IN THE NEBRASKA COURT
OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
GRIEPENSTROH
V.
PROCTOR
NOTICE: THIS OPINION
IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS
PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
ANDREW
GRIEPENSTROH,
APPELLEE,
V.
ANGELA PROCTOR, FORMERLY
KNOWN AS ANGELA CLARK, APPELLANT.
Filed November 2,
2021. No. A-20-738.
Appeal from the District Court for
Otoe County: JULIE D. SMITH, Judge. Affirmed.
Adam
R. Little, of Ballew Hazen, P.C., L.L.O., for appellant. W.
Gregory Lake, of Nebraska Legal Group, for appellee.
PIRTLE, Chief Judge, and MOORE
and WELCH,
Judges.
MOORE, Judge.
I. INTRODUCTION
Angela Proctor
appeals from the order of the district court for Otoe County, which found her
in contempt and imposed sanctions against her, and which modified the court’s previous
orders regarding custody, parenting time, and child support. Finding no abuse
of discretion, we affirm.
II. STATEMENT
OF FACTS
1.
PATERNITY
ORDER
Andrew Griepenstroh
and Angela are the parents of a minor son, Drew, born in 2008. In 2011, an
order was entered establishing paternity, custody, and parenting time. In 2015,
an order was entered modifying the paternity decree. The 2015 order and parenting
plan provided that Angela would have legal and physical custody, and it also
provided that the parents would consult with each other regarding major
decisions affecting Drew’s development or well-being; were to make mutual
medical and dental decisions for Drew, except under emergency circumstances;
and would keep one another informed regard to his educational progress. The
parenting plan provided that Andrew would have parenting time the first three
weekends of each month from 6:30 p.m. Friday to 6 p.m. Sunday and summer
parenting time every other week during June and July and the first week in
August; it also specified a holiday parenting time schedule. The 2015 order
required Andrew to pay $500 per month in child support and cash medical support
of $126 per month (because health insurance was not available at a reasonable
cost and/or not accessible at that time).
2. COMPLAINT FOR MODIFICATION
On June 3, 2019,
Andrew filed a complaint for modification, seeking sole legal and physical
custody of Drew, or in the alternative, joint physical and sole legal custody,
as well as the determination of a parenting plan, child support and division of
childcare, extracurricular activities, and unreimbursed medical expenses, and
attorney fees. Andrew alleged that since the entry of the previous order, the
following material circumstances had occurred: Angela had not allowed the
ordered parenting time, Drew had missed an excessive amount of school, Angela
would not allow Drew to participate in extracurricular activities, Angela did
not communicate with Andrew regarding Drew’s medical or dental visits, and
Angela was taking Drew to the doctor excessively. Andrew alleged that Drew’s
best interests required a change in the order regarding custody, support, and
parenting time.
3.
ANDREW’S CONTEMPT
ACTION
AND OTHER
PLEADINGS
On July 23, 2019,
Andrew filed a motion for order to show cause, alleging that Angela should be
found in willful contempt of the 2015 order for failing to communicate with him
and involve him regarding Drew’s medical treatment, for failing to inform
Andrew regarding Drew’s school attendance, for failing to adhere to the
parenting time provisions, and in failing to cooperate in telephone contact
between Andrew and Drew.
On July 26, 2019,
Angela filed an answer to Andrew’s complaint and a counter-complaint for
modification, in which she alleged that a material change in circumstances had
occurred, that Andrew’s parenting time should be suspended “due to [Andrew’s]
parenting abilities and the psychological/emotional needs of [Drew],” and that
a mutually agreeable parenting plan as provided in the Parenting Act had not
been developed. Angela also sought a modification of child support and
contribution toward child related expenses, and attorney fees. Andrew, in his
reply, denied the allegations of the counter-complaint.
At an October 8,
2019, hearing scheduled on Andrew’s motion for contempt, Angela sought a
continuance due to the unavailability of one of her witnesses (there had been a
suggestion prior to the hearing that the witness might be in violation of Neb.
Rev. Stat. § 28-711 (Reissue 2016) (obligation to report child abuse or
neglect)). The district court found good cause to continue the hearing over
Andrew’s objection, and the show cause hearing was continued to October 21. The
court also addressed a motion filed by Angela with respect to parenting time.
The court ordered specific parenting time for Andrew “each Wednesday” from 5
p.m. to 8 p.m. and on Sunday, October 13, and Sunday, October 20, with the
Sunday visits occurring from 8 a.m. to 5 p.m. These visits were to be
supervised by Andrew’s mother. The court also granted a request by Angela for a
parenting evaluation.
The district court
heard Andrew’s contempt motion on October 21 and 22, 2019. The court received
various exhibits offered by the parties, including copies of text messages
exchanged by the parties, attorney fee affidavits, school attendance reports
for Drew, and a written statement from Drew’s therapist. The court heard
testimony from the parties, Andrew’s mother and his girlfriend, and Drew’s
therapist. The court also heard in camera testimony from Drew. Drew’s testimony
has been sealed, and while we have reviewed and considered his testimony in our
de novo review of the record, we will not recount it here. At the close of
Andrew’s evidence, Angela made a motion for directed verdict, and the court
granted her motion with respect to the allegations about her failure to
communicate about school absences and medical issues, holiday parenting time,
and telephone calls with Drew. The court found that Andrew had presented enough
evidence with regard to the denial of his parenting time to avoid Angela’s
motion for directed verdict. Accordingly, we have only summarized below the
evidence with respect to that issue.
