deBoer v. deBoer
A-16-163
| Neb. Ct. App. | Mar 28, 2017Background
- Henk and Jennifer (now Dunford) divorced in 2010; Jennifer received primary custody and Henk had court-ordered parenting time under a parenting plan.
- Jennifer filed to modify custody in 2011; Henk counterclaimed for custody and filed multiple contempt applications alleging Jennifer denied his parenting time.
- The district court entered a modification order on December 15, 2014, and later issued an "Order on Contempt" (July 17, 2015) stating hearings occurred in chambers and continuing contempt matters.
- Henk moved to set aside the contempt order, arguing no evidentiary hearing was held, the proceedings were off the record, and findings were unsupported; hearings in the record for March and December 2015 lack bills of exceptions.
- On January 11, 2016, the court issued an order dismissing both parties’ contempt actions, stating findings were based on pleadings, affidavits, and argument, but the record lacks evidence that an evidentiary hearing occurred.
- Henk appealed the dismissal, arguing the court erred by disposing of contempt applications without an evidentiary hearing, adequate notice, or sufficient findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court may dismiss civil contempt claims without an evidentiary hearing | Henk: dismissal was improper because no evidentiary hearing was held and contempt requires proof of willful disobedience by clear and convincing evidence | Jennifer: court relied on pleadings, affidavits, and counsel arguments; impliedly that summary disposition was adequate | Reversed — district court erred; an evidentiary hearing is required absent courtroom presence or a stipulation to summary disposition |
| Whether notice or sufficiency of findings justified dismissal | Henk: alleges insufficient notice that the court would dismiss contempt and inadequate factual findings | Jennifer: not argued in detail on appeal | Not reached — appellate court reversed on hearing requirement and did not decide notice/finding sufficiency |
Key Cases Cited
- Hossaini v. Vaelizadeh, 283 Neb. 369 (Neb. 2012) (three-part review standard for civil contempt: law de novo, facts for clear error, contempt/sanction for abuse of discretion)
- Martin v. Martin, 294 Neb. 106 (Neb. 2016) (willful disobedience is essential element of civil contempt; complainant must prove contempt by clear and convincing evidence)
- Sempek v. Sempek, 198 Neb. 300 (Neb. 1977) (court may resolve contempt summarily when parties agree to submit matter on oral statements of counsel)
- Flores v. Flores-Guerrero, 290 Neb. 248 (Neb. 2015) (appellate courts need not address issues unnecessary to disposition)
- Griffith v. Drew’s LLC, 290 Neb. 508 (Neb. 2015) (errors must be both assigned and argued to be considered on appeal)