993 N.W.2d 688
Neb. Ct. App.2023Background
- Jeff and Ashley Hawks divorced after Jeff’s 4½-year incarceration; the decree incorporated a parenting plan anticipating Jeff’s continued incarceration and required Ashley to transport children for visits during incarceration.
- After Jeff’s release, he sought more parenting time; the court entered temporary supervised parenting-time orders (Dec. 2020; amended July 2021) initially requiring Jeff to pay supervision fees but later requiring Ashley to reimburse fees for any child who missed a visit.
- Jeff alleged dozens of missed visits (claims ranging from 25 to 69 instances) and sought contempt and attorney fees; Ashley was ordered to show cause.
- Evidence at trial: Ashley generally transported and encouraged the children to attend, therapists advised against forcibly removing children, children resisted due to strained relationship after incarceration, and Ashley missed reimbursement of $1,460 for supervision fees.
- The district court found Ashley not in willful contempt for interfering with parenting time, but found her in willful contempt for failing to reimburse $1,460; the court modified supervision to allow family supervisors and allocated attorney fees between the parties (ordering Jeff to pay a net $15,890 to Ashley after offsets).
- Jeff appealed, challenging (1) the denial of contempt for missed parenting time and (2) the award requiring him to pay a portion of Ashley’s attorney fees.
Issues
| Issue | Plaintiff's Argument (Jeff) | Defendant's Argument (Ashley) | Held |
|---|---|---|---|
| Whether Ashley was in contempt for interfering with Jeff’s parenting time | Ashley permitted children to decide and repeatedly let them refuse, causing numerous missed visits and willful disobedience of court-ordered parenting time | Ashley transported and encouraged the children, cooperated with therapy, attempted transitions, and did not willfully forbid visits or use force | Affirmed: Not in willful contempt — complainant failed to prove willfulness by clear and convincing evidence; facts likened to Rodas v. Franco |
| Whether court could order Jeff to pay a large portion of Ashley’s attorney fees for bringing the modification/contempt action | Jeff’s claims were not frivolous; he legitimately sought enforcement after many missed visits, so he should not be assessed fees absent a contempt finding against him | District court concluded Jeff’s parenting-time claim lacked merit and awarded Ashley 90% of her fees while awarding Jeff a small fee for Ashley’s contempt for unpaid supervision fees | Reversed: Court abused discretion — Nebraska law permits attorney fees in contempt only against a party found in contempt or where action is frivolous; Jeff was neither in contempt nor found frivolous; remand to vacate that fee award |
| Validity of purge plan and allocation/offset of fees given fee award reversal | (Implicit) Jeff relied on offset calculation in court’s order | District court reduced Jeff’s obligation by Ashley’s assessed obligations and declared she purged contempt, avoiding jail | Remanded: Vacate portions ordering cross-fees and Ashley’s purge; district court to reconsider and enter a new order on Ashley’s liability for Jeff’s fees (if any) and an appropriate purge plan, consistent with statute and this opinion |
Key Cases Cited
- Cech v. Cech, 30 Neb. App. 618, 971 N.W.2d 801 (Neb. App. 2022) (three-part standard of review for civil contempt: law de novo, facts for clear error, contempt/sanction for abuse of discretion)
- Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (Neb. 2012) (willful disobedience is essential element of civil contempt)
- Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (Neb. 2010) (burden to prove contempt by clear and convincing evidence absent statutory exception)
- Krejci v. Krejci, 304 Neb. 302, 934 N.W.2d 179 (Neb. 2019) (custodial parent not held in contempt where she did not encourage child to refuse visitation)
- Martin v. Martin, 294 Neb. 106, 881 N.W.2d 174 (Neb. 2016) (contempt affirmed where custodial parent consistently deferred visitation decisions to children)
- Rodas v. Franco, 30 Neb. App. 910, 974 N.W.2d 856 (Neb. App. 2022) (reversed contempt where custodial parent encouraged attendance and followed therapist guidance despite frequent refusals)
- Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (Neb. 2014) (attorney fees recoverable only by statute or established procedure)
- Nathan v. McDermott, 306 Neb. 216, 945 N.W.2d 92 (Neb. 2020) (definition of frivolous action for fee-shifting statutes)
- In re Estate of Forgey, 298 Neb. 865, 906 N.W.2d 618 (Neb. 2018) (appellate review standard for attorney-fee awards)