Eliker v. Eliker

• Decision Date: 22 July 1980
• Docket Number: 43021,Nos. 42932,s. 42932
• Citation: Eliker v. Eliker, 206 Neb. 764, 295 N.W.2d 268 (Neb. 1980)
• Parties: John ELIKER, Appellant, v. Evelyn ELIKER, Appellee.
• Court: Nebraska Supreme Court

Page 268

295 N.W.2d 268

206 Neb. 764

John ELIKER, Appellant, v. Evelyn ELIKER, Appellee.

Nos. 42932, 43021.

Supreme Court of Nebraska.

July 22, 1980.

Syllabus by the Court

1. Contempt. A proceeding for contempt is sui generis and summary in its nature. It partakes of some of the elements of both civil and criminal proceedings, but strictly speaking, it is neither. It belongs to a class of proceedings inherent in the court and deemed essential to its existence.

2. Contempt. Contempts which are prosecuted to preserve the power and vindicate the dignity of the court and to punish for disobedience of its orders are, ordinarily, termed criminal contempts, while those instituted to preserve and enforce the rights of private parties to the suit and to compel obedience to orders and decrees made to enforce the rights and to administer the remedies to which the court has found them to be entitled are, ordinarily, civil contempts.

3. Contempt. Where a party to an action fails to obey an order of the court, made for the benefit of the opposing party, the rule is well recognized that such act is, ordinarily a mere civil contempt, and the rules applicable to a criminal contempt are not applicable.

4. Contempt. A proceeding for civil contempt is one instituted to preserve and enforce the rights of a private party to an action and to compel obedience to a judgment or decree intended to benefit such a party litigant.

5. Contempt: Child Support. Proceedings brought pursuant to the provisions of Neb.Rev.Stat. §§ 42-358 et seq. (Reissue 1978) are civil in nature and are to be filed and heard in accordance with rules applicable to civil contempt proceedings.

6. Contempt. Where an individual is under order of a court to perform a continuing obligation, the fact that a court may, at one point in time, find the individual's failure to perform such act not wilfully contumacious, does not preclude the court from later finding continued disregard of the order as evidence of a subsequent wilful and contumacious act sufficient to constitute contempt of court.

7. Child Support: Visitation. The fact that a mother in whose custody a minor child has been placed by the court refuses to permit a father ordered to pay child support, to exercise his rights of visitation does not justify the father's withholding the payment of child support.

8. Divorce: Modification of Decree: Contempt. Where a divorced husband neglects to apply for a modification of the divorce decree, in spite of the fact that sufficient grounds exist to warrant modification, the mere existence of such grounds with respect to payments due under the decree is not available as a defense to proceedings for contempt for violating the decree.

9. Divorce: Child Custody: Child Support. The disposition of minor children and provisions for their support, in an action where a divorce is granted, is not controllable by agreement of the parties, but by the court on the facts and circumstances as disclosed to it.

10. Laches: Equity. The defense of laches prevails only when it has become inequitable to enforce the claimant's right, and it is not available to one who has caused or contributed to the cause of delay or to one who has had it within his power to terminate the action.

Roger C. Lott, Lincoln, for appellant.

Ron Lahners, Lancaster County Atty., and Thomas S. Jaudzemis, Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

KRIVOSHA, Chief Justice.

The appellant herein, John Eliker, appeals from two separate final orders entered in the same case by the District Court for Lancaster County, Nebraska. Both orders have been consolidated for purposes of appeal. The first order, entered in case No. 42932, resulted from a finding by the District Court that Mr. Eliker had wilfully and contumaciously disregarded a previous judgment of the District Court for Lancaster County, Nebraska, requiring him to make child support payments for his then minor child. As a result of the finding, the trial court ordered Mr. Eliker confined to jail for a period of 90 days, subject, however, to his right to purge himself of such contempt by paying the delinquent child support within 30 days from the date of the order.

In the second case appealed, No. 43021, the trial court ordered and directed Mr. Eliker's employer to withhold and transmit certain earnings of Mr. Eliker to the clerk of the District Court for Lancaster County, Nebraska, to be applied upon payment of the delinquent child support payments. We have reviewed the records in both cases and conclude the orders are, in all respects, correct. The orders in both cases are, therefore, affirmed.

