If it is impossible to comply with the order of the court, the failure
to comply is not willful. McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018).
Willfulness is a factual determination to be reviewed for clear error. Braun v. Braun, supra.In a civil contempt proceeding, for the sanction to retain its civil character, the contemnor
must, at the time the sanction is imposed, have the ability to purge the contempt by compliance
and either avert punishment or, at any time, bring it to an end. Yori v. Helms, 307 Neb. 375, 949
N.W.2d 325 (2020). The sanction in a civil contempt proceeding is both remedial and coercive,
and when a jail sentence is imposed as a sanction, the contemnor must carry the keys to their jail
cells in their own pocket. Braun v. Braun, supra. A jail sanction in a civil contempt proceeding is
conditioned upon the contemnor’s continued noncompliance with the court order, and the purge
plan must allow the contemnor to mitigate or avoid the sanction through compliance. Id.- 11 -
(a) Willful Contempt
Angela first argues that the district court’s factual determinations were clearly erroneous
as the determinations of willfulness and credibility were inconsistent with the record. Angela
asserts that the district court gave Andrew “the benefit of the doubt” despite him being a less
credible witness and having “lied under oath multiple times” during the proceedings. Brief for
appellant at 14. Angela also challenges her being held in contempt for acting in what she believed
to be her child’s best interests.
The district court resolved any factual disputes in Andrew’s testimony in his favor, and it
also specifically noted credibility concerns with both Lepard’s and Drew’s testimony. The court
further noted that the record supported a finding of contempt even if it were to take all of Drew’s
testimony as true. Where credible evidence is in conflict on a material issue of fact, the appellate
court considers, and may give weight to, the fact that the trial court heard and observed the
witnesses and accepted one version of the facts rather than another. Yori v. Helms, supra.Accordingly, we find no clear error in the court’s resolution of credibility issues.
Angela next argues that even if the district court’s factual determinations were not clearly
erroneous, the finding that she was in willful contempt was an abuse of discretion. Angela
maintains that she did her best to comply with the parenting plan despite Andrew’s “problematic
conduct” including his routinely allowing Drew to decide whether to go to Andrew’s home for his
parenting time, Andrew’s failure to show up for parenting time on occasion, and Andrew’s failure
to address Drew’s mental health issues. Brief for appellant at 16. Angela points to Drew’s anxiety
and behavior problems to excuse her “emergency medical decision” to not force him to go on the
2019 Colorado vacation, fearing that such would create significant mental issues for him. Brief for
appellant at 17. Angela further maintains that she had no choice but to give Drew’s allegations of
physical abuse some credence. In her arguments, Angela refers to some evidence about things that
occurred after the court found her in contempt, but we have focused our review on only on the
evidence adduced at the 2019 contempt proceeding.
As noted above, the district court resolved the conflicting evidence in Andrew’s favor, and
we have accepted the court’s factual findings in this regard. Further, the evidence is clear that
Andrew did not receive parenting time with Drew for an extended period beginning in about April
2019. Upon our review, we cannot say that the court erred in finding that Angela willfully violated
the court order. Accordingly, the court did not abuse its discretion in finding Angela to be in
contempt of court.
(b) Sanctions
Next, Angela assigns error to the sanctions imposed by the district court, arguing that they
were punitive, excessive, and an abuse of discretion. She compares the imposition of a jail sentence
with a purge plan and assessment of attorney fees against her to the “slap on the wrist” imposed
against Andrew. Brief for appellant at 20. Angela further points to the lack of evidence that she
has sufficient income to pay this expense despite the court’s finding that she has the capacity to
work full time at minimum wage. Angela asserts that in order to comply with the sanctions, she
would have to enter the job market at the peak of a global pandemic, and she is a person at high
risk with a history of respiratory illness and immune deficiency. Angela does not direct us to
evidence to supporting her argument about her health concerns, although we note that in the August
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2020 hearing on Angela’s motion for new trial, her attorney addressed similar arguments, stating
“the reality is is [sic] a person at risk.” Her attorney also argued that “with the current economic
climate, it’s simply not feasible for her to come up with a large sum by a short period” and that
spreading the payment in installments would “make it more feasible for her to do so and address
these issues.”
Clearly, the district court considered the arguments presented at the new trial motion
hearing; it modified the purge plan as described in the background section above. The court also
determined Angela’s contempt, which had resulted in Andrew not having parenting time for
several months, was more egregious than Andrew’s. We agree with the court’s assessment and
find no abuse of discretion in its imposition of sanctions against Angela.
2. MODIFICATION
Ordinarily, custody and parenting time of a minor child will not be modified unless there
has been a material change in circumstances showing that the best interests of the child require
modification. Lindblad v. Lindblad, 309 Neb. 776, 962 N.W.2d 545 (2021). Modifying a custody
or parenting time order requires two steps of proof. Id. 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. Id.Second, the party seeking modification must prove that changing the child’s custody or parenting
time is in the child’s best interests. Id. 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 or prior modification, would have persuaded the court to decree differently. Id.(a) Material Change in Circumstances
Angela does not challenge the district court’s finding that a material change in
circumstances had occurred in this case. Nevertheless, for the sake of completeness, we find the
record supports such finding. The record reflects unanticipated changes in the relationship between
Drew and Andrew beginning in April 2019 as well as in Drew’s behavioral and mental health and
school attendance. In addition, the record supports a finding of a material change of circumstances
warranting the modification of child support given the modification of physical custody and the
rebuttable presumption set forth in Neb. Ct. R. § 4-217 (variation by 10 percent or more of current
child support obligation). Next, we turn to the second prong of the analysis, the best interests of
the child.
