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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
MARTIN v. MARTIN
Cite as 294 Neb. 106
Dean P. M artin, appellee, v.
R honda J. M artin, now known as
R honda J. Brown, appellant.
___ N.W.2d ___
Filed July 8, 2016. No. S-15-672.
1. Contempt: Appeal and Error. 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 sanc-
tion to be imposed is reviewed for abuse of discretion.
2. Contempt. Civil contempt proceedings are instituted to preserve and
enforce the rights of private parties to a suit when a party fails to com-
ply with a court order made for the benefit of the opposing party.
3. Contempt: Words and Phrases. Willful disobedience is an essential
element of contempt; “willful” means the violation was committed
intentionally, with knowledge that the act violated the court order.
4. Contempt: Presumptions: Proof. Outside of statutory procedures
imposing a different standard or an evidentiary presumption, all ele-
ments of contempt must be proved by the complainant by clear and
convincing evidence.
5. Contempt. Contempt proceedings may both compel obedience to orders
and administer the remedies to which a court has found the parties to
be entitled.
6. Courts: Jurisdiction: Divorce: Contempt. A court’s continuing juris-
diction over a dissolution decree includes the power to provide equi-
table relief in a contempt proceeding.
7. Courts: Equity. Where a situation exists that is contrary to the prin-
ciples of equity and which can be redressed within the scope of judicial
action, a court of equity will devise a remedy to meet the situation.
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MARTIN v. MARTIN
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8. Contempt: Sentences. A civil sanction is coercive and remedial; the
contemnors carry the keys of their jail cells in their own pockets,
because the sentence is conditioned upon continued noncompliance and
is subject to mitigation through compliance.
Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
Corey J. Wasserburger, of Johnson, Flodman, Guenzel &
Widger, for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
K elch, J.
I. INTRODUCTION
This is an appeal from an order of the district court for
Lancaster County that found Rhonda J. Martin, now known
as Rhonda J. Brown, in contempt of court for willfully violat-
ing the parenting provisions of her marital dissolution decree
and imposed sanctions. For the reasons set forth below,
we affirm.
II. BACKGROUND
Rhonda and Dean P. Martin were divorced in 2002. They
share legal custody of their two minor children, Taylor and
Ethan Martin. Initially, Rhonda and Dean shared equal physi-
cal custody of the boys; but in 2008, the decree was modi-
fied to the effect that Rhonda now has physical custody of
the boys and Dean has rights of visitation. Dean’s visitation
rights were modified by a parenting plan entered into by
the parties; the plan was approved by the district court in
December 2011.
Pursuant to the 2011 parenting plan, Dean was to have the
boys every other weekend from 5 p.m. on Friday to 7 p.m.
on Sunday, for 6 weeks during the summer, and on certain
holidays. In 2014, it was Dean’s year to have the boys for
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MARTIN v. MARTIN
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Christmas and his parenting time was to begin at 6 p.m. on
December 19 and end at 12 p.m. on December 27.
As for transportation, Dean was to pick up the boys at the
start of his parenting time from Rhonda’s home in Prague,
Nebraska, and Rhonda was to pick them up from Dean’s
home in Lincoln, Nebraska, at the conclusion of Dean’s
parenting time. Previously, Rhonda had taken the boys to
Dean’s home and he had returned them to Rhonda’s home;
however, Dean requested the new arrangement because
Taylor’s involvement in sports required Taylor to be in Prague
on Friday nights and Rhonda had taken the position that
she was not responsible for transporting Taylor to Dean if
his sporting events went past 5 p.m. On such occasions,
Rhonda would sometimes deliver Ethan to Dean at 5 p.m.
and Dean would drive to Prague to retrieve Taylor after his
sporting events.
