State on behalf of Kaaden S. v. Jeffery T. , 26 Neb. Ct. App. 421 ( 2018 )

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STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 26 Neb. App. 421State of Nebraska on behalf of K aaden S.,
a minor child, appellee, v. Jeffery T.
appellant, and M andy S., appellee.
___ N.W.2d ___
Filed October 16, 2018. No. A-17-1210.
1. Paternity: Appeal and Error. In a filiation proceeding, questions con-
cerning child custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of discretion
by the trial court, whose judgment will be upheld in the absence of an
abuse of discretion. In such de novo review, when the evidence is in
conflict, 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.
2. Minors: Names: Appeal and Error. An appellate court reviews a trial
court’s decision concerning a requested change in the surname of a
minor de novo on the record and reaches a conclusion independent of
the findings of the trial court.
3. 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 are reviewed for abuse of discretion.
4. Paternity: Attorney Fees: Appeal and Error. In a paternity action,
attorney fees are reviewed de novo on the record to determine whether
there has been an abuse of discretion by the trial judge, and absent such
an abuse, the award will be affirmed.
5. Modification of Decree: Divorce: Child Custody. If trial evidence
establishes a joint physical custody arrangement, courts will so construe
it, regardless of how prior decrees or court orders have characterized
the arrangement.
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STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 26 Neb. App. 4216. Child Custody. The amount of time children spend with each parent is
less important than how the time is allocated when determining whether
joint physical custody exists.
7. Child Custody: Appeal and Error. 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.
8. Child Custody. Joint physical custody should be reserved for those
cases where, in the judgment of the trial court, the parents are of such
maturity that the arrangement will not operate to allow the child to
manipulate the parents or confuse the child’s sense of direction, and will
provide a stable atmosphere for the child to adjust, rather than perpetuat-
ing turmoil or custodial wars.
9. Child Custody: Evidence. When considering joint custody, the focus
is on the parents’ ability to communicate with each other and resolve
issues together.
10. Evidence: Appeal and Error. 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.
11. Child Support: Rules of the Supreme Court: Appeal and Error. The
Nebraska Child Support Guidelines, specifically Neb. Ct. R. § 4-215(B)
(rev. 2011), estimate $480 as an ordinary amount of nonreimbursed
medical expenses, and that figure is then subsumed within the amount
of child support that is ordered.
12. Minors: Names. The question of whether the name of a minor child
should be changed is determined by what is in the best interests of
the child.
13. Minors: Names: Proof. The party seeking the change in surname
has the burden of proving that the change in surname is in the child’s
best interests.
14. Minors: Names. In Nebraska, there is no preference for a surname—
paternal or maternal—in name change cases; rather, the child’s best
interests is the sole consideration.
15. ____: ____. Nonexclusive factors to consider in determining whether a
change of surname is in a child’s best interests are (1) misconduct by
one of the child’s parents; (2) a parent’s failure to support the child;
(3) parental failure to maintain contact with the child; (4) the length of
time that a surname has been used for or by the child; (5) whether the
child’s surname is different from the surname of the child’s custodial
parent; (6) a child’s reasonable preference for one of the surnames; (7)
the effect of the change of the child’s surname on the preservation and
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STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 26 Neb. App. 421development of the child’s relationship with each parent; (8) the degree
of community respect associated with the child’s present surname and
the proposed surname; (9) the difficulties, harassment, or embarrass-
ment that the child may experience from bearing the present or pro-
posed surname; and (10) the identification of the child as a part of a
family unit.
16. 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.
17. Criminal Law: Contempt: Sentences. A criminal sanction is punitive;
the sentence is determinate and unconditional, and the contemnors do
not carry the keys to their jail cells in their own pockets.
18. Contempt. In order for the punishment 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.
19. ____. A fine is an appropriate sanction in a civil contempt proceeding
so long as the contemnor may avoid the fine by complying with the
court’s order.
20. ____. An unconditional fine is not an appropriate sanction in a civil
contempt proceeding because the contemnor is unable to avoid the fine
through his or her conduct.
Appeal from the District Court for Jefferson County: R icky
A. Schreiner, Judge. Affirmed in part, vacated in part, and in
part reversed and remanded with directions.
Ronald R. Brackle for appellant.
Angelica W. McClure, of Kotik & McClure Law, for appel-
lee Mandy S.
