889 N.W.2d 624
Neb. Ct. App.2017Background
- David and Jaime Patera are divorced parents of two children, Karissa and Joseph; Jaime has primary physical custody and David has scheduled parenting time.
- In July 2015 Karissa attended an out-of-state softball tournament and a church camp during periods that fell within David’s court‑ordered parenting time.
- David filed a motion to show cause alleging Jaime willfully violated the parenting plan by allowing Karissa to attend those events without compensating him with traded parenting days.
- After a bench trial the district court found Jaime in civil contempt, sentenced her to 7 days incarceration, and allowed her to purge contempt by giving David 7 days of uninterrupted parenting time with Karissa; the court awarded David $250 in attorney fees.
- David moved for a new trial arguing he was entitled to compensation for lost time with both children and additional parenting time beyond what was missed, and to full attorney fees; the court denied the motion.
- Both parties appealed: David challenged the scope of the purge order and the attorney‑fee award; Jaime cross‑appealed the contempt finding claiming David consented to the deviations.
Issues
| Issue | Plaintiff's Argument (David) | Defendant's Argument (Jaime) | Held |
|---|---|---|---|
| Whether Jaime was in contempt for denying David scheduled parenting time | David argued Jaime willfully denied his parenting time by letting Karissa attend events during his time | Jaime argued David consented (via emails/discussions) so any deviation was not willful | Court affirmed contempt finding: evidence showed no agreement to trade days and denial was willful; finding reviewed for abuse of discretion and upheld |
| Scope of purge remedy — whether purge must include both children | David insisted remedy should restore missed time with the family as a whole (Karissa and Joseph) | Jaime argued compensation for the actual missed time with Karissa was appropriate | Court held purge order compensating only for the 7 days David actually missed with Karissa was not an abuse of discretion |
| Whether additional parenting time should be awarded as coercive remedy | David sought extra days beyond those missed to deter future noncompliance | Jaime opposed awarding extra or speculative time | Court declined extra time; remedy limited to compensating actual missed parenting time |
| Attorney fees — whether Jaime must pay full requested fees ($2,500) | David sought full fees as costs of contempt proceeding | Jaime argued partial award appropriate given outcome | Court upheld partial award ($250) as reasonable given only partial success for David; fee amount reviewed for abuse of discretion |
Key Cases Cited
- Sickler v. Sickler, 293 Neb. 521 (2016) (standard of review and requirements for civil contempt; willful disobedience and clear‑and‑convincing proof)
- Gonzalez v. Union Pacific RR. Co., 282 Neb. 47 (2010) (trial court has discretion in awarding amount of attorney fees)
- Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661 (2010) (costs and reasonable attorney fees may be awarded in contempt proceedings)
- Belitz v. Belitz, 21 Neb. App. 716 (2014) (distinguishable case where ongoing discussions and lack of concrete return date supported denial of contempt)
- Hossaini v. Vaelizadeh, 283 Neb. 369 (2012) (discussed in relation to scope and limits of contempt remedies)
Decision: Affirmed.