On April 3, 2015, Dean filed a motion for an order for
Rhonda to show cause why she should not be held in con-
tempt for her alleged failure to allow Dean to exercise par-
enting time on the following days: (a) during the weekend
of December 12, 2014; (b) from December 19 to 24; (c) on
January 9, 2015 (with Ethan); (d) on January 23; (e) on March
6; and (f) on March 20 and 21. At the time Dean filed the
motion, the boys, Taylor and Ethan, were 16 and 15 years old,
respectively.
1. June 11, 2015, Hearing
A hearing on Dean’s motion was held on June 11, 2015.
Both Rhonda and Dean testified, and various exhibits were
offered and received. Much of the evidence in this case is in
the form of text messages sent back and forth between the
parties and their children. We reproduce the messages in their
original form.
(a) Weekend of December 12, 2014
Under the parenting plan, Dean was to have the boys on
the weekend of December 12, 2014. Taylor had a basketball
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game that Saturday and sent Dean several text messages on
December 12 expressing his desire to travel with his team the
next day.
Dean arrived at Rhonda’s house at 5 p.m. that night to
retrieve the boys. The boys went outside with their bags and
approached Dean’s vehicle. Taylor got into Dean’s vehicle, but
Ethan did not. Ethan refused to get in the vehicle and returned
to the house. Taylor stayed in the vehicle and talked to Dean
for a few minutes before returning to the house. Rhonda testi-
fied that Taylor told her that Dean wanted to know whether it
was fine if the boys stayed home that weekend. Rhonda testi-
fied that she told Ethan that she was “‘not gonna shut [her]
door’” on them, but that it was up to Dean whether the boys
went with him or stayed with her. According to Dean’s testi-
mony, Taylor told him that Rhonda said the boys could stay
with her and that they did not have to go with Dean. Dean left
without the boys.
Dean testified that sometime after he left, he received a
telephone call from Ethan and eventually spoke with Rhonda
about what had happened. Dean testified that Rhonda asked
him, “‘Why’d you leave? It’s your parenting time. I’m kind
of surprised. The boys came back in and I had no idea if there
was an issue of any kind.’”
Further, Rhonda testified, “Physically, there [was] no way
that I could grab [Ethan] and shove him into the car and force
him to go.”
(b) December 19 to 24, 2014
Dean was supposed to have the children from 6 p.m.
on December 19, 2014, until 12 p.m. on December 27. On
December 18, Taylor sent Dean the following text message in
the afternoon:
Hey I got my drivers license today for my 16th birth-
day. You don’t have to come get us this weekend because
we would like to stay home until the 24th. I can drive to
ur house then, but we would like to come on the 24th by
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noon, stay on Christmas, and then go home on the 26th at
3:30. Please Let us know.
4:09 PM
Without responding to Taylor, Dean forwarded the text mes-
sage to Rhonda and asked whether she was going to tell Taylor
and Ethan that they needed to go with him on December 19,
2014. Rhonda responded to Dean, “I’ve encouraged them to do
so, but it sounds like they told you what they want.”
Sometime later, Rhonda sent a text message to Dean asking
if everything was worked out in terms of his parenting time.
Dean replied that it was all worked out and that he would
retrieve the boys from their grandparents on December 24,
2014. The boys went to Dean’s house on December 24 and
stayed until December 26.
(c) January 9, 2015
Dean was supposed to have the boys over the weekend of
January 9, 2015. Taylor had a basketball game that Friday, and
Dean made arrangements to pick Taylor up after his game. As
for Ethan, Dean drove to Rhonda’s house to pick him up at 5
p.m. However, Ethan refused to go with Dean.
At that time, Rhonda was in Missouri for a National Guard
drill. Dean called Rhonda and told her that Ethan was refusing
to get in his vehicle, and he asked Rhonda for help. Rhonda
testified that the telephone was put on the speakerphone set-
ting and that on speakerphone, she told Ethan that Dean had
been waiting 2 weeks to see him and that he needed to go
spend time with Dean. Rhonda testified that Ethan said he
did not want to go with Dean to Taylor’s game; Dean testi-
fied that Ethan wanted to stay at Rhonda’s house and play
video games.