The marriage of Mr. Eliker and his former wife, Evelyn Eliker, was dissolved by decree entered by the District Court for Lancaster County, Nebraska, on March 6, 1969. By the decree, Mrs. Eliker was granted custody of the minor child of the parties and Mr. Eliker was ordered to pay child support in the amount of $50 per month, beginning March 6, 1969. At the time of the entry of the decree, the minor child of the parties was not quite 13 years of age and obtained her majority on April 20, 1975.

The records in the office of the clerk of the District Court for Lancaster County, Nebraska, disclose that Mr. Eliker made only one of the required child support payments and was, on April 20, 1975, some $3,800 delinquent in child support payments.

On August 1, 1978, the District Court for Lancaster County, Nebraska, pursuant to Neb.Rev.Stat. § 42-358(2) (Reissue 1978), appointed the county attorney of Lancaster County, Nebraska, to commence contempt proceedings against Mr. Eliker for his failure to pay the required child support. On October 25, 1978, a hearing was had before the Honorable Samuel Van Pelt, one of the judges in and for the 3rd judicial district, and on November 16, 1978, Judge Van Pelt entered an order finding that the evidence was not sufficient to establish Mr. Eliker's wilful failure to comply with prior court orders. Accordingly, the contempt proceeding was dismissed.

Thereafter, on March 8, 1979, the Honorable Dale Fahrnbruch, another of the district judges for the 3rd judicial district, acting pursuant to the provisions of § 42-358(2), again entered an order to show cause why Mr. Eliker should not be held in contempt of court for his failure to make child support payments as previously ordered by the court. The record reflects that between the date of November 16, 1978, when the previous contempt proceeding was dismissed, and March 8, 1979, when the subsequent proceeding was filed, Mr. Eliker made no further payments.

In response to the order to show cause entered by Judge Fahrnbruch, Mr. Eliker filed a response. He maintained that Mrs. Eliker should be estopped from enforcing the collection of the delinquent child support payments because of her refusal, during the time that the child was a minor, to permit Mr. Eliker to see the child. Mr. Eliker further maintained that Mrs. Eliker should be denied relief because of her failure to ever seek collection of the delinquent payments.

Hearing was held on March 26, 1979, before the Honorable Dale Fahrnbruch. Thereafter, the court determined from the evidence that Mr. Eliker had sufficient income to pay the delinquent child support payments and owned a home, free and clear of any liens. Accordingly, the court found that as of March 26, 1979, Mr. Eliker was in contempt of court and thereafter, on July 23, 1979, ordered Mr. Eliker to be confined to jail for a period of 90 days, provided, however, that Mr. Eliker could purge himself of contempt by paying by August 23, 1979, all of the child support payments due.

The second order resulted from an action instituted by the Lancaster County attorney's office pursuant to the provisions of Neb.Rev.Stat. § 42-364.01 (Reissue 1978). Following hearing, the District Court entered an order directing Mr. Eliker's employer to pay into court, out of Mr. Eliker's wages, the sum of $75 each pay period to be applied on the delinquent child support.

We shall first consider the assignments of error raised by Mr. Eliker in case No. 42932. Mr. Eliker maintains that the trial court erred in finding that a contempt proceeding brought pursuant to Neb.Rev.Stat. § 42-358 (Reissue 1978) is civil in nature rather than criminal. Moreover, Mr. Eliker maintains that because the proceeding is a criminal action and not a civil action, it must be prosecuted in the name of the State and is subject to the 3-year statute of limitations provided by Neb.Rev.Stat. § 29-110 (Reissue 1979).

Furthermore, Mr. Eliker maintains that the trial court erred in failing to find that the former hearing, held on October 25, 1978, before Judge Van Pelt, constituted res judicata as to any subsequent proceedings seeking to find Mr. Eliker in contempt of court and, further, as a criminal matter, the present hearing constituted double jeopardy. And, finally, Mr. Eliker maintains that he should not have been held in contempt of court because Mrs. Eliker is precluded from collecting the unpaid child support, under the doctrines of both equitable estoppel and laches.

We turn, then first to the question of whether a proceeding brought under the provisions of § 42-358 involves a civil contempt proceeding or a criminal contempt proceeding.

To be sure, the question of determining whether or not a contempt action is civil or criminal in nature has caused some difficulty, not only for this court, but for other courts as well. That is due, in part, to the fact that the proceedings are not, in the traditional sense, either criminal or civil. A proceeding for contempt is sui generis and summary in its nature. It partakes of some of the elements of both civil and criminal proceedings, but strictly speaking, it is neither. It belongs to a class of proceedings inherent in the court and deemed essential to its existence. State ex rel....