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www.nebraska.gov/apps-courts-epub/
07/02/2021 08:10 AM CDT
- 376 -
Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 309 Neb. 376
Eric J. Vyhlidal, appellant, v.
Nessa A. Vyhlidal, appellee.
___ N.W.2d ___
Filed May 28, 2021. No. S-20-663.
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 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.
2. Child Custody: Appeal and Error. Relocation and child custody deter-
minations 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.
3. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
4. Contempt. The power to punish for contempt of court is a power inher-
ent in all courts of general jurisdiction such as the district courts of
this state.
5. ____. 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.
6. ____. 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.
7. Contempt: Proof: Stipulations. 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
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 309 Neb. 376
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.
8. Child Custody: Words and Phrases. Under the Parenting Act, the con-
cept of child custody encompasses both physical custody and legal cus-
tody, with legal custody focusing entirely on decisionmaking authority.
9. ____: ____. The term “joint legal custody” is the joint authority and
responsibility for making major decisions regarding the child’s welfare,
while the term “sole legal custody” establishes that one party will have
the final say in such decisions.
10. Child Custody. In child custody cases, the decision of where a child
will attend school is a fundamental decision.
Appeal from the District Court for Garfield County: Mark
D. Kozisek, Judge. Reversed and remanded for further
proceedings.
Loralea L. Frank and Nathan P. Husak, of Bruner, Frank,
Schumacher & Husak, L.L.C., for appellant.
Vikki S. Stamm 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.
BACKGROUND
Eric and Nessa were married in 2013, and one child was
born of their marriage. The parties divorced in 2018, and
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 309 Neb. 376
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 mari-
tal settlement agreement and a parenting plan. The parenting
plan, in relevant part, provides as follows:
C. REGULAR TIME-SHARING:
[Minor child] will be with Mom during the school year,
except for one night each week from after school until
8 p.m. Dad will give Mom 2 weeks’ notice of what night
he will exercise that parenting time.
The parents agree to alternate weekends, with Dad hav-
ing [minor child] two weekends in a row from Friday at
6 p.m. until Sunday at 6 p.m., then Mom having [minor
child] the third weekend. On the Sundays when Mom
works at night, Dad will have [minor child] until he drops
him off for school on Monday morning. The parents shall
follow a 2 weekend with dad/1 weekend with mom rota-
tion. This weekend rotation shall resume the first Friday
after school resumes with dad commencing the weekend
rotation annually.
The parents agree that they will work together to adjust
[minor child’s] schedule if their time with [minor child]
interferes with the work schedule.
Neither parent may make plans for the child during the
other parent’s parenting time without talking with that
parent in advance and obtaining that parent’s consent.
....
K. DECISION MAKING: The parents will discuss
matters concerning the child, such as health and med-
ical, school related problems and decisions, and any
behavioral or disciplinary issues that could impact both
households.
....
O. CHANGE OF PARENT’S RESIDENCE: In the
event that one of the parents plan to change his/her
residence, that parent shall notify the other parent of
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 309 Neb. 376
such change of residence. If one of the parents is living
or moving to an undisclosed location because of safety
concerns, the address or return address shall only include
the county and state.
P. CHANGE OF CHILD’S RESIDENCE: Both par-
ents shall provide notification to the other if s/he plans
to change the residence of the child. Neither parent may
move the child outside of the [S]tate of Nebraska without
permission of the Court. If intending to move that parent
must first:
• Make written application to the Court at least 45 days in
advance, including the proposed changes to the parenting
time schedule and costs of transportation[;]
• Give notice of the application and hearing to the other
parent; and,
• Establish that the move is in the best interest of the
child.
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 accompany
ing 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, ask-
ing 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, request-
ing the court to direct law enforcement to take custody of the
minor child and deliver the minor child to him.
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 309 Neb. 376
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.
ASSIGNMENT OF ERROR
Eric assigns, consolidated, that the district court abused its
discretion in denying his motion for an order to show cause.
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 are reviewed for
abuse of discretion. 1
[2,3] Relocation and child custody determinations are mat-
ters 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
1
State on behalf of Mariah B. & Renee B. v. Kyle B., 298 Neb. 759, 906
N.W.2d 17 (2018); Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867
(2012).