Andrew lives about
five houses away from Angela and her husband. Andrew stopped receiving his
regular weekend parenting time with Drew in April 2019. He also confirmed that
he did not receive his holiday or summer parenting time and that Drew had not
gone on a Colorado family vacation trip with Andrew, a trip which Drew had gone
on in previous years. Andrew did not know of anything particular that prompted
the cessation of his parenting time, although he referenced allowing Drew to
miss parenting time on a few occasions to spend time with his half-brothers and
cousins, which then “turned into a lot more times,” despite Andrew’s efforts to
“get him to come over.” He also testified about an instance in March when he
and his girlfriend went bowling with Drew, which was the first time Drew met
the girlfriend, but according to Andrew, they all had fun. Text messages
between the parties reflect that Angela informed Andrew that she was not
sending Drew on the Colorado trip with Andrew based on how “it has affected
[Drew] mentally” and the fact that Drew “wouldn’t eat and was not sleeping due
to the anxiety of it.”
Andrew testified
about his four supervised visits with Drew in the 2 previous weeks, describing
them as “great” and later as having “been fine.” Andrew testified that the
night before his testimony, he had been visited by law enforcement and accused
of child abuse (based on a bruise on Drew’s arm and Drew’s statement that
Andrew hit him). Andrew denied hitting Drew. Andrew offered as an exhibit
Drew’s attendance records he received from Drew’s school, documenting that Drew
had 48.875 absences during the 2018-2019 school year. Reasons for the absences
documented on the exhibit include “not feeling well,” “fever,” “diarrhea,” “flu,”
“stomach ache,” “appendix?,” “vomiting [sic],” “migraine,” “concussion,”
“headache,” leaving for various doctor appointments, “refusing to come to
school,” and “absent per mom.” When asked about his awareness of Drew’s medical
conditions, Andrew testified, “I guess he has ADHD and [is] allergic to
everything and trees and cats and whatever else.” Andrew did not know the names
of Drew’s medications, but he agreed that Drew takes “an ADHD medication” and
“some sort of sleeping medication.” He also testified that Drew had seen
various therapists, some of whom Andrew had met. When asked about the
anticipated testimony of Drew’s current therapist, Andrew again denied ever
abusing Drew, stating, “I’ve never even spanked him.”
In their testimony,
Andrew’s mother and his girlfriend both denied ever seeing Andrew physically
abuse Drew. Andrew’s mother confirmed that she and her family have almost
always taken a summer vacation and that Drew had always gone with them prior to
2019.
Before her
testimony, the district court advised Drew’s therapist, Jenina Lepard, of her
right not to testify. Lepard began seeing Drew near the end of July 2019, after
Angela contacted her and expressed concerns about Drew having anxiety and anger
issues. Lepard had been seeing Drew weekly since July 23. She testified that
Angela had been present during all of her sessions with Drew at Drew’s request.
Lepard testified to her belief that Drew suffered from those issues (anxiety
and anger), indicating Drew had repeatedly expressed having anxiety upon seeing
Andrew. She felt medication was necessary to help treat Drew’s issues, and she
testified that his medication was not just for his anxiety, but also for
“migraines, immune deficiency, ADHD, allergies.” She testified that Drew
reported to her that Andrew had struck him or been otherwise physically abusive
on multiple occasions and that this was a frequent topic during her sessions
with Drew. According to Lepard, it would be beneficial for Drew to see Andrew
in a therapeutic environment. She noted that concerns had been raised to her
about Drew not eating, not sleeping well, and having migraines. Lepard
testified that many of those issues were tied to Drew’s anxiety and directly
related to Andrew’s “behavior.” She believes Drew will continue to suffer these
symptoms if alone with Andrew for an extended period.
According to Lepard,
Drew reported physical abuse to her during their first session on July 23,
2019, but she did not report that abuse until about 2 weeks prior to her
testimony during the October 21 hearing (after the continuance on October 8).
She stated that she did not make a report on July 23 because the abuse reported
at that time “was in the past.” Lepard testified that she made a report to
Child Protective Services the morning of her testimony because of Drew’s
reports of “extreme anxiety during and after” the recent visits with Andrew and
his concern that he would be abused. She testified that “[her] training
prepare[d] [her] to detect lies” and that she was “pretty good at it.”
Angela testified
that Drew has been diagnosed with asthma, allergies, ADHD, depression,
separation anxiety, and a sleeping disorder. She indicated that the parties
successfully coparented Drew prior to when the present case was filed.
