deBoer v. deBoer

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/28/2017 09:10 AM CDT
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Nebraska Court of A ppeals A dvance Sheets
24 Nebraska A ppellate R eports
DEBOER v. DEBOER
Cite as 24 Neb. Ct. App. 612
Jennifer deBoer, now known as
Jennifer Dunford, appellee, v.
Henk deBoer, appellant.
___ N.W.2d ___
Filed March 28, 2017. No. A-16-163.
1. Contempt: Appeal and Error. In a civil contempt proceeding where
a party seeks remedial relief for an alleged violation of a court order,
an appellate court employs a three-part standard of review in which (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.
2. Contempt. Civil contempt proceedings are instituted to preserve and
enforce the rights of private parties to a suit when a party fails to com-
ply with a court order made for the benefit of the opposing party.
3. Contempt: Presumptions: Proof. Outside of statutory procedures
imposing a different standard or an evidentiary presumption, all ele-
ments of contempt must be proved by the complainant by clear and
convincing evidence.
4. Rules of Evidence: Contempt. The Nebraska Evidence Rules apply
generally to all civil and criminal proceedings, including contempt pro-
ceedings except those in which the judge may act summarily.
5. Contempt: Proof: Stipulations. In order to prove civil contempt, unless
the alleged contemptuous acts occurred within the presence of the judge,
or the parties stipulate otherwise, an evidentiary hearing is necessary
so that the moving party can offer evidence to demonstrate both that a
violation of a court order occurred and that the violation was willful.
Appeal from the District Court for Douglas County: Gary
B. R andall, Judge. Reversed and remanded for further
proceedings.
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Nebraska Court of A ppeals A dvance Sheets
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DEBOER v. DEBOER
Cite as 24 Neb. Ct. App. 612
C.G. (Dooley) Jolly, of Adams & Sullivan, P.C., L.L.O.,
for appellant.
No appearance for appellee.
R iedmann, Bishop, and A rterburn, Judges.
A rterburn, Judge.
INTRODUCTION
Henk deBoer appeals from an order of the district court
dismissing his contempt actions against his ex-wife, Jennifer
deBoer, now known as Jennifer Dunford, in the proceedings
to modify their decree of dissolution of marriage. On appeal,
Henk argues that the district court erred in dismissing his
applications for contempt without holding a full evidentiary
hearing and without providing him notice. Upon our review,
we determine that the district court erred when it dismissed
Henk’s contempt actions without holding an evidentiary hear-
ing. Accordingly, we reverse, and remand for an evidentiary
hearing on Henk’s applications for contempt.
BACKGROUND
Henk and Jennifer were married in 2002 and had two chil-
dren during their marriage. They divorced in 2010. Pursuant
to the decree of dissolution of marriage, Jennifer was awarded
primary physical custody of the children, subject to Henk’s
parenting time. The terms of Henk’s parenting time were set
forth in a parenting plan agreed to by the parties, the details of
which are not material to this appeal.
In October 2011, Jennifer filed a complaint to modify the
decree of dissolution. In particular, Jennifer claimed that there
had been a material change in circumstances in that Henk had
failed to comply with the parenting time schedule, had failed
to communicate with Jennifer regarding parenting time, had
abused alcohol in front of the children, and had left the state
with the children without providing notice to Jennifer. Jennifer
sought a reduction of Henk’s parenting time.
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DEBOER v. DEBOER
Cite as 24 Neb. Ct. App. 612
On October 31, 2011, Henk filed an answer to Jennifer’s
complaint to modify, denying the allegations therein. Henk
also counterclaimed, seeking (1) custody of the minor children
and (2) an order of contempt due to Jennifer’s denying him his
court-ordered parenting time. Later, in August and December,
2014, Henk also filed two separate applications for an order
to show cause why Jennifer should not be held in contempt,
claiming that Jennifer repeatedly denied his parenting time.
The transcript also contains references to an application for
contempt filed by Jennifer, but such a pleading is not contained
in the record before us.
On December 15, 2014, the district court entered an order
modifying the decree of dissolution. The order incorporated
a modified parenting plan which the parties had agreed to in
July 2013.
The same day the court issued its order of modification, it
also issued an order to show cause why Jennifer should not be
held in contempt for failing to abide by the parenting plan. The
court set the contempt matter for hearing on March 18, 2015.
No bill of exceptions from a March 18 hearing is contained in
the record before us.
On July 17, 2015, the court issued an “Order on Contempt.”
The order states that the court held a hearing on Henk’s and
Jennifer’s respective contempt actions on March 18, 2015.
The order states that “[t]he matter was heard in chambers.”
The court held that “[n]either [Jennifer] nor [Henk] shall be
found in willful and contumacious contempt at this time.” The
court made additional findings regarding summer parenting
time, health care reimbursement, and psychological evalua-
tions. The court ordered that the contempt actions filed by
both Henk and Jennifer would be continued to September
24, 2015.
The same day the court issued the “Order on Contempt,” it
also issued an amended order of modification. The amended
order states that it is being entered “[p]ursuant to [the] find-
ings indicated in the Court’s Order regarding contempt . . . .”
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DEBOER v. DEBOER
Cite as 24 Neb. Ct. App. 612
The court ordered custody and parenting time in accordance
with a parenting plan agreed to by the parties.
Although the contempt matters were initially set to be
heard on September 24, 2015, Henk filed a motion to continue
the hearing. The court rescheduled the contempt hearing to
December 15.