Rhonda testified that she told Dean she would do whatever
he needed her to do, but that she was “almost 200 miles away”
and that there was “not a lot” she could do except talk to
Ethan. While still on speakerphone, Dean advised Rhonda that
she needed to punish Ethan by taking things away from him
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or “ground[ing]” him. Rhonda testified that she told Dean that
would be a conversation she would have to have with Ethan
in the future.
Rhonda ended the conversation with the belief that Dean
would continue to talk to Ethan. Before the call ended, she told
Dean she would contact him or that he could call her back.
Rhonda testified that she called Dean back within 30 minutes
and that Dean told her he had left Ethan at home. Rhonda testi-
fied that Dean said he was not going to fight with Ethan on the
matter and that Ethan needed to be at his home by 10 a.m. the
following day. Rhonda’s husband transported Ethan to Dean’s
home the next morning.
Dean testified that he did not force Ethan to go with him
that Friday or tell Ethan that he had to go with him. Instead,
Dean testified that he expected Rhonda would do that. When
asked whether Rhonda told Ethan he should go, Dean agreed
that she did, but Dean testified that Rhonda also told Ethan it
was up to Ethan and suggested that Rhonda’s husband could
take him to Dean’s home the next day.
(d) January 23, 2015
Dean’s next parenting time was to occur over the weekend
of January 23, 2015. Taylor had a basketball game in Palmyra,
Nebraska, on Friday and another game in Brainard, Nebraska,
on Saturday. On January 21, Taylor sent Dean the following
text messages:
Hey dad I’m just going to stay home this weekend. I
am going to be busy this weekend and I just want to stay
home. I’m going to have some people from the basketball
team over after Saturday’s game too.
7:03 PM
Actually can we just go to ur house with you after my
game on Saturday[.]
7:14 PM
Rhonda testified that she communicated with Taylor about
whether he and Ethan would go to Dean’s house that weekend.
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MARTIN v. MARTIN
Cite as 294 Neb. 106
According to Rhonda, she told Taylor that the decision was
ultimately up to Dean and that Taylor needed to communicate
with Dean about it, because it was Dean’s weekend and she
did not have any bearing on the decision. Later, Rhonda texted
Taylor in relevant part: “Ok. Do not respond. I’m trying to
take care of this. Just stand your ground when he approaches
you.” Rhonda testified that she meant that “Taylor didn’t need
to get into the middle of what was going on between myself
and Dean at the time . . . as far as giving out phone numbers
because he didn’t have permission.”
Rhonda testified that on Friday, the night of the Palmyra
game, the boys’ belongings were in her vehicle so the boys
could go with Dean that evening. She testified that toward the
end of the junior varsity game, the boys approached her and
told her they did not want to go. Rhonda testified that she told
the boys that it was Dean’s decision and that she would not
get in the middle of it. According to Rhonda, she later learned
from the boys that Dean told them it was fine for them not to
go with him that evening and that Dean would transport them
to his house after the basketball game the next day. The boys
did not go with Dean that night, but instead went with Dean
after the basketball game on Saturday.
Further, the transcript of text messages that Rhonda prepared
and offered at the contempt hearing did not include her mes-
sage to Taylor encouraging him to “stand his ground” and not
respond to Dean.
On January 29, 2015, Dean sent an e-mail to Rhonda,
expressing his discontent about not receiving his parent-
ing time:
Rhonda
I want you to know that I was not ok with the boys
not coming AGAIN Friday 1/23/15 to our home for my
scheduled parenting time.
Just to let you know I am never ok with Taylor &
Ethan not coming on my time frames. I am sending you
this email so you know that if the boys say it is ok with
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MARTIN v. MARTIN
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Dad if we do not come, I AM NOT OK WITH THAT!
And also I have NEVER told the boys it is ok not to come
on my time frame.