According to Angela, Andrew would sometimes allow Drew to decide whether he
wanted to attend his parenting time. She also testified that Andrew would
occasionally not show up for his parenting time, which affected Drew
negatively. Angela testified that Drew’s behavior started changing in September
2018. Between September 2018 and March 2019, Drew would sometimes call her
during visits; would be upset, crying, and ask her to pick him up; and that
Andrew “had no problem” with her doing so. Angela encouraged Drew to spend time
with Andrew and attend scheduled parenting time, but she witnessed more
behavioral problems from him in March or April 2019. She described his behavior
when “very anxious,” stating that he would cry, he would sometimes scream
“don’t send me,” and it was “like he was climbing the wall.” She also indicated
that he would not eat or sleep, would “withdraw,” and that his anxiety was
affecting his school performance. Angela testified that Andrew’s summer
vacation time (for the Colorado trip) caused Drew so much anxiety that she made
“an emergency medical decision” to keep him at home. Angela admitted that she
had accused the father of Drew’s half-brothers of mentally and physically
abusing their children and that she did not have custody of those children.
On October 25, 2019, the district
court entered an order, finding by clear and convincing evidence that Angela
was in willful contempt of the parenting plan by failing to provide Andrew with
his regular weekend parenting time and summer parenting time between April and
July 23.
In its order, the court made detailed findings about both
Lepard’s and Drew’s testimony. The court found that Lepard’s testimony was not
credible for numerous reasons, including her conduct and demeanor while
testifying and inconsistencies in her testimony about what Drew disclosed and
when he made those disclosures. The court also expressed its concerns with
Drew’s testimony, including:
[I]nstance(s) in which it was clear that Drew was not using
his own words, using words he could not pronounce or words of which [he] did
not know the meaning; instance(s) in which what Drew said occurred which simply
could not have occurred without causing results which did not materialize; and
instance(s) in which Drew paused for a lengthy amount of time before answering,
indicating to the court that perhaps he wanted to give a different answer but
thought he shouldn’t. However, even if the
court were to take all of Drew’s testimony
as true, [Angela] would still be in willful contempt of the court’s
[November 2015 order] for failure to require Drew to go to his father’s house
for his regular weekend parenting time between April 2019 and July 23 . . . as
well as the family trip to Colorado between July 14 . . . and July 21. . . .
(Emphasis in original.) The court went on to note that
while there was testimony that Drew experiences anxiety and did not want to
attend parenting time with Andrew, Drew did not make any allegations of abuse
to Angela, Lepard, or anyone else prior to July 23. The court noted Angela’s
testimony that between April and July 23, although she and her husband
encouraged Drew to attend parenting time with Andrew, she left it up to Drew, who
was then 10 years old, whether to do so. The court stated, “[Angela] has a duty
not only to encourage a ten-year-old to go to his father’s parenting time; she
has a duty to require it.” The court also stated, “[s]urely that was possible,”
given that Angela had required Drew to attend parenting time with Andrew four
separate times between October 8 and 21. The court found the fact that Andrew
had voluntarily relinquished some of his parenting time in the past to allow
Drew to spend time with his half-brothers was not a defense. Although the court
found Angela in contempt of the parenting time provisions of the parenting
plan, due to Drew’s “recent allegations of abuse by [Andrew],” the court did
not impose a sanction against Angela at that time. Rather, the court ordered
that the sanction hearing be held at the time of trial for the modification
action.
On December 12,
2019, the district court entered a temporary order, addressing a motion for
temporary allowances filed by Andrew and a motion to suspend parenting time
filed by Angela. The court noted evidence that Andrew had been receiving his
regular parenting time since entry of the contempt finding against Angela and
that Andrew had installed cameras in his home in response to the allegations of
child abuse. Next, the court noted an incident in November when police showed
up at a hotel where Andrew and Drew were staying after Drew spent some time on
the telephone while in the bathroom. The officers assessed the situation and
made no arrest; Angela eventually picked Drew up from the hotel. Finally, the
court noted evidence that Drew had snuck out of Andrew’s residence and returned
to Angela’s on other occasions during Andrew’s parenting time and that law
enforcement and the Department of Health and Human Services investigated an
accusation of child abuse in October and found that no abuse had occurred and
the allegation was “unfounded.” The court again noted its concerns about the
credibility of the testimony provided by Lepard and Drew at the time of the earlier
contempt hearing. While the court found there was no credible evidence that
Andrew had been physically abusing Drew, it did find that Drew was “extremely
distraught” and his behavior at both parental residences and at school had
deteriorated. The court stated, “There has been too much flexibility in the
parenting schedule, giving Drew the impression that parenting him is up to him
and creating stressors in Drew’s life,” and it noted the communication problems
between the parties and Drew. The court stated that the parties need to require
Drew to spend his parenting time with each party instead of leaving at will and
going to the house of his choice. The court denied Angela’s request to suspend
parenting time and also denied Andrew’s request to award him sole physical and
legal custody on a temporary basis. The court ordered the parties to comply
with the previous parenting plan subject to a temporary modification regarding
telephone contact. The court required both parties to provide 5 days’ written notice
before not exercising parenting time, forbade both parties from posing
questions to Drew which implied parenting time was up to him, and ordered the
parties to communicate in a meaningful way to coparent Drew.