Pirtle, R iedmann, and Welch, Judges.
R iedmann, Judge.
INTRODUCTION
Jeffery T. appeals the order of the district court for
Jefferson County which awarded custody, parenting time, and
child support regarding the minor child Jeffery shares with
Mandy S. The court also held Mandy in contempt of court
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Cite as 26 Neb. App. 421and imposed a fine of $50. For the reasons that follow, we
affirm in part, vacate in part, and in part reverse and remand
with directions.
BACKGROUND
Jeffery and Mandy are the parents of a minor child, Kaaden
S., born in June 2014. They were never married and did not
have a relationship prior to conception of the child. Jeffery
was present at the hospital on the day Kaaden was born, but he
claims that Mandy would not allow him to be part of Kaaden’s
life after that time and repeatedly insisted that he was not
Kaaden’s father. On the other hand, Mandy alleges that she
notified Jeffery when she learned she was pregnant but that
he refused to be involved other than attending one medical
appointment and Kaaden’s birth.
In August 2014, Jeffery contacted an attorney with the
Nebraska Department of Health and Human Services in order
to commence the present paternity action. Thus, the State filed
a complaint on February 17, 2015, asking the court to establish
paternity of Kaaden and order child support. Jeffery filed a
cross-claim requesting that the court enter a custody order and
change Kaaden’s last name from Mandy’s surname to Jeffery’s
surname. Genetic testing subsequently confirmed that Jeffery
was Kaaden’s biological father.
During the pendency of this action, Jeffery continued to
have difficulty visiting Kaaden. In October 2015, Mandy
began allowing Jeffery to have supervised visits with Kaaden
for 11⁄2 hours per week. At some point in 2015, Jeffery began
paying voluntary child support to Mandy. In June 2016, the
district court entered a temporary order ordering Jeffery to
pay $694 per month in child support and awarding him super-
vised visitation for 60 days. After the initial 60 days, Mandy
was to have primary physical custody and Jeffery received
unsupervised parenting time every other weekend from Friday
at 6 p.m. until Sunday at 6 p.m. and each Wednesday from
5 until 7 p.m. Despite the temporary order, Mandy refused
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Cite as 26 Neb. App. 421to allow Jeffery to have overnight visits with Kaaden, and at
some point, she terminated Jeffery’s Wednesday evening visits
as well.
Around the time Jeffery’s contact with Kaaden increased,
Kaaden began exhibiting escalating behavior problems, such
that Mandy began taking him to see a counselor in November
2016. The counselor initially diagnosed Kaaden with “separa-
tion trauma and extreme anxiety,” but testified at trial that
Kaaden experienced significant growth during the 5 months
that she worked with him. She also opined that Mandy had
“significant unresolved issues” toward Jeffery and recom-
mended that Mandy participate in treatment to address her
emotional trauma. The counselor believed, as of the time of
trial, that it was best for Kaaden that contact between Jeffery
and Mandy be limited.
At the same time Kaaden’s behavior began changing, the
already tense relationship between Jeffery and Mandy also
started to deteriorate. On November 30, 2016, Jeffery audio
recorded an exchange with Mandy when he was returning
Kaaden from a visit. During the exchange, Mandy can be heard
yelling at Jeffery and belittling his attempts at building a rela-
tionship with Kaaden. Mandy made clear that she did not want
Jeffery in Kaaden’s life and believed Jeffery’s efforts at being
a father to Kaaden were harmful to the child. At the conclusion
of the recording, Mandy sprayed Jeffery in the face with pep-
per spray and apparently called the police on him. Jeffery was
met at his residence by two sheriff’s deputies, but after Jeffery
played the recording for them, they did not arrest him. At trial,
Mandy acknowledged that after the November 2016 incident,
she did not try to communicate with Jeffery about Kaaden and
said that it became even more difficult for the two of them to
communicate at all.
In January 2017, Jeffery filed a motion to hold Mandy in
contempt of court for denying him the parenting time awarded
in the temporary order and refusing to provide him with
Kaaden’s medical information. Trial on the issues of custody,
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Cite as 26 Neb. App. 421parenting time, child support, and the contempt motion was
held on May 9. At trial, Jeffery explained that he was request-
ing primary physical custody of Kaaden, and he believed that
such an arrangement would be in Kaaden’s best interests. He
testified that if awarded custody, he would support Kaaden’s
relationship with Mandy and adhere to any visitation order the
court imposed.
