Cech v. Cech , 30 Neb. Ct. App. 618 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/15/2022 08:07 AM CST
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
CECH v. CECH
Cite as 30 Neb. App. 618Bryan M. Cech, appellee, v. April L.
Cech, now known as April L.
VanAndel, appellant.
___ N.W.2d ___
Filed February 15, 2022. No. A-20-783.
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 the trial
court’s (1) resolution of issues of law is reviewed de novo, (2) factual
findings are reviewed for clear error, and (3) determinations of whether
a party is in contempt and of the sanction to be imposed are reviewed
for abuse of discretion.
2. Contempt: Judgments. A judgment of contempt must state the facts
constituting the contempt, and a judgment which merely states the
conclusion of the court will not sustain a sentence of imprisonment
for contempt.
3. Contempt: Judgments: Appeal and Error. An order or judgment of
direct contempt must contain a statement of the facts upon which the
decision is based, the purpose of this requirement being to enable the
appellate court to determine, by an inspection of the record, whether a
contempt has in fact been committed and whether the court had jurisdic-
tion to punish it.
4. Appeal and Error. An appellate court is not obligated to engage in
analysis which is not needed to adjudicate the controversy before it.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Vacated and remanded with directions.
John W. Ballew, Jr., of Ballew Hazen, P.C., L.L.O., and, on
brief, Adam R. Little for appellant.
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CECH v. CECH
Cite as 30 Neb. App. 618W. Gregory Lake, of Nebraska Legal Group, for appellee.
Riedmann and Welch, Judges.
Welch, Judge.
I. INTRODUCTION
April L. Cech, now known as April L. VanAndel, appeals
from the order of the Lancaster County District Court granting
Bryan M. Cech’s motion for contempt and entering sanctions
against her for alleged violations of the parties’ dissolution
decree and parenting plan. Specifically, April contends that
the district court’s finding that her contempt was willful was
clearly erroneous, that the court abused its discretion in find-
ing that she was in contempt of the court orders and applying
punitive or excessive sanctions, and that the court relied on
evidence outside the scope of the record in ruling on Bryan’s
motion to alter or amend. For the reasons stated herein, we
vacate the district court’s order finding April in contempt, the
purge order, and the further order of the purge plan, and we
remand the cause with directions.
II. STATEMENT OF FACTS
1. Background
April and Bryan were previously married and had one child,
Addyson Cech, born in 2010. In November 2011, the district
court entered a dissolution decree awarding the parties joint
legal and physical custody of Addyson.
In January 2016, the district court modified the original
decree awarding April sole legal and physical custody of
Addyson subject to Bryan’s parenting time every other week-
end from Friday at 6 p.m. to Sunday at 6 p.m. Bryan filed a
motion to alter or amend, which was denied by the court except
for decreasing Bryan’s child support. In its order governing
Bryan’s motion to alter or amend, the district court noted that
Bryan had made serious allegations regarding April’s alleged
violation of the provisions for the “Parental Communications
and Resolution of Conflict” rules.
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CECH v. CECH
Cite as 30 Neb. App. 618Of serious concern is [Bryan’s] claim that [April] has
failed to comply with the . . . Parental Communications
and Resolution of Conflict provisions set forth in the
Parenting Plan attached to the court’s Order. Specifically,
[Bryan] claims [April] has refused to facilitate commu-
nication and parenting time after the entry of the Order
and that she has continually used profanity, communica-
tion blocking and [had] volatile exchanges with [Bryan].
[Bryan’s] written argument to the court included some
written materials in support of the motions at issue which
suggest the behavior of [April] has been improper and
in violation of the Order and the court’s Local Rules as
to Parental Responsibilities and Cooperation (attached
hereto). The court is deeply troubled by this information.
Such behavior, if true, is contrary to the best interest of
the minor child. However, the court does not find a new
trial should be ordered on this basis. To the extent [April]
fails to follow the court’s Order and the Local Rules
of this jurisdiction as to parenting responsibilities and
cooperation, [April] risks creating the basis upon which a
court might enter a change relative to custody or parent-
ing time in the future.