You will need to contact me if they say that and dis-
cuss, and not ASSUME it is ok. I want you to contact me
and not go through our boys and have them tell me they
are not coming my time frames, you are the parent and
they are the children. I hope this will stop any confusion
with this issue.
(e) March 6, 2015
Under the parenting agreement, Dean was supposed to have
the boys on the weekend beginning Friday, March 6, 2015.
Rhonda was again out of town for a National Guard drill.
Ethan’s school had an overnight “lock-in” that Friday, and
Ethan wanted to attend. Taylor wanted to stay in Prague to
work on his homework at school, because the school had
Internet access and Dean did not.
Taylor sent Dean a text message notifying him that Ethan
would attend the lock-in and that Taylor would pick Ethan
up Saturday morning after the lock-in and proceed to Dean’s
house. Thereafter, Dean sent Rhonda an e-mail, expressing his
frustration about the lack of communication from her regard-
ing the lock-in.
(f) March 20 and 21, 2015
Dean was supposed to have parenting time over the week-
end beginning Friday, March 20, 2015. Earlier in the week,
Taylor sent Dean several text messages expressing his desire
to stay in Prague to attend an alumni basketball game at
school that Friday night. The messages also informed Dean
about Taylor’s new landscaping job in Seward, which began
that Saturday, and about his preference to carpool to Seward
that day with two other boys. Dean essentially told Taylor
that his proposal was not acceptable. Text messages show that
Taylor urged Dean to reconsider, but that Dean told Taylor
that he would see both boys “Friday at 5.” Taylor continued
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MARTIN v. MARTIN
Cite as 294 Neb. 106
to plead, but Dean stood firm. Taylor ultimately told Dean via
text on Friday at 11:59 a.m. that he would not go with Dean
that evening.
Rhonda testified that she became aware of the disagree-
ment between Taylor and Dean when she received a text mes-
sage from Dean telling her that she should have Taylor read
the divorce decree. According to Rhonda, he also told her to
remind the boys that he would be picking them up on Friday
at 5 p.m. Rhonda testified that she told Ethan and Taylor that
Dean had “the parental decision during his parenting time and
they really need to work out an arrangement with [him].”
On Friday, Dean drove to Rhonda’s home to retrieve the
boys, but they did not get in his car. Rhonda testified that the
boys’ bags were packed and that they took the bags outside
with them and talked to Dean for 10 to 15 minutes before
returning to the house. Rhonda testified that Dean was “almost
all the way down the lane” before the boys even got back to
the front door. According to Rhonda, she asked the boys what
was going on and they told her that Dean said they could go
to the basketball game and that Ethan would need to be in
Seward on Saturday when Taylor got off work so that the boys
could leave for Dean’s house from Seward. In accordance with
this plan, the boys went to Dean’s house after Taylor was done
working in Seward.
2. District Court’s Findings
At the conclusion of the evidence on June 11, 2015, the
district court ordered Rhonda to appear on June 17, request-
ing that the two minor children appear at that time as well.
On June 17, the parties appeared with Taylor and Ethan, and
the district court orally announced its findings and decision.
It found Rhonda in contempt of court for willful failure to
comply with the district court’s order “with regard to parenting
time.” The district court addressed the boys:
I want you gentlemen to understand that it is the court’s
order, not your parents’ order that you are going to be
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— or that your parents are abiding by. And the conse-
quence falls on your parents if there is a failure to com-
ply, so I want you to know that while you think you are
of an age where you can make these decisions or should
be able to make these decisions, you’re not yet.
The district court’s June 17 order stated:
[Rhonda] is found beyond a reasonable doubt to be in
willful contempt of the order of this court regarding
parenting time for [Dean]. [Rhonda] is also forcibly
and intentionally placing the children of the parties in
the middle. Then she is using passive aggressive tech-
niques to abrogate her obligations as the custodial parent.
The court finds that modification of the parenting plan
is required.