4. ANGELA’S CONTEMPT ACTION, OTHER
MOTIONS,
AND MODIFICATION
TRIAL
On February 7, 2020,
Angela filed a motion for order to show cause, alleging that Andrew should be
held in contempt for alleged violations of the 2015 parenting plan and the
December 19, 2019, temporary order. Specifically, Angela alleged that Andrew
disparaged Angela in Drew’s presence, failed to exercise certain parenting time
as provided in the temporary order and did not provide the required notice,
left his parenting time decisions up to Drew, and repeatedly failed to meaningfully
communicate with Angela about issues necessary for coparenting.
At a hearing on
February 14, 2020, the district court considered various motions filed by the
parties. Although Andrew had not been served in the contempt action filed by
Angela, he entered a denial, and the court advised him of his rights. The court
scheduled final hearing on Angela’s contempt action for the same time as the
modification trial. The court also heard a motion for sanctions filed by Andrew
in his contempt action against Angela and Angela’s motion to dismiss that
motion.
In support of her
motion to dismiss Andrew’s motion for sanctions, Angela offered an affidavit,
in which she stated, among other things, that Andrew disparaged her in Drew’s
presence when she dropped Drew off for visitation on December 20, 2019; that
she received a phone call later that night indicating Drew had threatened to
attempt suicide, after which he was taken to the hospital for evaluation and
returned to Angela’s residence for the night, as recommended by the doctor; and
that Andrew then failed to exercise parenting time on additional dates in
December 2019 and January 2020. Angela attached text message correspondence of
the parties between December 19, 2019, and February 6, 2020, in support of her
allegations. Among the things documented in the text messages was the parties’
discussion of how to handle the fact that Drew had been returning to Angela’s
residence during his parenting time with Andrew. The parties’ discussion
reflects the lack of clarity at that point for whose responsibility it was to
return and/or pick up Drew in the event he ran away from Andrew’s home.
In discussing
Andrew’s motion for sanctions, the district court expressed concern about
Drew’s threat to harm himself, noted that it had not yet received the
previously ordered parenting evaluation, and declined to impose sanctions
against Angela at that point. Angela’s attorney asked the court to provide
clarification of the parties’ responsibilities for transportation on occasions
when Drew would run away from Andrew’s residence and return to Angela’s
residence. The attorneys also discussed with the court the parties’ efforts to
seek further mental health evaluation and treatment for Drew. The court made
further rulings based on those discussion that were memorialized in the court’s
subsequent order.
In its order
following the February 2020 hearing, the district court denied Angela’s motion
to dismiss. It also denied Andrew’s motion to impose sanctions against Angela
at that time for her willful contempt, stating that it would impose sanctions
against her after receiving evidence at the final hearing and after completion
of the previously ordered parenting evaluation. The court ordered the parties
to comply with all court orders then in effect, “including but not limited to
the exercise of parenting time.” The court also made several specific orders
relating to Drew. First, the court stated:
If Drew runs away from [Andrew’s] house during parenting
time, it is the responsibility of [Angela] to take Drew back to [Andrew’s]
house immediately. If [Angela] is more than 25 miles from Syracuse, Nebraska,
at the time, [Andrew] shall retrieve Drew from [Angela’s] home. For this
purpose, if [Angela] does not authorize [Andrew] to enter her home (with or
without the assistance of law enforcement) while she is not home, [Angela] will
be required to return to Syracuse, Nebraska, immediately, regardless of her
location to return Drew to [Andrew’s] home.
The court also ordered as follows:
The parties are ordered to take Drew to a psychiatrist. In
doing so, the parties are to make a mutual decision as to the provider and the
course of treatment for mental health. If the parties are unable to agree upon
a psychiatrist, [Andrew] has the final authority. Any expenses relating to the
cost of the psychiatrist which are not reimbursed by or covered by insurance
shall be shared equally between the parties.
Trial was held on
June 26 and 29, 2020, on the parties’ respective complaints for modification,
Angela’s motion for order to show cause, and for disposition regarding the
previous finding that Angela was in willful contempt. The court received
various documentary exhibits and heard testimony from witnesses including the
parties, a friend of Andrew’s, the psychologist who conducted the parenting
evaluation, and Andrew’s girlfriend. Much of the trial evidence was duplicative
of and consistent with evidence received at other hearings and noted above. We
have summarized relevant additional evidence below.
Andrew’s long-time
friend helped Andrew install video cameras in his residence because of the
abuse allegations against Andrew. No recordings from these cameras were
admitted into evidence. Andrew testified that he had deleted any recordings
from the cameras, but he denied that there had been anything on them to support
the allegations of abuse. Andrew’s friend testified that he had never seen
Andrew abuse Drew. The friend had observed Andrew drinking alcohol in the past,
including in Drew’s presence, but he testified that he had never seen Andrew
drink excessively. The friend felt Andrew was a good father and someone he would
trust to watch his own children.
Dr. Rick McNeese
testified about his parenting evaluation of the parties. McNeese conducted
clinical interviews of the parties and Drew, had structured behavioral
observation of Drew with each party, administered various psychological testing
instruments to the parties, and reviewed collateral information (including
court records and information from Drew’s current therapist). McNeese did not
conduct home visits due to precautions relating to the COVID-19 pandemic, but the
parties agreed to provide him with pictures of their respective residences.
