Vyhlidal v. Vyhlidal
| Decision Date | 28 May 2021 |
| Docket Number | No. S-20-663.,S-20-663. |
| Citation | 309 Neb. 376,960 N.W.2d 309 |
| Parties | Eric J. VYHLIDAL, appellant, v. Nessa A. VYHLIDAL, appellee. |
| Court | Nebraska Supreme Court |
Loralea L. Frank and Nathan P. Husak, of Bruner, Frank, Schumacher & Husak, L.L.C., for appellant.
Vikki S. Stamm, Kearney, and Sarah M. Hammond, of Stamm, Romero & Associates, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Funke, J. Eric J. Vyhlidal appeals the denial of his motion for an order to show cause based on Nessa A. Vyhlidal's relocation of their minor child. In denying the motion, the district court for Garfield County, Nebraska, found the parties’ parenting plan did not require the minor child to attend school in Burwell, Nebraska, rather than Springfield, Nebraska. As such, the court determined that the order to show cause was not warranted. On appeal, Eric argues the district court abused its discretion in denying his motion. Because we agree, we reverse, and remand for further proceedings.
Eric and Nessa were married in 2013, and one child was born of their marriage. The parties divorced in 2018, and the decree of dissolution dissolving their marriage awarded the parties joint legal and physical custody of the minor child. At the time of the divorce, Eric and Nessa entered into a marital settlement agreement and a parenting plan. The parenting plan, in relevant part, provides as follows:
On July 28, 2020, Nessa informed Eric that she intended to move with the minor child from Burwell to Springfield. Eric objected to the proposed relocation, and the parties attempted to resolve the matter through mediation. After mediation failed, Nessa proceeded with the move.
On August 11, 2020, Eric filed a motion, with an accompanying affidavit, asking the court to issue an ex parte order that would require Nessa to keep the minor child in the Burwell School District. In his motion, Eric stated that he and Nessa share joint legal and joint physical custody of the minor child and that Nessa made a unilateral decision to move the minor child without his consent. On the same day, Eric filed a motion for order to show cause, with an accompanying affidavit, asking the court to issue an order requiring Nessa to appear and show cause as to why she should not be held in contempt of court. Eric also asked the court to award him attorney fees. Additionally, Eric filed a motion for writ of assistance, requesting the court to direct law enforcement to take custody of the minor child and deliver the minor child to him.
On August 12, 2020, the district court entered a one-page order, denying Eric's motions for an order to show cause and for a writ of assistance. The court found that the parenting plan requires an application to the court and notice of hearing before a child may be moved out of the state, but found "no provision in the Parenting Plan requiring [minor child] to attend school in Burwell." The district court also noted that Nessa was granted custody during the school year except for one night per week that the minor child would spend with Eric. Eric timely appealed, and we moved the matter to our docket.
Eric assigns, consolidated, that the district court abused its discretion in denying his motion for an order to show cause.
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 of law 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.1
Relocation and child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion.2 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.3
The power to punish for contempt of court is a power inherent in all courts of general jurisdiction such as the district courts of this state.4 Under Neb. Rev. Stat. § 25-2121 (Reissue 2016), "[e]very court of record shall have power to punish by fine and imprisonment, or by either, ... (3) willful disobedience of or resistance willfully offered to any lawful process or order of said court ...."
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.5 A party to an action who fails to obey an order of the court, made for the benefit of the opposing party, is, ordinarily, guilty of a mere civil contempt.6 As noted by the Nebraska Court of Appeals, in order to prove civil contempt, unless the alleged contemptuous acts occurred within the presence of the judge, or the parties stipulate otherwise, an evidentiary hearing is necessary so that the moving party can offer evidence to demonstrate both that a violation of a court order occurred and that the violation was willful.7
In the instant matter, the district court's denial of Eric's motion for an order to show cause deprived Eric of the opportunity to preserve and enforce his rights as a parent with joint legal custody and his rights to parenting time. In doing so, the court incorrectly focused on Nessa's compliance with notification requirements and failed to consider Eric's rights set out in the decree of dissolution of marriage.
Under the Parenting Act, adopted by the Nebraska Legislature, the concept of child custody encompasses both "physical custody" and "legal custody,"8 with legal custody focusing entirely on decisionmaking authority.9 The Parenting Act defines the term "joint legal custody" as meaning "mutual authority and responsibility of the parents for making mutual fundamental decisions regarding the child's welfare, including choices regarding education and health."10 In other words, joint legal custody is the "joint authority and responsibility for making major decisions regarding the child's welfare,"11 while sole legal custody essentially establishes that one party will have the final say in such decisions.12
Here, the parenting plan, developed by the parties and approved by the court, clearly indicates that the parties were to share joint legal custody of the minor child, and neither party was granted exclusive final...
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