In June 2019, the parties stipulated to a modification and
parenting plan which was approved by the court. The parenting
plan required the parties to communicate regarding Addyson’s
school, activities, and medical needs; be on time to parenting
time exchanges and notify if there are any delays; not schedule
activities during the other parent’s visitation; and use utmost
cooperation when dealing with each other. The primary form
of communication between the parties, as determined in the
plan, was to occur via “written electronic form through the
app found at talkingparents.com (or some other form of com-
munication).” Additionally, the plan provided that the parties
were to communicate “in a respectful and businesslike manner
without language that is derogatory, accusatory, or inflamma-
tory.” The plan also provided each parent with “reasonable
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CECH v. CECH
Cite as 30 Neb. App. 618and liberal telephone contact with the minor child during nor-
mal waking hours of the minor child when the minor child is
with the other parent.” This parenting plan is the subject of the
contempt violations.
2. Motion for Contempt
In February 2020, Bryan filed a motion for contempt and a
supporting affidavit, alleging that April had violated the par-
enting plan. Bryan alleged specific violations of paragraphs 8,
10 through 14, 16, 17, 24, and 26 through 28 of the parenting
plan, as well as April’s violation of the local rules of the juris-
diction relating to parenting responsibilities and cooperation.
Bryan contended that April refused to ­cooperate in fundamen-
tal decisionmaking; made unilateral decisions; used disparaging
language; failed to keep Bryan informed of school, activities,
and medical updates; refused to use the ­coparenting applica-
tion to communicate; did not communicate in a “­business-like
manner”; listened in on telephone calls between Bryan and
Addyson; did not permit Bryan the right of first refusal to
watch Addyson when April was working; did not update
appointments or events in the coparenting application; did not
seek agreement with Bryan on enrollment in activities; and
did not schedule appointments using the scheduling confer-
ence method. April filed a cross-motion for contempt, which
alleged that Bryan inquired into April’s affairs and interrogated
Addyson in violation of paragraph 10, failed to inform April
of medical issues as required in paragraph 12, refused to com-
municate via other means as permitted in paragraph 16, refused
to allow April to have telephone contact as required in para-
graph 17, refused to ensure Addyson’s attendance in activities
according to paragraph 27, unreasonably withheld consent for
appointments to be scheduled in violation of paragraph 28, and
did not first use mediation as required in paragraph 35.
The court scheduled a show cause hearing on both parties’
motions for July 29, 2020. However, prior to the hearing, the
court entered a temporary order in which the court updated
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Cite as 30 Neb. App. 618the parenting time schedule, preserved all previous orders and
parenting plans, and required the parties to cooperate with each
other. The court ordered the parties to abide by the temporary
order and indicated their failure to do so was punishable by “all
remedies available to the Court, including contempt.”
3. Contempt Hearing
The show cause hearing on both parties’ motion for con-
tempt was held as scheduled on July 29, 2020. Both April and
Bryan provided testimony regarding the allegations of con-
tempt. The court received into evidence the June 2019 parent-
ing plan, text conversations between the parties, the coparent-
ing application conversations, calendar entries, photographs,
and work schedules. The court entered an order the following
day finding April in “willful and contumacious contempt,”
while scheduling an August 4 hearing for imposition for “rem-
edies and sanctions, as well as, [April’s] plan for the purge of
any sanctions.”
4. Orders
The court entered three orders regarding the contempt pro-
ceedings as they related to April. The first order, dated July 30,
2020, found April in contempt and set the matter for a hear-
ing on possible sanctions. Following that hearing, on August
13, the court entered its order for sanctions against April and,
additionally, in a separate order, denied April’s cross-motion
for contempt relating to Bryan based upon its finding that April
did not make a showing of willful and contumacious viola-
tions of the court’s order. Then, following a motion to alter or
amend filed by Bryan requesting further sanctions, the court on
October 14 entered its further order. The respective orders are
quoted under subsections (a), (b), and (c) below.