The evidence established that throughout the case, Mandy
would allow Jeffery some daytime visits with Kaaden, but she
permitted only two weekends of overnight visitation, both of
which occurred in April 2017. The evidence additionally estab-
lished that after the November 2016 recorded incident, she
refused to allow Jeffery to see Kaaden again until December
24 and 31, and further denied him the extended overnight
holiday visits allocated to him in the temporary order. Mandy
admitted that she did not adhere to the temporary order, but
she said that she denied overnight visits because Kaaden was
scared and not ready for them and that she was following the
recommendations of Kaaden’s therapist. During the pendency
of the matter, the parties attempted mediation twice, but were
unsuccessful in reaching an agreement. Mandy admitted that
she refused to even sit in the same room as Jeffery at both
mediation sessions.
After trial, the district court entered an order on custody, par-
enting time, child support, and contempt. The court observed
that Mandy loves Kaaden but that she wants nothing to do
with Jeffery, nor does she want Kaaden to have anything to
do with Jeffery. The court recognized that Jeffery complained
that Mandy intentionally withheld his parenting time from
him and was openly hostile during exchanges of Kaaden. The
court cited the November 2016 exchange as an example of
Mandy’s hostility toward Jeffery, noting that Mandy “launched
into a vulgar and accusatory tirade directed at Jeffery before
spraying him in the face with pepper spray.” The district
court found that Mandy had been Kaaden’s primary caregiver
since birth, but the fact that she has had more time to parent
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Cite as 26 Neb. App. 421Kaaden and may have developed a stronger relationship with
him appears entirely due to her absolute unwillingness to
allow Jeffery to be involved in Kaaden’s life. Nonetheless,
the court determined that in the limited time Jeffery has had
with Kaaden, he has managed to form a relationship and bond
with Kaaden and parents him appropriately. The court found
that although Kaaden “fusses” during exchanges with Jeffery,
Kaaden appears to adjust well once in Jeffery’s care, and that
both parents adequately provide for Kaaden’s welfare and
appear concerned with his continued development.
The district court concluded that Jeffery was a fit and proper
person to have custody of Kaaden, but that the complicating
factor in this case is the lack of a relationship between Jeffery
and Mandy, as well as Mandy’s “obvious resentment” toward
Jeffery and the situation. The court found that Mandy appears
to do everything she can to limit or monitor Jeffery and
Kaaden’s relationship and has done everything in her power to
prevent Jeffery from being a father to Kaaden. Although it is
obvious that Mandy loves Kaaden, the court observed that her
anger toward Jeffery “clouds her judgment” regarding what is
in Kaaden’s best interests at times, especially when it comes to
allowing Jeffery to be involved in Kaaden’s life.
The district court appointed a guardian ad litem (GAL) in
April 2017, and in its order, the court found that the GAL’s
report was thorough and well-reasoned. The court observed
the GAL reported that Mandy’s obstructive behavior continued
after trial and that it was her opinion those behaviors were
detrimental to Kaaden’s well-being. The court observed that
the GAL recommended placing primary custody of Kaaden
with Jeffery and that she felt “‘completely confident’” in that
recommendation.
The district court iterated that during the pendency of this
matter, it attempted to encourage Mandy “to see past her hurt,
fear, and anger” and allow Kaaden to have Jeffery in his life,
but it appeared that her behavior had not changed and that she
was still placing “more value on her hate and anger than she
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Cite as 26 Neb. App. 421[was] on Kaaden’s ability to have a father actively engaged in
his life.”
Based on the foregoing and with the “firm belief that doing
so best ensures compliance with the order of custody so that
Kaaden can enjoy the full benefits of having both parents
involved in his life to the greatest degree possible,” the court
concluded that it was in Kaaden’s best interests to place his
primary legal and physical custody with Jeffery subject to
liberal parenting time with Mandy. The parties were therefore
awarded alternating weekly parenting time. The court utilized
the joint physical custody worksheet and ordered Jeffery to pay
child support of $93 per month and the first $480 of Kaaden’s
nonreimbursed health care costs. The court’s order did not spe-
cifically deny Jeffery’s request to change Kaaden’s last name,
but the order states that any request for relief by any party not
specifically granted by the order was denied. The district court
also found Mandy in willful contempt of the court’s temporary
order and imposed a fine of $50.