McNeese felt that Drew’s ADHD was not being fully treated and that a different
medication would be helpful. McNeese stressed the importance of the parties
working together on a consistent treatment plan for Drew. Based on information
from Drew’s current therapist, McNeese felt that the relationship between
Andrew and Drew had already improved. And, he testified that it would be
important for both parties to each work on improving their individual parenting
skills.
In addition to
testifying about his parenting evaluation, McNeese also testified about how
information might be relayed by children who have been “coached.” McNeese
testified about the statement in his report that when a child has “ADHD with
inattentive type,” like Drew, it would be more difficult for a parent to coach
the child to tell a particular story, and that due to issues in the child’s
short-term memory, his recitation would be more likely to present in a halting or
confused manner. In his testimony, McNeese indicated that children who have
been “coached” usually “will have a pretty superficial kind of explanation with
few details.”
In his report,
McNeese provided detailed comments and recommendations, which we do not recount
further here, except to note that McNeese felt that the parties needed to work
together in parenting Drew and would benefit from joint counseling sessions
with respect to their parenting of him, that Drew would benefit from a change
in medication and a thorough psychological and behavioral evaluation, that
stability and consistency were important for Drew, as well as gradual changes
in parental contact, and that if Andrew was unable to abstain from alcohol
during Drew’s visits, he should undergo a substance abuse evaluation. McNeese
also observed that Andrew “has a difficult time parenting Drew,” and he
cautioned against any “verbal abuse” or “rants” by Andrew. McNeese observed
that without the changes recommended in his report, approaches to managing
Drew’s resistance to contact with Andrew would be less likely to succeed.
The parties and
Andrew’s girlfriend testified about the issue of Drew running away from
Andrew’s house during his parenting time. The evidence shows that he did this
on more than one occasion following entry of the December 2019 temporary order
and continued to do so on occasion after entry of the February 2020 order.
Prior to the February order, the parties would exchange text messages to
address the issue, but as noted above, there was some confusion as to whose
responsibility it was at that point to return Drew to Andrew’s residence. On
one occasion after the February order, Angela informed Drew that she would not
be home if he ran away. Angela agreed that there was a weekend when Drew did
not run away, but it is unclear whether this corresponds with the occasion when
she texted him that she would be out of town. The evidence reflects that the
summer parenting time schedule was going well and Drew had not run away recently.
Additional text
messages between the parties were admitted into evidence during the
modification trial, and it is clear that the parties communicate primarily by
text message and have had antagonistic exchanges in the past. However, they
both testified they would be able to communicate with one another effectively
about parenting issues if legal custody were changed despite their past
difficulties.
The parties also
testified about the December 2020 incident when Drew threatened self-harm. We
do not recite further details here, except to note that Drew revealed at one
point that he intended to harm himself by holding his breath. We also note that
Drew continued to be in counseling at the time of the modification trial and
that he was seeing a different therapist than Lepard. Angela felt that
counseling with the new therapist was helpful to Drew, it had improved Drew’s
relationship with Andrew, and further counseling with this therapist would be
beneficial. At the time of the
modification trial, Andrew was employed as a journeyman mason, earning $28.50
per hour. Angela had not been employed outside the home for several years; her
last job had been part-time employment. Her last full-time job outside the home
was about 4 years prior to trial, at which time she earned minimum wage. She
testified that she did not have anything limiting her ability to work, but she
indicated that she was not working currently, in part, because of Drew’s issues
and also because she was providing some care for her grandfather.
5. MODIFICATION DECREE
On August 7, 2020,
the district court entered a decree of modification. The court found that there
had been a substantial and material change of circumstances warranting
modification of the 2015 order. The court made detailed findings with respect
to the change of circumstances regarding custody and Drew’s best interests. In
finding a material change in circumstances, the court noted, among other
things, that Angela had not allowed ordered parenting time beginning in April
2019 and continuing until October, that Drew had missed an excessive amount of
school, and that both parties had failed to communicate well regarding Drew.
The court expressed concern about how often Angela had taken Drew to the doctor
“without ever seeing a specialist” and the
amount of school Drew had missed for those appointments, but it declined to
find that Angela was taking Drew to the doctor excessively, as alleged by
Andrew. (Emphasis in original.) With respect to best interests, the court again
noted the “false allegations” of abuse that had been made against Andrew.
Angela had urged the court to reconsider its previous findings with regard to
the credibility of Drew’s earlier in camera testimony, but the court again
expressed its reservations about certain aspects of Drew’s testimony, even in
light of possible explanations provided by McNeese. The court also noted
Andrew’s denial of any physical abuse of Drew, and it found that Angela had not
established by a preponderance of the evidence that Andrew had committed child
abuse or neglect. In connection with additional best interests findings, while
noting McNeese’s opinion that “increased contact with [Andrew] should be done
gradually, rather than with a large change,” the court stated that its order
was “maintaining the status quo which has been working well this summer.” The
court found it was in Drew’s best interests “to continue with the
every-other-week arrangement so that he may bond with both parents.” The court
also found that Drew could benefit from the parties’ different parenting styles
and that neither was an unfit parent. The court determined that the parties
should be awarded joint physical and legal custody of Drew subject to the
provisions of the parenting plan attached to the decree, which adopted an
“alternating week-to-week” regular parenting time schedule with exchanges on
Sunday evening at 6 p.m. and also specified holiday and vacation parenting
time. The court also ordered, among other things, that the parties undergo
joint counseling sessions in order to agree how to best parent Drew and
investigate whether Drew’s ADHD was being treated appropriately. The court
modified Andrew’s child support obligation to $363 per month and terminated his
obligation to pay cash medical support.