(a) July 2020 Order of Contempt
The first order dated July 30, 2020, finding April in con-
tempt stated:
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CECH v. CECH
Cite as 30 Neb. App. 618This matter came before the Court on June 30, 2020
. . . . The Court, being fully advised, enters the following
findings and order.
[Bryan] alleged that [April] has been in contempt of
this Court because [April] has failed to comply with the
prior Orders of the Court. Upon consideration of the file,
records, and the evidence, the Court finds that [April]
was, at the times material hereto, in willful and contuma-
cious contempt of the orders of this Court.
The recent Supreme Court decision in Smeal Fire
Apparatus Co. v. Kreikemeier, 279 Neb. 661, 675-76[,
782 N.W.2d 848, 861-63] (2010)[, disapproved, Hossaini
v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012),]
made some fairly sweeping changes to the civil con-
tempt landscape. It is with the backdrop of Smeal and
the increased ability of the Court to consider appropriate
remedies that this Court now sets a hearing for the con-
sideration of remedies and sanctions.
Therefore, having found [April] in contempt the Court
sets the matter of the remedies and sanctions, as well as
[April’s] plan for the purge of any sanction as follows: . . . .
[April] is ordered to appear at that date and time.
To the extent there has not been an agreement prior
to the hearing, the parties shall be prepared to propose
the remedies and sanctions to be adopted by the Court,
including the payment of reasonable attorney’s fees and
the plan for [April] to be purged of the contempt.
(Emphasis in original.)
(b) Order for Sanctions
Following the entry of the order of contempt, the district
court set the matter for a hearing to determine sanctions to be
imposed and discussed a plan for the parties to be able to pro-
vide thoughts on an appropriate sanction. The court’s August
13, 2020, order for sanctions provided:
The violations are serious as reflected by the past and
recent record. [April] appears to be a good mother with
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CECH v. CECH
Cite as 30 Neb. App. 618one exception - she has done a poor job of co-parenting.
That exception tarnishes her qualities as a parent, is seri-
ous, and is contrary to the best interests of the minor child
she parents. She has been admonished more than once.
[April] has generally only been compliant when a show
cause hearing is threatened or looming. Certainly, there is
evidence that reflects [Bryan’s] fault in provoking [April]
in certain ways, but she simply has not responded to those
provocations calmly, thoughtfully, and cooperatively.
The Nebraska Supreme Court decision in Smeal Fire
Apparatus Co. v. Kreikemeier, 279 Neb. 661, 675-76[,
782 N.W.2d 848, 861-63] (2010)[, disapproved, Hossaini
v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012),]
made some fairly sweeping changes to the civil con-
tempt landscape. It is with the backdrop of Smeal and
the increased ability of the Court to consider appropriate
remedies that this Court now sets a hearing for the con-
sideration of remedies and sanctions.
One of the purge remedies available to the Court was
a change in custody. There is legal authority to do so. 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
principles 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, Nebraska law provides, 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 court
orders relating to parenting time, visitation, or other
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Cite as 30 Neb. App. 618access. The court may use contempt powers to enforce its
court orders relating to parenting time, visitation, or other
access.” Neb. Rev. Stat. § 42-364.15 (emphasis added).
While the Court has some inclination to change cus-
tody, it does not appear to be in the best interests of the
minor child to make such a change at this moment in
time. Further, [Bryan] has not asked for a jail commit-
ment for understandable reasons. (However, it should not
be lost on [April] that this Court has, in the past, ordered
such a commitment in these sorts of cases.)
Yet, something significant must be done.
IT IS THEREFORE ORDERED AS FOLLOWS:
A. That [April] may purge herself of the contempt as
follows:
1. Compliance: [April] shall strictly comply with
Appendix 4 of the Rules of the District Court for the
Third Judicial District regarding Parenting Responsibility
and Cooperation.