Thereafter, Jeffery filed a motion to alter or amend, which
the court denied. Jeffery timely appeals to this court.
ASSIGNMENTS OF ERROR
Jeffery assigns that the district court erred in (1) awarding
in substance joint physical custody; (2) ordering him to pay
child support, using the joint custody worksheet, and order-
ing him to pay the first $480 of Kaaden’s health care costs;
(3) failing to order Mandy to pay child support; (4) failing
to change Kaaden’s last name; (5) failing to fine Mandy in a
greater amount for her contempt of court; and (6) refusing to
award him attorney fees.
STANDARD OF REVIEW
[1] In a filiation proceeding, questions concerning child
custody determinations are reviewed on appeal de novo on
the record to determine whether there has been an abuse of
discretion by the trial court, whose judgment will be upheld in
the absence of an abuse of discretion. In such de novo review,
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Cite as 26 Neb. App. 421when the evidence is in conflict, 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. Derby v. Martinez, 24 Neb. App. 17, 879
N.W.2d 58 (2016).
[2] An appellate court reviews a trial court’s decision con-
cerning a requested change in the surname of a minor de novo
on the record and reaches a conclusion independent of the find-
ings of the trial court. State on behalf of Connor H. v. Blake G.,
289 Neb. 246, 856 N.W.2d 295 (2014).
[3] 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. State on behalf of Mariah B. & Renee B. v.
Kyle B., 298 Neb. 759, 906 N.W.2d 17 (2018).
[4] In a paternity action, attorney fees are reviewed de novo
on the record to determine whether there has been an abuse of
discretion by the trial judge. Drew on behalf of Reed v. Reed,
16 Neb. App. 905, 755 N.W.2d 420 (2008). Absent such an
abuse, the award will be affirmed. Id.ANALYSIS
Joint Physical Custody
Jeffery first argues that the court abused its discretion in
essentially awarding joint physical custody. We agree and
determine that even though the district court stated that it
was awarding primary physical custody to Jeffery, the court
awarded de facto joint physical custody. We additionally con-
clude that an award of joint physical custody was an abuse
of discretion given our de novo review of the record and the
court’s factual findings. We therefore reverse that portion of
the court’s order and remand the cause for a modification of
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Cite as 26 Neb. App. 421Mandy’s parenting time consistent with an award of primary
physical custody to Jeffery.
[5] If trial evidence establishes a joint physical custody
arrangement, courts will so construe it, regardless of how prior
decrees or court orders have characterized the arrangement.
Hill v. Hill, 20 Neb. App. 528, 827 N.W.2d 304 (2013). “Joint
physical custody means mutual authority and responsibility
of the parents regarding the child’s place of residence and the
exertion of continuous blocks of parenting time by both parents
over the child for significant periods of time.” Neb. Rev. Stat.
§ 43-2922(12) (Reissue 2016).
[6] In Hill v. Hill, supra, this court outlined several cases
discussing how to distinguish joint physical custody from sole
physical custody with liberal parenting time. We observed that
Nebraska case law establishes that the amount of time children
spend with each parent is less important than how the time
is allocated when determining whether joint physical custody
exists. Id. We recognized that joint physical custody has been
defined as joint responsibility for minor day-to-day decisions
and the exertion of continuous physical custody by both parents
for significant periods of time. Id., citing Elsome v. Elsome,
257 Neb. 889, 601 N.W.2d 537 (1999). We noted that this type
of arrangement is distinguishable from that where one parent
enjoys liberal parenting time such as alternating weekends, one
overnight visit per week, one additional overnight visit on the
off weekends, and additional breaks and holidays. See, Hill v.
Hill, supra; Drew on behalf of Reed v. Reed, supra. In Hill, we
concluded that the physical custody arrangement amounted to
joint physical custody where the children lived day in and day
out with both parents on a rotating basis, and each parent was
equally responsible for the physical and emotional demands of
the children’s day-to-day care.