In connection with
its previous finding that Angela was in willful contempt of court, the district
court ordered that she serve 15 days in jail beginning on December 10, 2020.
The court provided that Angela could purge herself of the jail sentence by
forfeiting her Halloween and Thanksgiving parenting time in 2020 and by paying
attorney fees of $7,500 by December 1 for Andrew’s benefit. The court ordered
Angela to pay attorney fees of $7,500 for Andrew even if she opted not to purge
herself of the jail sentence. With regard to Angela’s contempt action against
Andrew, the court determined that Angela had not served Andrew. The court
stated that although it appeared Andrew was not complying with the court’s
order, the court lacked jurisdiction to find him in contempt due to Angela’s
failure to serve him. Accordingly, the court dismissed Angela’s action against
Andrew, but it admonished Andrew to comply with the court’s orders.
6. MOTION FOR NEW TRIAL
Angela filed a
motion for new trial and motion to alter or amend. On September 11, 2020, the
district court overruled the motion for new trial, and granted the motion to
alter or amend in part, finding that it had jurisdiction to address Angela’s
motion for order to show cause because Andrew had previously entered his
appearance and a denial in that action. The court found Andrew in contempt for
failing to exercise certain parenting time in January 2020 and in not providing
notice to Angela. It found the remaining allegations of contempt against Andrew
had not been proven. The court observed that it had found both parents to be in
willful contempt of its order, but that Angela’s contempt had resulted in
Andrew not having parenting time for several months and was more egregious than
Andrew’s. The court ordered sanctions against Andrew in the total sum of $750
and directed that he could purge himself of contempt by exercising all of his
parenting time through November 15, 2020. The court admonished both parties to
comply with the court’s orders. The court also ordered Andrew to pay the sum of
$1,000 toward Angela’s attorney fees, which it offset against the fees Angela
was ordered to pay, bringing the total she owed for Andrew’s attorney fees down
to $6,500. The court addressed Angela’s argument that its prior order requiring
that she pay Andrew’s attorney fees within 4 months was excessive, punitive,
and an abuse of discretion. The court disagreed, given the fact that Angela’s
willful contempt had caused Andrew to miss out on several months of parenting
time and required him to incur attorney fees. However, given the court’s
finding of contempt by Andrew and Angela’s assertion that she would not be able
to pay the ordered amount by December 1, the court amended the sanctions
imposed upon Angela by separating out the jail sentence into two installments:
10 days beginning on December 10, 2020, and 5 days beginning on the 10th day of
the month following the first missed payment of attorney fees. The purge plan
remained the same for the December 10 jail sentence; the 5-day jail sentence
could be purged by paying the $6,500 attorney fees in $1,000 installments
beginning on December 1, 2020, and on the first of the month thereafter until
satisfied. Finally, the court denied Angela’s motion as it related to the
modification action.
Angela timely appealed.
III. ASSIGNMENTS
OF ERROR
Angela asserts that
the district court abused its discretion in (1) finding that she was in willful
contempt, (2) imposing punitive and excessive sanctions against her, and (3)
modifying custody to joint legal and physical custody, and as a result, also
modifying child support and child-related expenses.
IV. STANDARD
OF REVIEW
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 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. Vyhlidal v. Vyhlidal, 309 Neb. 376, 960 N.W.2d 309 (2021). A
judicial abuse of discretion exists if the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a substantial right and
denying just results in matters submitted for disposition. Id.
Modification of a
judgment or decree relating to child custody, visitation, or support is a
matter entrusted to the discretion of the trial court, whose order is reviewed
by an appellate court de novo on the record, and will be affirmed absent an
abuse of discretion. Lindblad v. Lindblad,
309 Neb. 776, 962 N.W.2d 545 (2021).
V. ANALYSIS
1. CONTEMPT
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. Vyhlidal
v. Vyhlidal, supra. Willful disobedience is an essential element of civil
contempt; “willful” means the violation was committed intentionally, with
knowledge that the act violated the court order. Braun v. Braun, 306 Neb. 890, 947 N.W.2d 694 (2020). Outside of
statutory procedures imposing a different standard or an evidentiary
presumption, all elements of contempt must be proved by the complainant by
clear and convincing evidence. Krejci v.
Krejci, 304 Neb. 302, 934 N.W.2d 179 (2019). If it is impossible to comply
with the order of the court, the failure to comply is not willful. McCullough v. McCullough, 299 Neb. 719,
910 N.W.2d 515 (2018). Willfulness is a factual determination to be reviewed
for clear error. Braun v. Braun, supra.