2. Counselling/Class: Within 90 days of the date of this
Order, [April] shall have completed a second (2nd) level
parenting education course in person at her cost. . . .
3. Attorney fees: [April] shall pay [Bryan] $2,400
toward [Bryan’s] attorney fees. [April] shall pay no less
than $200.00 per month beginning September 1, 2020 and
each month thereafter until paid in full.
4. Attitude: With the expectation that it might be recip-
rocated, [April] shall show flexibility and shall work
with [Bryan] so that the fixed parenting schedule may
be adjusted or temporarily modified in length, timing, or
terms upon reasonable advance notice, when agreed and
appropriate.
If [April] strictly complies with the terms and condi-
tions of this Order for a period of 18 months, [April]
shall have purged herself of the contempt. However, in
the event [April] fails to purge herself of the contempt,
and [Bryan] submits a proper affidavit reflecting [April’s]
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Cite as 30 Neb. App. 618failure to so purge the contempt, the Court will sched-
ule a hearing to determine what additional sanctions may
be necessary to bring [April] into compliance with the
Orders of the Court.
B. Additionally, the actions of [April] demand some
change in the parenting schedule. Therefore, the parent-
ing plan of the parties shall be modified. Notwithstanding
anything to the contrary in any prior Order of the Court:
[Bryan] shall exercise parenting time with the minor
child during the summer school vacation (using the in
person, published schedule of the Lincoln, Nebraska,
public schools) as follows: [Bryan] shall have summer
parenting time commencing one calendar week following
the release of the minor child for the summer until one
calendar week before school resumes. During [Bryan’s]
summer parenting time [April] shall have two weeks of
uninterrupted parenting time with the minor child begin-
ning at 5:00 pm on the third Sunday in July each year.
(Emphasis in original.)
(c) October 2020 Order
In August 2020, Bryan filed a “Motion to Reconsider, Alter,
Amend, Vacate or Set [Aside the Judgment] and Parenting
Plan” due to additional violations by April. Bryan alleged that
April requested, via her attorney, to switch weekend parenting
time; alleged that April failed to accommodate Bryan’s request
to “delay drop off” due to inclement weather; and challenged
Addyson’s indication to Bryan that she did not want to live
with him during the summer. Bryan requested clarification
governing April’s expectations for Addyson to attend certain
summer activities during Bryan’s parenting time, since the
court failed to address them. Bryan further requested custody
of Addyson and entry of an order permitting him to enroll
Addyson in therapy. April objected to Bryan’s motion because
the motion contained confidential communications regarding
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Cite as 30 Neb. App. 618settlement, referenced evidence not presented at trial, and
attempted to improperly alter the parenting plan.
Following a hearing held on October 14, 2020, the district
court entered an order that did not make further factual find-
ings but found further contempt by April and granted Bryan’s
motion in part, and in part denied it. In its October 14 order, the
court specifically found:
The Parenting Plan of the parties, entered on the 27th
day of June, 2019, shall be modified.
Notwithstanding anything to the contrary in any prior
Order of the Court:
1. [Bryan] shall exercise parenting time with the minor
child during the summer school vacation (using the in
person, published schedule of the school in which the
minor child is enrolled) as follows: [Bryan] shall have
summer parenting time commencing one calendar week
following the release of the minor child for the summer
until one calendar week before school resumes. During
[Bryan’s] summer parenting time [April] shall have two
weeks of uninterrupted parenting time with the minor
child beginning at 5:00 pm on the third Sunday in July
each year and concluding at 5:00 pm on Sunday two
weeks later.