The same is true in the present case. Despite the district
court’s characterization of the arrangement, Jeffery and Mandy
are each responsible for the day-to-day care of Kaaden dur-
ing the week they are exercising their parenting time. This is
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Cite as 26 Neb. App. 421the standard joint physical custody arrangement. Each parent
is equally responsible for getting Kaaden to and from child-
care while the parents are working and for handling his daily
emotional demands. As a result, the arrangement in this case
is properly characterized as joint physical custody, rather than
primary custody with liberal parenting time. Even Mandy
concedes in her brief that “[w]hile the court referred to the
arrangement in this case as sole custody, the time allotted
meets the statutory definition of joint custody because each
party has equal continuous blocks of parenting time with
the child.” Brief for appellee at 18. We must now determine
whether an award of joint physical custody was an abuse of the
court’s discretion.
[7-9] 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 determina-
tion will normally be affirmed absent an abuse of discretion.
Erin W. v. Charissa W., 297 Neb. 143, 897 N.W.2d 858 (2017).
Joint physical custody should be reserved for those cases
where, in the judgment of the trial court, the parents are of
such maturity that the arrangement will not operate to allow
the child to manipulate the parents or confuse the child’s sense
of direction, and will provide a stable atmosphere for the child
to adjust, rather than perpetuating turmoil or custodial wars.
Id. When considering joint custody, the focus is on the par-
ents’ ability to communicate with each other and resolve issues
together. Aguilar v. Schulte, 22 Neb. App. 80, 848 N.W.2d
644 (2014).
In the instant case, the district court found that Jeffery
was a fit and proper person to have custody of Kaaden. The
court observed that Jeffery has a suitable residence and stable
employment and that he encourages healthy behaviors with
Kaaden. The court also recognized Mandy’s resentment toward
Jeffery and found that “she has done everything in her power
to prevent Jeffery from being a father to Kaaden.” The court
found that the GAL issued a thorough and well-reasoned
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Cite as 26 Neb. App. 421report, which reported that Mandy’s “obstructive behavior”
continued and was “detrimental to Kaaden’s emotional well-
being.” Thus, the GAL recommended awarding primary physi-
cal custody of Kaaden to Jeffery and felt “completely confi-
dent” in that recommendation.
The district court iterated that it “tried to encourage Mandy
to see past her hurt, fear, and anger” and allow Kaaden to
have Jeffery in his life, but Mandy did not heed the court’s
advice as it “appears she is still putting more value on her
hate and anger than she is on Kaaden’s ability to have a father
actively engaged in his life and the benefits of that relation-
ship.” Therefore, when considering all of the evidence and
circumstances of this case, including Mandy’s defiance of
the temporary order, so that Kaaden can enjoy the full ben-
efits of having both parents involved in his life to the great-
est degree possible, the district court concluded that it was
in Kaaden’s best interests to place his primary legal and
physical custody with Jeffery subject to liberal parenting time
with Mandy.
[10] We consider and give weight to the district court’s fac-
tual findings and concerns, which are well-founded and sup-
ported by the record. 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. Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655(2014). Notwithstanding the temporary order awarding Jeffery
overnight parenting time with Kaaden every other weekend
and alternating Wednesday evenings, Mandy refused to allow
Jeffery his allotted parenting time. She also refused to provide
Jeffery with Kaaden’s medical information despite his numer-
ous requests. The parties attempted mediation on two separate
occasions, but Mandy refused to even sit in the same room as
Jeffery on each occasion. And her anger and hatred of Jeffery
is evident in the recorded exchange. She made clear that she
did not want Jeffery to be part of Kaaden’s life and that she
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ing Kaaden.
The undisputed evidence also establishes that Jeffery and
Mandy have virtually no ability to communicate with each
other regarding Kaaden. Mandy acknowledged at trial that it
has become more difficult for them to communicate at all, and
she did not believe they could communicate well enough to
make joint custody successful. Kaaden’s counselor believed it
was best for Kaaden that contact between Jeffery and Mandy
be limited at that time. And the district court’s order reports
that the GAL was concerned that “[Mandy] and her mother
feed off one another in their loathing of Jeffery and are unable
to give him credit for anything he does right when it comes
to Kaaden.”
Therefore, considering the foregoing, the evidence and the
district court’s factual findings do not support a conclusion that
joint physical custody is in Kaaden’s best interests. To the con-
trary, the district court determined that it was in Kaaden’s best
interests to place his legal and physical custody with Jeffery,
and we find that decision was not an abuse of discretion.
Accordingly, we reverse the parenting plan ordered in this case,
and remand the cause to the district court for implementation
of a parenting time arrangement whereby Jeffery has primary
physical custody subject to Mandy’s parenting time.