In a civil contempt
proceeding, for the sanction to retain its civil character, the contemnor must,
at the time the sanction is imposed, have the ability to purge the contempt by
compliance and either avert punishment or, at any time, bring it to an end. Yori v. Helms, 307 Neb. 375, 949 N.W.2d
325 (2020). The sanction in a civil contempt proceeding is both remedial and
coercive, and when a jail sentence is imposed as a sanction, the contemnor must
carry the keys to their jail cells in their own pocket. Braun v. Braun, supra. A jail sanction in a civil contempt
proceeding is conditioned upon the contemnor’s continued noncompliance with the
court order, and the purge plan must allow the contemnor to mitigate or avoid
the sanction through compliance. Id.
(a) Willful Contempt
Angela first argues
that the district court’s factual determinations were clearly erroneous as the
determinations of willfulness and credibility were inconsistent with the
record. Angela asserts that the district court gave Andrew “the benefit of the
doubt” despite him being a less credible witness and having “lied under oath
multiple times” during the proceedings. Brief for appellant at 14. Angela also
challenges her being held in contempt for acting in what she believed to be her
child’s best interests.
The district court
resolved any factual disputes in Andrew’s testimony in his favor, and it also
specifically noted credibility concerns with both Lepard’s and Drew’s
testimony. The court further noted that the record supported a finding of
contempt even if it were to take all of Drew’s testimony as true. Where
credible evidence is in conflict on a material issue of fact, the appellate
court considers, and may give weight to, the fact that the trial court heard
and observed the witnesses and accepted one version of the facts rather than
another. Yori v. Helms, supra.
Accordingly, we find no clear error in the court’s resolution of credibility
issues.
Angela next argues
that even if the district court’s factual determinations were not clearly
erroneous, the finding that she was in willful contempt was an abuse of
discretion. Angela maintains that she did her best to comply with the parenting
plan despite Andrew’s “problematic conduct” including his routinely allowing
Drew to decide whether to go to Andrew’s home for his parenting time, Andrew’s
failure to show up for parenting time on occasion, and Andrew’s failure to
address Drew’s mental health issues. Brief for appellant at 16. Angela points
to Drew’s anxiety and behavior problems to excuse her “emergency medical
decision” to not force him to go on the 2019 Colorado vacation, fearing that
such would create significant mental issues for him. Brief for appellant at 17.
Angela further maintains that she had no choice but to give Drew’s allegations
of physical abuse some credence. In her arguments, Angela refers to some
evidence about things that occurred after the court found her in contempt, but
we have focused our review on only on the evidence adduced at the 2019 contempt
proceeding.
As noted above, the
district court resolved the conflicting evidence in Andrew’s favor, and we have
accepted the court’s factual findings in this regard. Further, the evidence is
clear that Andrew did not receive parenting time with Drew for an extended
period beginning in about April 2019. Upon our review, we cannot say that the
court erred in finding that Angela willfully violated the court order.
Accordingly, the court did not abuse its discretion in finding Angela to be in
contempt of court.
(b) Sanctions
Next, Angela assigns
error to the sanctions imposed by the district court, arguing that they were
punitive, excessive, and an abuse of discretion. She compares the imposition of
a jail sentence with a purge plan and assessment of attorney fees against her
to the “slap on the wrist” imposed against Andrew. Brief for appellant at 20.
Angela further points to the lack of evidence that she has sufficient income to
pay this expense despite the court’s finding that she has the capacity to work
full time at minimum wage. Angela asserts that in order to comply with the
sanctions, she would have to enter the job market at the peak of a global
pandemic, and she is a person at high risk with a history of respiratory
illness and immune deficiency. Angela does not direct us to evidence to
supporting her argument about her health concerns, although we note that in the
August 2020 hearing on Angela’s motion for new trial, her attorney addressed
similar arguments, stating “the reality is is [sic] a person at risk.” Her
attorney also argued that “with the current economic climate, it’s simply not
feasible for her to come up with a large sum by a short period” and that
spreading the payment in installments would “make it more feasible for her to
do so and address these issues.”
Clearly, the
district court considered the arguments presented at the new trial motion
hearing; it modified the purge plan as described in the background section
above. The court also determined Angela’s contempt, which had resulted in
Andrew not having parenting time for several months, was more egregious than
Andrew’s. We agree with the court’s assessment and find no abuse of discretion
in its imposition of sanctions against Angela.
2.
MODIFICATION
Ordinarily, custody
and parenting time of a minor child will not be modified unless there has been
a material change in circumstances showing that the best interests of the child
require modification. Lindblad v.
Lindblad, 309 Neb. 776, 962 N.W.2d 545 (2021). Modifying a custody or
parenting time order requires two steps of proof. Id. First, the party seeking modification must show by a
preponderance of the evidence a material change in circumstances that has
occurred after the entry of the previous custody order and that affects the
best interests of the child. Id.
Second, the party seeking modification must prove that changing the child’s
custody or parenting time is in the child’s best interests. Id. Generally speaking, a material
change in circumstances is the occurrence of something which, had it been known
to the dissolution court at the time of the initial decree or prior
modification, would have persuaded the court to decree differently. Id.