(b) Best Interests
When determining the best interests of the child in the context of custody, a court must
consider, at a minimum, (1) the relationship of the minor child to each parent prior to the
commencement of the action; (2) the desires and wishes of a sufficiently mature child, if based on
sound reasoning; (3) the general health, welfare, and social behavior of the child; (4) credible
evidence of abuse inflicted on any family or household member; and (5) credible evidence of child
abuse or neglect or domestic intimate partner abuse. Jones v. Jones, 305 Neb. 615, 941 N.W.2d
501 (2020). See Neb. Rev. Stat. § 43-2923(6) (Reissue 2016). Other relevant considerations
include stability in the child’s routine, minimalization of contact and conflict between the parents,
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and the general nature and health of the individual child. Jones v. Jones, supra. No single factor is
determinative, and different factors may weigh more heavily in the court’s analysis, depending on
the evidence presented in each case. Id.Angela argues that the district court abused its discretion in finding that it was in Drew’s
best interests to modify custody and parenting time. Angela points to Drew’s mental health issues,
including ADHD, anxiety, and a mild learning disability. She asserts that she is the more
empathetic and concerned parent, and is better able to deal with these issues. In contrast, she
describes Andrew as verbally abusive toward Drew and dismissive of his struggles. In changing
custody to joint physical custody with an alternating weekly schedule, Angela argues that the court
disregarded Drew’s struggles with school, as well as McNeese’s expert testimony that a drastic
change would be detrimental to Drew’s best interests.
It is clear from the record that the parties have different parenting styles. It is also clear that
Drew has many issues and that the parties will need to work together closely to successfully parent
him. However, the record shows that counseling with the new therapist was going well and that
the relationship between Drew and Andrew had already improved by the time of the modification
trial. The week-on-week-off parenting time schedule had been working well during the summer of
2020, and while Angela expressed concerns about whether it would work as well during the school
year, such a schedule will minimize the number of transitions Drew must make between
households and provide consistency in his routine that was perhaps lacking following the addition
of some mid-week parenting time in 2019. The parties have had an antagonistic relationship in the
past, but they both testified that they could communicate effectively to parent Drew in the event
of custody changes. And, finally, as noted previously, the district court resolved conflicting
evidence in Andrew’s favor, and we defer to its determinations in that regard. See Yori v. Helms,
307 Neb. 375, 949 N.W.2d 325 (2020). We find no abuse of discretion in the court’s finding that
a modification of custody and parenting time was in Drew’s best interests.
(c) Child Support and Related Expenses
Angela also asserts that the district court abused its discretion in modifying child support
and child related expenses. Presumably, this portion of her assigned error was tied to her argument
that the court abused its discretion in modifying custody and parenting time, and we have already
found above that the court did not abuse its discretion in that regard. Angela does not present any
arguments specifically addressed to this portion of her assignment of error, and we do not address
it further, except to note that the cash medical support was ordered in 2015 because health
insurance was not available at that time and it was clearly available at the time of the current
modification trial. See Korth v. Korth, 309 Neb. 115, 958 N.W.2d 683 (2021) (to be considered by
appellate court, alleged error must be both specifically assigned and specifically argued in brief of
party asserting error).
3. ANDREW’S REQUEST FOR ATTORNEY FEES
Before concluding, we note that Andrew argues in his brief that Angela’s arguments are
wrong in law and fact, without factual or legal support, and/or meritless or frivolous and that he
should therefore receive an award of attorney fees under Neb. Rev. Stat. § 43-1412(3) (Reissue
2016). As a general rule, attorney fees and expenses may be recovered in a civil action only where
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provided for by statute or when a recognized and accepted uniform course of procedure has been
to allow recovery of attorney fees. Id. Attorney fees and costs are statutorily allowed in paternity
and child support cases. Wolter v. Fortuna, 27 Neb. App. 166, 928 N.W.2d 416 (2019). See
§ 43-1412(3). Because Andrew is the prevailing party, he is entitled to attorney fees on appeal.
Our rules of appellate procedure require those seeking the award of such relief to file a motion
supported by an affidavit justifying the amount sought “no later than 10 days after the release of
the opinion of the court or the entry of the order of the court disposing of the appeal, unless
otherwise provided by statute.” Neb. Ct. R. App. P. § 2-109(F) (rev. 2021). If Andrew wishes to
pursue an award of attorney fees and costs under § 42-1412(3), he may file such a motion in
accordance with the rule set forth above.
VI. CONCLUSION
The district court did not abuse its discretion in finding Angela in contempt or in imposing
sanctions against her. Likewise, it did not abuse its discretion in modifying custody and parenting
time.
AFFIRMED.
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