Child Support and
Health Care Expenses
Given our conclusion that the district court abused its discre-
tion in awarding de facto joint physical custody, we also find
that the court’s use of the joint custody worksheet in order to
calculate child support was in error. We therefore reverse the
child support award and remand the cause for recalculation
using the appropriate worksheet.
[11] Likewise, we reverse the requirement that Jeffery pay
the first $480 of Kaaden’s nonreimbursed health care costs.
Children’s health care expenses are specifically included in
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Cite as 26 Neb. App. 421the guidelines amount of up to $480 per child per year. See
Neb. Ct. R. § 4-215(B) (rev. 2011). As such, the guidelines
estimate $480 as an ordinary amount of such nonreimbursed
medical expenses, and that figure is then subsumed within
the amount of child support that is ordered. State on behalf
of Martinez v. Martinez-Ibarra, 281 Neb. 547, 797 N.W.2d
222 (2011). All nonreimbursed health care costs in excess of
$480 per child per year shall be allocated to the obligor par-
ent. § 4-215(B). Thus, we reverse this portion of the order,
and upon recalculation of child support, the district court shall
also allocate nonreimbursed health care costs in excess of
$480 accordingly.
Name Change
Jeffery assigns that the district court erred in denying his
request to change Kaaden’s name from Mandy’s last name to
Jeffery’s last name. We find no merit to this argument.
[12,13] The question of whether the name of a minor child
should be changed is determined by what is in the best interests
of the child. State on behalf of Connor H. v. Blake G., 289 Neb.
246, 856 N.W.2d 295 (2014). The party seeking the change in
surname has the burden of proving that the change in surname
is in the child’s best interests. Id. Cases considering this ques-
tion have granted a change of name only when the substantial
welfare of the child requires the name to be changed. Id. On
appeal, a trial court’s decision is reviewed de novo on the
record. See id.[14,15] In Nebraska, there is no preference for a surname—
paternal or maternal—in name change cases; rather, the child’s
best interests is the sole consideration. Id. Courts review a list
of nonexclusive factors to determine whether a change of sur-
name is in the child’s best interests. Id. These factors include
(1) misconduct by one of the child’s parents; (2) a parent’s
failure to support the child; (3) parental failure to maintain
contact with the child; (4) the length of time that a surname
has been used for or by the child; (5) whether the child’s
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STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 26 Neb. App. 421surname is different from the surname of the child’s custodial
parent; (6) a child’s reasonable preference for one of the sur-
names; (7) the effect of the change of the child’s surname on
the preservation and development of the child’s relationship
with each parent; (8) the degree of community respect associ-
ated with the child’s present surname and the proposed sur-
name; (9) the difficulties, harassment, or embarrassment that
the child may experience from bearing the present or proposed
surname; and (10) the identification of the child as a part of a
family unit. Id.In the present case, the district court’s order did not consider
any of the foregoing factors or make a finding of Kaaden’s
best interests with respect to his surname. Upon our de novo
review of the record, we observe that there was little evidence
presented at trial as to changing Kaaden’s name. Jeffery indi-
cated that he wanted Kaaden to share his last name, and we
note that Jeffery is now the custodial parent. Mandy testified
that she did not want Kaaden’s name to be changed, but she
did not further elaborate. At not quite 3 years old, Kaaden was
too young to express a preference or to appreciate a change in
his surname. Neither parent is married nor has any other chil-
dren, so there is no concern as to whether Kaaden will share a
name as part of a family unit. There was no evidence as to how
changing Kaaden’s surname from Mandy’s to Jeffery’s would
serve Kaaden’s best interests. Therefore, based on the totality
of the evidence, we conclude that Jeffery failed to establish
that the substantial welfare of the child requires the name to
be changed. Accordingly, we affirm the decision of the district
court denying Jeffery’s request.
Contempt of Court
Jeffery argues that the fine imposed on Mandy for being
in contempt of court was an abuse of discretion. We disagree
with Jeffery’s argument that the court should have imposed
a fine greater than $50, but we find plain error in the fine
as imposed.
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STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 26 Neb. App. 421In a civil contempt proceeding where a party seeks reme-
dial relief for an alleged violation of a court order, an appel-
late 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. State on behalf of
Mariah B. & Renee B. v. Kyle B., 298 Neb. 759, 906 N.W.2d
17 (2018).