(a) Material
Change in Circumstances
Angela does not
challenge the district court’s finding that a material change in circumstances
had occurred in this case. Nevertheless, for the sake of completeness, we find
the record supports such finding. The record reflects unanticipated changes in
the relationship between Drew and Andrew beginning in April 2019 as well as in
Drew’s behavioral and mental health and school attendance. In addition, the
record supports a finding of a material change of circumstances warranting the
modification of child support given the modification of physical custody and
the rebuttable presumption set forth in Neb. Ct. R. § 4-217 (variation by 10
percent or more of current child support obligation). Next, we turn to the
second prong of the analysis, the best interests of the child.
(b) Best
Interests
When determining the
best interests of the child in the context of custody, a court must consider,
at a minimum, (1) the relationship of the minor child to each parent prior to
the commencement of the action; (2) the desires and wishes of a sufficiently
mature child, if based on sound reasoning; (3) the general health, welfare, and
social behavior of the child; (4) credible evidence of abuse inflicted on any
family or household member; and (5) credible evidence of child abuse or neglect
or domestic intimate partner abuse. Jones
v. Jones, 305 Neb. 615, 941 N.W.2d 501 (2020). See Neb. Rev. Stat. §
43-2923(6) (Reissue 2016). Other relevant considerations include stability in
the child’s routine, minimalization of contact and conflict between the
parents, and the general nature and health of the individual child. Jones v. Jones, supra. No single factor
is determinative, and different factors may weigh more heavily in the court’s
analysis, depending on the evidence presented in each case. Id.
Angela argues that
the district court abused its discretion in finding that it was in Drew’s best
interests to modify custody and parenting time. Angela points to Drew’s mental
health issues, including ADHD, anxiety, and a mild learning disability. She
asserts that she is the more empathetic and concerned parent, and is better
able to deal with these issues. In contrast, she describes Andrew as verbally
abusive toward Drew and dismissive of his struggles. In changing custody to
joint physical custody with an alternating weekly schedule, Angela argues that
the court disregarded Drew’s struggles with school, as well as McNeese’s expert
testimony that a drastic change would be detrimental to Drew’s best interests.
It is clear from the
record that the parties have different parenting styles. It is also clear that
Drew has many issues and that the parties will need to work together closely to
successfully parent him. However, the record shows that counseling with the new
therapist was going well and that the relationship between Drew and Andrew had
already improved by the time of the modification trial. The week-on-week-off
parenting time schedule had been working well during the summer of 2020, and
while Angela expressed concerns about whether it would work as well during the
school year, such a schedule will minimize the number of transitions Drew must
make between households and provide consistency in his routine that was perhaps
lacking following the addition of some mid-week parenting time in 2019. The
parties have had an antagonistic relationship in the past, but they both
testified that they could communicate effectively to parent Drew in the event
of custody changes. And, finally, as noted previously, the district court
resolved conflicting evidence in Andrew’s favor, and we defer to its
determinations in that regard. See Yori
v. Helms, 307 Neb. 375, 949 N.W.2d 325 (2020). We find no abuse of
discretion in the court’s finding that a modification of custody and parenting
time was in Drew’s best interests.
(c) Child
Support and Related Expenses
Angela also asserts
that the district court abused its discretion in modifying child support and
child related expenses. Presumably, this portion of her assigned error was tied
to her argument that the court abused its discretion in modifying custody and
parenting time, and we have already found above that the court did not abuse
its discretion in that regard. Angela does not present any arguments
specifically addressed to this portion of her assignment of error, and we do
not address it further, except to note that the cash medical support was ordered
in 2015 because health insurance was not available at that time and it was
clearly available at the time of the current modification trial. See Korth v. Korth, 309 Neb. 115, 958 N.W.2d
683 (2021) (to be considered by appellate court, alleged error must be both
specifically assigned and specifically argued in brief of party asserting
error).
3.
ANDREW’S REQUEST
FOR ATTORNEY
FEES
Before concluding,
we note that Andrew argues in his brief that Angela’s arguments are wrong in
law and fact, without factual or legal support, and/or meritless or frivolous
and that he should therefore receive an award of attorney fees under Neb. Rev.
Stat. § 43-1412(3) (Reissue 2016). As a general rule, attorney fees and
expenses may be recovered in a civil action only where provided for by statute
or when a recognized and accepted uniform course of procedure has been to allow
recovery of attorney fees. Id. Attorney fees and costs are statutorily allowed
in paternity and child support cases. Wolter
v. Fortuna, 27 Neb. App. 166, 928 N.W.2d 416 (2019). See § 43-1412(3).
Because Andrew is the prevailing party, he is entitled to attorney fees on
appeal. Our rules of appellate procedure require those seeking the award of
such relief to file a motion supported by an affidavit justifying the amount
sought “no later than 10 days after the release of the opinion of the court or
the entry of the order of the court disposing of the appeal, unless otherwise
provided by statute.” Neb. Ct. R. App. P. § 2-109(F) (rev. 2021). If Andrew
wishes to pursue an award of attorney fees and costs under § 42-1412(3), he may
file such a motion in accordance with the rule set forth above.
VI. CONCLUSION
The district court
did not abuse its discretion in finding Angela in contempt or in imposing
sanctions against her. Likewise, it did not abuse its discretion in modifying
custody and parenting time.
AFFIRMED.
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