Vesper v. Francis, A-16-442

Parents: Bruce Vesper (father) and Dawn Francis (mother) are the biological parents of Alexander (b. Sept. 2011). They never married. A November 2012 order established paternity, awarded custody to Francis, and set a parenting plan with scheduled weekend and midweek visitation and police-station exchanges in Fremont.
Vesper appealed the 2012 custody determination; this court previously affirmed that decision.
In July 2015 Vesper filed (1) an application to modify custody alleging material changes (interference with parenting time, exclusion from medical/educational decisions, hostile exchanges, and exclusion from speech therapy), and (2) a citation for contempt for specific alleged violations of the parenting plan. Francis answered and counterclaimed seeking changes to transportation and summer provisions.
Trial (March 2016) revealed disputed missed/shortened visits (some explained by summer scheduling, disputes over holiday hours, or reciprocal late returns), communication problems, and hostility between parties; much evidence showed Vesper had received regular school/medical contacts and attended many sessions.
The trial court denied modification, dismissed the contempt citation (finding Vesper failed to prove willful violations by clear and convincing evidence), adjusted exchange locations for drop-off/pick-up, and denied attorney fees; Vesper’s motion for new trial was overruled.

Issue	Plaintiff's Argument (Vesper)	Defendant's Argument (Francis)	Held
Whether Francis was in civil contempt for violating the parenting plan	Francis willfully denied or shortened parenting time and excluded him from medical/educational matters	Denials/shortenings were explained (summer blocks, holiday disputes, reciprocal late returns, weather); she provided school/medical notice and access	No contempt; Vesper failed to prove willfulness by clear and convincing evidence
Whether custody should be modified to award Vesper legal and physical custody	Persistent interference and exclusion constitute a material change in circumstances making award to Vesper in child’s best interest	No material change; Vesper remained involved and missed visits were largely justified or explained	No modification; trial court did not abuse discretion
Whether modifying parenting plan allocation of transportation (court shifted some transport obligations to Vesper) was erroneous	(Assigned but not argued)	Francis sought change to reduce burden and conflicts in exchanges	Issue not addressed on appeal because Vesper did not argue it
Whether Vesper is entitled to attorney fees (for modification or as contempt sanction)	Fees warranted because of contempt and need to litigate modification	Fees inappropriate absent finding of contempt or successful modification	Denied; fees require a contempt finding or successful claim; none proved

Sickler v. Sickler, 293 Neb. 521 (2016) (standard and elements for civil contempt; willfulness and clear-and-convincing proof required)
Kenner v. Battershaw, 24 Neb. App. 58 (2016) (custody modification standard—material change in circumstances; appellate deference to trial court)
Pohlmann v. Pohlmann, 20 Neb. App. 290 (2012) (appellate deference when trial court resolves conflicting witness credibility)
Cross v. Perreten, 257 Neb. 776 (1999) (authority on awarding attorney fees in paternity/child support matters)
McDonald v. McDonald, 21 Neb. App. 535 (2013) (discussing attorney fees in family/parentage litigation)
Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661 (2010) (attorney fees may accompany contempt sanctions; fees contingent on contempt finding)
Jessen v. Line, 16 Neb. App. 197 (2007) (standard of review for attorney-fee awards in paternity actions)
Pierce v. Landmark Management Group, Inc., 293 Neb. 890 (2016) (issue preservation: appellate court will not consider assignments not argued)
Hossaini v. Vaelizadeh, 283 Neb. 369 (2012) (discusses limits/clarifications on remedies from prior contempt/fee decisions)