The district court did not cite to any testimony or evidence in
support of its findings.
Although neither party applied for a modification, the dis-
trict court made three modifications to the parenting plan. First,
the district court modified the commencement of Dean’s par-
enting time to 6 p.m. Second, the transportation arrangements
were modified so that Rhonda was required to deliver the boys
to Dean’s home and Dean was to return them to Rhonda’s
home. The order also stated:
In the event that either child has a sporting event on the
Friday evening on which a parenting time is to com-
mence, [Rhonda] shall deliver the children no later than
two hours following the conclusion of the event. If [Dean]
is in attendance at the sporting event, the exchange may
take place at the sporting event. If for any reason either
of the children does not go with [Dean] from the sport-
ing event, it shall remain the obligation of [Rhonda] to
deliver the children to [Dean’s] home within two hours of
the completion of the event.
Third, the district court appointed a guardian ad litem for
the children and ordered, “No parenting time shall be changed
in any way without written consent of the guardian ad litem.”
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The district court committed Rhonda to jail for 60 days, but
suspended the sentence and allowed for her to purge herself of
the contempt so long as she (1) complied in full with all the
terms of the parenting plan as modified and (2) paid $500 of
Dean’s attorney fees.
III. ASSIGNMENTS OF ERROR
Rhonda assigns that the district court erred in (1) finding
and holding Rhonda in contempt, (2) sanctioning Rhonda, (3)
modifying the parenting plan, and (4) requiring the parties to
obtain written consent of the guardian ad litem before chang-
ing the parenting schedule.
IV. STANDARD OF REVIEW
[1] In a civil contempt proceeding where a party seeks reme-
dial 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 is reviewed for
abuse of discretion. In re Interest of Zachary D. & Alexander
D., 289 Neb. 763, 857 N.W.2d 323 (2015). A judicial abuse of
discretion exists when a judge, within the effective limits of
authorized judicial power, elects to act or refrain from acting,
but the selected option results in a decision which is unten-
able and unfairly deprives a litigant of a substantial right or a
just result in matters submitted for disposition through a judi-
cial system. Rhoades v. Rhoades, 258 Neb. 721, 605 N.W.2d
454 (2000).
V. ANALYSIS
1. Contempt Finding
Rhonda assigns that the district court erred in finding her in
contempt “with regard to parenting time,” because there was
no evidence that she willfully refused to allow Dean to have
parenting time. Instead, she claims that Dean voluntarily left
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without the children and that she cannot be blamed for his fail-
ure to exercise his full allotment of parenting time.
[2-4] 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 ben-
efit of the opposing party. See, Hossaini v. Vaelizadeh, 283
Neb. 369, 808 N.W.2d 867 (2012); Smeal Fire Apparatus
Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010),
disapproved on other grounds, Hossaini v. Vaelizadeh, supra.
Willful disobedience is an essential element of contempt;
“willful” means the violation was committed intentionally,
with knowledge that the act violated the court order. Hossaini
v. Vaelizadeh, supra. Outside of statutory procedures impos-
ing a different standard or an evidentiary presumption, all
elements of contempt must be proved by the complainant by
clear and convincing evidence. See, id.; Smeal Fire Apparatus
Co. v. Kreikemeier, supra.
Dean filed a motion for an order for Rhonda to show cause
why she should not be held in contempt for her alleged fail-
ure to allow Dean to exercise parenting time with the parties’
minor children during the time periods summarized in the
background section above. Rhonda did not dispute that Dean
was not able to exercise his court-ordered parenting time, but
contended that she was not responsible for Dean’s missed par-
enting time.