The district court determined that the clear and convincing
evidence established that Mandy was in willful contempt of
the temporary order when she deprived Jeffery of his par-
enting time. The court therefore imposed a sanction of $50.
There is no challenge on appeal to the finding that Mandy was
in contempt of court; rather, the sole issue is whether the court
abused its discretion in imposing a sanction of $50.
[16-18] A civil sanction is coercive and remedial; the con-
temnors carry the keys of their jail cells in their own pockets,
because the sentence is conditioned upon continued non-
compliance and is subject to mitigation through compliance.
Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016).
In contrast, a criminal sanction is punitive; the sentence is
determinate and unconditional, and the contemnors do not
carry the keys to their jail cells in their own pockets. Id.A court can impose criminal, or punitive, sanctions only if
the proceedings afford the protections offered in a criminal
proceeding. Id. A criminal or punitive sanction is invalid if
imposed in a proceeding that is instituted and tried as civil
contempt, because it lacks the procedural protections that the
Constitution would demand in a criminal proceeding. Sickler
v. Sickler, supra. In order for the punishment to retain its
civil character, the contemnor must, at the time the sanction
is imposed, have the ability to purge the contempt by compli-
ance and either avert punishment or, at any time, bring it to
an end. Id.- 437 -
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STATE ON BEHALF OF KAADEN S. v. JEFFERY T.
Cite as 26 Neb. App. 421In Maddux v. Maddux, 239 Neb. 239, 475 N.W.2d 524(1991), overruled on other grounds, Smeal Fire Apparatus Co.
v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010), the
Nebraska Supreme Court found plain error in the trial court’s
imposition of a punitive sanction in a civil contempt proceed-
ing. Specifically, the trial court held the father in contempt for
failure to pay child support. The court ordered that unless the
father paid the amount due, he was sentenced to 30 days in jail
commencing April 1, 1989. The Supreme Court determined
that the order ceased to be coercive on April 1, because the
jail sentence was no longer subject to mitigation. If the child
support amounts due were not paid by April 1, the father was
required to serve a punitive 30-day sentence, regardless of
whether the amounts were paid subsequent to that date, and
thus, the father no longer would be “‘holding the keys to his
jail cell’” after April 1. Id. at 242, 475 N.W.2d at 528. The
Supreme Court iterated that an unconditional penalty is crimi-
nal in nature because it is solely and exclusively punitive in
character. Id.[19,20] Relying upon Maddux v. Maddux, supra, this court
has recognized that a fine is an appropriate sanction in a civil
contempt proceeding so long as the contemnor may avoid the
fine by complying with the court’s order. See Jessen v. Jessen,
5 Neb. App. 914, 567 N.W.2d 612 (1997), overruled on other
grounds, Smeal Fire Apparatus Co. v. Kreikemeier, supra. In
contrast, an unconditional fine is not an appropriate sanction in
a civil contempt proceeding because the contemnor is unable to
avoid the fine through his or her conduct. Id.In the present case, the district court imposed an uncon-
ditional fine upon Mandy. The court provided no method
for Mandy to avoid the fine through her conduct, and thus,
the sanction was punitive rather than coercive. Because the
matter was tried as a civil contempt, a solely punitive sanc-
tion was improper. We therefore vacate the punitive sanction
and remand the cause for imposition of a proper coercive
sanction.
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Cite as 26 Neb. App. 421Attorney Fees
Jeffery asserts that the district court’s denial of his request
for attorney fees was in error. We find no abuse of discretion.
In a paternity action, attorney fees are reviewed de novo on
the record to determine whether there has been an abuse of
discretion by the trial judge. Drew on behalf of Reed v. Reed,
16 Neb. App. 905, 755 N.W.2d 420 (2008). Absent such an
abuse, the award will be affirmed. Id.The district court ordered that each party pay its own attor-
ney fees and costs. We understand Jeffery’s argument that
Mandy’s actions resulted in his incurring additional attorney
fees which he otherwise would not have incurred. However,
given the financial circumstances of the parties, we find that it
was not an abuse of discretion for the court to order the parties
to pay their own fees and costs.
CONCLUSION
We affirm in part, vacate in part, and in part reverse and
remand with directions as explained above.
A ffirmed in part, vacated in part, and in part
reversed and remanded with directions.