2
See, Korth v. Korth, ante p. 115, ___ N.W.2d ___ (2021); Schrag v. Spear,
290 Neb. 98, 858 N.W.2d 865 (2015).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 309 Neb. 376
depriving a litigant of a substantial right and denying just
results in matters submitted for disposition. 3
ANALYSIS
Contempt
[4] 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 disobedi-
ence of or resistance willfully offered to any lawful process or
order of said court . . . .”
[5-7] 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 pres-
ence of the judge, or the parties stipulate otherwise, an eviden-
tiary 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 oppor-
tunity 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
3
Id.
4
State ex rel. Beck v. Frontier Airlines, Inc., 174 Neb. 172, 116 N.W.2d 281
(1962).
5
Martin v. Martin, 294 Neb. 106, 881 N.W.2d 174 (2016).
6
Rhodes v. Rhodes, 210 Neb. 373, 314 N.W.2d 271 (1982).
7
See deBoer v. deBoer, 24 Neb. App. 612, 892 N.W.2d 879 (2017).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 309 Neb. 376
notification requirements and failed to consider Eric’s rights set
out in the decree of dissolution of marriage.
Joint Legal Custody
[8,9] 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 mak-
ing 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
[10] 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 decisionmaking authority. As a
result, it is undisputed that the parties share mutual authority
for making fundamental decisions regarding the minor child’s
welfare, including choices regarding education, such as where
the minor child will attend school. We have classified the
decision of where a child will attend school as a fundamen-
tal decision. 13
8
See Neb. Rev. Stat. § 43-2922(7) (Cum. Supp. 2020).
9
State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692
(2019).
10
§ 43-2922(11).
11
Brown v. Brown, 260 Neb. 954, 961, 621 N.W.2d 70, 77 (2000), quoting
Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999) (internal quota
tion marks omitted).
12
See § 43-2922(13).
13
See State on behalf of Kaaden S., supra note 9 (stating that father had final
say on fundamental decisions regarding child’s welfare, such as where he
attends school, because he was awarded legal custody of the child).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 309 Neb. 376
Over Eric’s objection and absent application to the court,
Nessa removed the minor child from the Burwell School
District and enrolled him into a new school in Springfield.
Whether Nessa’s unilateral decision to change the child’s
school is a willful violation of the decree of dissolution of
marriage entered by the court is a matter to be considered at an
evidentiary hearing where Eric can offer evidence to demon-
strate both that a violation of the court order occurred and that
the violation was willful.
Thus, we conclude the district court’s decision to deny Eric’s
motion for an order to show cause was an abuse of discretion
that unfairly deprived Eric of his rights as a joint legal custo-
dian of the minor child.
Parenting Time
In denying Eric’s motion for an order to show cause, the
district court noted that Eric’s weekday parenting time with
the minor child would be impacted. The Parenting Act defines
“parenting time” as “communication or time spent between the
child and parent.” 14 However, the trial court’s analysis went no
further in considering the loss of Eric’s parenting time and who
was responsible for that loss. The court failed to consider the
significant interference Nessa’s relocation has on Eric’s parent-
ing time during the school year.
In the instant case, the distance between Burwell and
Springfield is considerable. At oral argument, Nessa conceded
that the distance is approximately a 4-hour drive. During the
school year, Eric has parenting time one night each week
from after school until 8 p.m., in addition to two out of every
three weekends. Eric also has parenting time with the minor
child from Sunday until Monday morning when Nessa is
working at night. Although the parties have agreed to meet
halfway to exchange the minor child, Nessa’s relocation of
the minor child makes Eric’s weekday parenting time and his
14
§ 43-2922(19).
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
VYHLIDAL v. VYHLIDAL
Cite as 309 Neb. 376
Sunday overnight parenting time virtually impossible. Nessa
conceded at oral argument that since her move, Eric has not
been afforded his weekday visits. As a result, the district court
abused its discretion in failing to issue an order to show cause
as to why Nessa did not willfully violate the decree of dissolu-
tion of marriage in regard to Eric’s parenting time.
CONCLUSION
Joint legal custody means Eric and Nessa share mutual deci-
sionmaking authority when it comes to making fundamental
decisions regarding the minor child’s welfare and education,
such as where the child will attend school. Because Nessa’s
unilateral decision to relocate the minor child ran contrary
to the parties’ joint legal custody arrangement and because it
has deprived Eric of court-ordered parenting time, the district
court’s denial of Eric’s motion for an order to show cause was
an abuse of discretion.
Reversed and remanded for
further proceedings.