In order to show Rhonda was responsible for Dean’s lack of
parenting time, he cited several instances of Rhonda’s trans-
ferring her responsibility as a parent to the boys. For example,
he testified that on December 12, 2014, the boys initially
came out to his vehicle but that Taylor returned to Rhonda’s
residence and spoke with her. According to Dean, upon return-
ing to Dean’s vehicle, Taylor advised him that Rhonda had
told Taylor, “‘Mom says we can stay.’” Rhonda denied mak-
ing this statement and claimed surprise that the children
did not go with Dean. Dean testified that on December 18,
Taylor texted Dean advising that he did not want to see Dean
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on December 19, as scheduled. Dean forwarded the text to
Rhonda who responded back, “I’ve encouraged them to do so,
but it sounds like they told you what they want.”
Dean testified that he was to have parenting time on January
23, 2015, but that prior to the scheduled parenting time, he
received a text from Taylor desiring to stay with Rhonda. Dean
texted Rhonda for assistance, but she did not respond to Dean.
Instead, Rhonda testified she advised Taylor that “he needs to
communicate with his dad and let him know because it’s his
dad’s time and his dad has the parental decision making at that
point. That I didn’t have any bearing on that.” On March 20,
Dean was to have parenting time, but before the scheduled par-
enting time, he received text messages from Taylor expressing
that he did not want to come with Dean. Rhonda stated, “I told
the boys, you know, it’s your dad’s time, that you need to work
out an arrangement with your dad.”
After the evidentiary hearing, the district court set forth
its finding on the record with both parties present. It did not
address each period of time that Dean alleged Rhonda had
failed to allow parenting time as ordered. Rather, the district
court found that overall, Rhonda had transferred her responsi-
bility as a parent to the boys and had left it up to them to work
out parenting time with Dean. This finding by the district court
would also be a violation of the parenting plan, which specifi-
cally stated that Rhonda and Dean “shall be the parties solely
for communicating with each other regarding parenting issues
relating to the children.”
In finding Rhonda in contempt, the district court chose
to give greater weight to the evidence provided by Dean.
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.
Davidson v. Davidson, 254 Neb. 357, 576 N.W.2d 779 (1998).
Accordingly, we find no clear error in the trial court’s fac-
tual findings.
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As a singular event, Rhonda’s allowing the boys to exercise
the final decisionmaking authority in regard to Dean’s parent-
ing time may have been defensible, but the consistent pattern
of her transferring her responsibility to the boys supports the
finding of the trial court. Rhonda’s continued behavior, coupled
with the evidence that Dean was not able to exercise his court-
ordered parenting time, leads to the further finding that there
was no abuse of discretion by the trial court in determining
Rhonda was in willful contempt for not allowing Dean parent-
ing time as ordered.
2. Modification and Sanctions
(a) Modification
[5-7] Rhonda argues that it is was an abuse of discretion
to require her to comply with the parenting plan as modified,
because the district court had no authority to modify the par-
enting plan. Contempt proceedings may both compel obedi-
ence to orders and administer the remedies to which the court
has found the parties to be entitled. See Smeal Fire Apparatus
Co. v. Kreikemeier, 279 Neb. 681, 782 N.W.2d 848 (2010).
A court’s continuing jurisdiction over a dissolution decree
includes the power to provide equitable relief in a contempt
proceeding. Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 549
(2016). Where a situation exists that is contrary to the prin-
ciples of equity and which can be redressed within the scope
of judicial action, a court of equity will devise a remedy to
meet the situation. Strunk v. Chromy-Strunk, 270 Neb. 917, 708
N.W.2d 821 (2006).
Further, Neb. Rev. Stat. § 42-364.15 (Reissue 2008) pro-
vides, in part:
Upon the filing of a motion which is accompanied by
an affidavit stating that either parent has unreasonably
withheld or interfered with the exercise of the court order
after notice to the parent and hearing, the court shall enter
such orders as are reasonably necessary to enforce rights
of either parent including the modification of previous
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court orders relating to parenting time, visitation, or
other access.
(Emphasis supplied.)