Before the rescheduled contempt hearing, Henk filed a
motion to set aside the “‘Order on Contempt’” entered on July
17, 2015. Henk argued that the hearing had been held off the
record, the court made no findings in support of its order, the
order included matters not before the court, and the order was
entered nearly 5 months after the hearing. Jennifer opposed
Henk’s motion to set aside.
The court issued its last order on January 11, 2016. It was
titled simply “Order” and stated, “THIS MATTER was before
the Court for hearing on the 15th day of December, 2015,
. . . on [Henk’s] Motion to Set Aside.” No bill of exceptions
from a December 15 hearing is contained in the record before
us, although one was requested in Henk’s praecipe for bill
of exceptions.
The January 11, 2016, order stated that its findings of fact
and conclusions of law were “[b]ased upon the pleadings,
[a]ffidavits submitted, and the arguments of counsel . . . .” The
only finding of fact the court made was that it had jurisdiction
over the parties and the subject matter of the action. The court
ordered Jennifer not to interfere with Henk’s parenting time
and to provide Henk with monthly documentation of medi-
cal expenses. The court also dismissed the parties’ respective
contempt actions.
Henk appeals from the dismissal of his contempt actions.
ASSIGNMENTS OF ERROR
Henk argues, restated, that the district court erred in dis-
missing his contempt actions without a full evidentiary trial,
without providing notice to him that it was considering
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DEBOER v. DEBOER
Cite as 24 Neb. Ct. App. 612
dismissing his contempt action, and based upon insufficient
factual findings.
We note that Henk does not assert an argument with respect
to his final assignment of error regarding the court’s allegedly
insufficient factual findings. To be considered by an appellate
court, an alleged error must be both specifically assigned and
specifically argued in the party’s brief. Griffith v. Drew’s LLC,
290 Neb. 508, 860 N.W.2d 749 (2015). Accordingly, we do not
address Henk’s last assignment of error.
STANDARD OF REVIEW
[1] 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. Hossaini v. Vaelizadeh, 283 Neb. 369, 808
N.W.2d 867 (2012).
ANALYSIS
Henk asserts error based on the failure of the district court to
conduct an evidentiary hearing on his contempt actions. Based
on our review of the record, no evidentiary hearing was held
on December 15, 2015, the hearing referenced by the January
11, 2016, order. That order did, however, dismiss Henk’s con-
tempt actions.
[2,3] 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. Martin v. Martin, 294 Neb. 106, 881
N.W.2d 174 (2016). Willful disobedience is an essential ele-
ment of contempt; “willful” means the violation was com-
mitted intentionally, with knowledge that the act violated the
court order. Id. Outside of statutory procedures imposing a
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DEBOER v. DEBOER
Cite as 24 Neb. Ct. App. 612
different standard or an evidentiary presumption, all elements
of contempt must be proved by the complainant by clear and
convincing evidence. Id.
[4,5] The Nebraska Evidence Rules “apply generally to all
civil and criminal proceedings, including contempt proceedings
except those in which the judge may act summarily.” Neb. Rev.
Stat. § 27-1101(2) (Reissue 2008). This leads us to the conclu-
sion that in order to prove civil contempt, unless the alleged
contemptuous acts occurred within the presence of the judge,
or the parties stipulate otherwise, an evidentiary hearing is
necessary so that the moving party can offer evidence to dem-
onstrate both that a violation of a court order occurred and that
the violation was willful. See Martin v. Martin, supra. Unless
the alleged contemptuous acts occurred within the presence of
the judge, or the parties stipulate otherwise, evidence must be
adduced to prove both elements. See id.
While the order of the district court does recite that its
findings are based upon the pleadings, affidavits submitted,
and arguments of counsel, there is no indication in the record
that any “evidence” was offered and received. Affidavits
“submitted” do not necessarily equate to affidavits offered
and received. And there is no indication in the record that
the parties agreed to submit the contempt actions to the
court without an evidentiary hearing. To the contrary, Henk’s
appeal is based upon the argument that no evidentiary hearing
was permitted.
We are cognizant that in Sempek v. Sempek, 198 Neb. 300,
252 N.W.2d 284 (1977), the Supreme Court reviewed a con-
tempt finding wherein the hearing did not include sworn testi-
mony. The court found, however, that the parties had agreed to
submit the matter to the district court in summary fashion on
the oral statements of counsel. There is nothing in the record of
the present case indicating a similar agreement. Consequently,
the rules of evidence did apply.
Because we determine that the contempt proceeding
required proof of willful disobedience, the district court erred
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DEBOER v. DEBOER
Cite as 24 Neb. Ct. App. 612
in failing to hold an evidentiary hearing. Therefore, the order
of dismissal must be reversed and the cause remanded for an
evidentiary hearing on Henk’s contempt actions.
Because we determine that the court’s error in not conduct-
ing an evidentiary hearing on December 15, 2016, requires
reversal, we need not reach the question of whether sufficient
notice was given to Henk that the district court was consider-
ing the contempt actions for dismissal. An appellate court is
not obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it. Flores v. Flores-
Guerrero, 290 Neb. 248, 859 N.W.2d 578 (2015).
CONCLUSION
The district court’s failure to conduct an evidentiary hearing
relating to Henk’s applications for contempt constitutes error.
Accordingly, we reverse the district court’s order dismissing
Henk’s contempt actions and remand the cause for an eviden-
tiary hearing on the matter.
R eversed and remanded for
further proceedings.