In imposing the purge plan in the instant case, the district
court stated:
I find that it is necessary to change and modify the
parenting plan in order to facilitate the assurance that
is necessary that there is compliance. And, therefore,
beginning with the next parenting plan for [Dean], I’m
going to change it so that [Rhonda] is responsible for
delivering the boys to [Dean] at the beginning of the
parenting plan.
The district court’s statement when imposing the purge plan
was an attempt to correct the situation whereby Rhonda
allowed the children to determine Dean’s parenting time.
For example, the boys would walk out to Dean’s vehicle,
but refuse to leave with him and then return to Rhonda’s
residence. The motion to show cause gave Rhonda notice that
she could be found in contempt for denying parenting time
which also gave notice of a possible modification pursuant to
§ 42-364.15. Having given notice as required by § 42-364.15,
the district court had the equitable authority, within the con-
fines of this contempt proceeding, to modify the parenting
plan as it related to issues that caused the finding of contempt.
Therefore, the district court did not abuse its discretion in
this regard.
(b) Excessive Sentence
[8] Next, Rhonda challenges the imposition of the 60-day
jail sentence as excessive. She argues that the sanction is
unjust and has no rational relationship to her actions. In civil
contempt cases involving the use of incarceration as a coer-
cive measure, a court may impose a determinate sentence only
if it includes a purge clause that continues so long as the con-
temnor is imprisoned. Sickler v. Sickler, supra. A civil sanc-
tion is coercive and remedial; the contemnors carry the keys
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MARTIN v. MARTIN
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of their jail cells in their own pockets, because the sentence
is conditioned upon continued noncompliance and is subject
to mitigation through compliance. Id. In this instance, the
district court’s order stayed the execution of the jail sentence
and allowed Rhonda to fully purge herself of the contempt
order by complying with the purge plan. Accordingly, the jail
sentence was coercive rather than punitive, and the district
court did not exceed its authority or abuse its discretion by
imposing it.
(c) Guardian Ad Litem
Lastly, Rhonda assigns that the district court erred by requir-
ing the parties to obtain written consent of the guardian
ad litem before changing the parenting schedule. She cites
Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980),
disapproved on other grounds, Gibilisco v. Gibilisco, 263
Neb. 27, 637 N.W.2d 898 (2002), to support her position that
requiring approval of a guardian ad litem prior to any change
in the parenting plan was an unlawful delegation of the district
court’s duties. In Deacon, the appellant claimed that by the
terms of the trial court’s order, a psychologist had been given
“the last word” on whether any visitation would occur. 207
Neb. at 199, 297 N.W.2d at 761. We stated:
[T]hat portion of the trial court’s order placing in a psy-
chologist the authority to effectively determine visitation,
and to control the extent and time of such visitation, is
not the intent of the law and is an unlawful delegation
of the trial court’s duty. Such delegation could result in
the denial of proper visitation rights of the noncusto-
dial parent.
Id. at 200, 297 N.W.2d at 762. However, Deacon is distin-
guishable, because the order in that case delegated to a third
party the authority to determine when and if a parent could
exercise parenting time. In the present contempt action, the
guardian ad litem may only consent to a change in parent-
ing time; the authority to determine parenting time for either
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294 Nebraska R eports
MARTIN v. MARTIN
Cite as 294 Neb. 106
party remains with the district court. Under the district court’s
order, the parties may not deviate from the current court-
ordered parenting plan without the district court’s ultimate
approval. This provision by the trial court was within its
equitable powers to devise a remedy in a contempt action to
address a continuing issue involving the children. See Strunk
v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006).
Accordingly, the district court did not err in requiring the par-
ties to obtain written consent of the guardian ad litem before
changing the parenting time schedule.
VI. CONCLUSION
We hold that the district court did not commit clear error in
its factual findings and did not abuse its discretion in finding
Rhonda in contempt or in imposing the 60-day jail sentence.
Further, the district court did not abuse its discretion in modi-
fying the parenting plan, within this contempt proceeding, to
devise an equitable remedy to address a continuing issue
involving the children.
A ffirmed.