2. Paragraph 27 of the Parenting Plan, entered on the
27th day of June, 2019, is amended and shall now read as
follows: “Both parents shall confer and attempt to agree
upon all extra-curricular activities in which the minor
child is to participate. In the event they cannot agree, then
[April] shall have final say on events occurring during
the school year (using the in person, published schedule
of the school in which the minor child is enrolled), while
[Bryan] shall have final say on events occurring during the
summer break (using the in person, published schedule of
the school in which the minor child is enrolled). Neither
parent shall enroll or sign the minor child up for any
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Cite as 30 Neb. App. 618event or activity which shall fall on, or interfere with,
the other parent’s parenting time without notice to the
other party and written consent. Neither parent shall unrea-
sonably withhold their consent without good cause.[”]
3. [Bryan] shall have the sole legal right to enroll the
minor child into counseling as he deems necessary and
he shall be solely responsible for all costs associated with
such counseling. [April] shall work and cooperate with
[Bryan] in setting up all counseling sessions and she shall
ensure that the minor child is available and present for
any/all counseling sessions regardless of the date upon
which said counseling sessions shall be set.
4. In all other respects, the Order re Purge Plan after
finding Contempt, entered by the Court on August 13,
2020, remains in full force and effect.
April has timely appealed to this court challenging the
court’s orders finding her in contempt and imposing sanctions
against her.
III. ASSIGNMENTS OF ERROR
April assigns as error that (1) the district court abused its
discretion when it found her in willful contempt of the court’s
orders; (2) the sanctions imposed were punitive, excessive, and
an abuse of the court’s discretion; and (3) the court improperly
relied on evidence outside the scope of the record in ruling on
Bryan’s motion to alter or amend.
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 appel-
late court employs a three-part standard of review in which the
trial court’s (1) resolution of issues of law is reviewed de novo,
(2) factual findings are reviewed for clear error, and (3) deter-
minations of whether a party is in contempt and of the sanction
to be imposed are reviewed for abuse of discretion. Patera v.
Patera, 24 Neb. App. 425, 889 N.W.2d 624 (2017).
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Cite as 30 Neb. App. 618V. ANALYSIS
April’s first assignment of error is that the district court
erred in finding that she was in willful disobedience of the
court’s prior dissolution decrees. In part, April takes issue with
the district court’s failure to make findings of fact, in connec-
tion with its ultimate conclusion, that “[u]pon consideration of
the file, records, and the evidence, the Court finds that [April]
was, at the times material hereto, in willful and contumacious
contempt of orders of this Court.” April argues that the court’s
complete lack of factual findings in connection with its conclu-
sion make it difficult to explain exactly how the court erred in
its analysis. April goes on to surmise that the court’s findings
were likely in reference to some part of the record govern-
ing her alleged failure to provide all communications on the
“Talking Parents App” and goes on to explain an interpretation
of paragraph 16 of the parenting plan and how she was not
willfully disobedient in connection with her communications.
Brief for appellant at 7.
Bryan states that the finding mentioned above presents
one such possibility, but suggests there were numerous other
allegations which could separately support the district court’s
ultimate conclusion here, and that the district court did not
clearly err in whatever factual finding or findings informed the
court’s decision.
The court’s one-sentence conclusory finding of contempt
makes it difficult for this court to perform a review in the
context of a case like this, where there are a series of decrees
and numerous general allegations of noncompliance that relate
to multiple specified portions of the decrees. For this court to
review the district court’s decision, to some degree, we have to
speculate on what portion or portions of the decrees the district
court found were directly impacted by the allegations and then
further speculate on what specific evidence the court related
to those portions of the court’s orders in ultimately finding
that April was in contempt. This becomes even more difficult
when April separately assigned error to the excessiveness of
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Cite as 30 Neb. App. 618the sanction when it is unclear which allegation, portion of
the decrees, or specific violation occurred in the eyes of the
district court.
[2,3] In Tastee Inn, Inc. v. Beatrice Foods Co., Inc., 167
Neb. 264, 270, 92 N.W.2d 664, 667 (1958), in reviewing a
judgment of direct criminal contempt (contempt occurring
in the court’s presence), the court examined prior jurispru-
dential requirements in connection with similar proceedings
and stated: “Gonzalez v. State, 119 Neb. 13, 226 N. W. 801[(1929)], declares: A judgment of contempt must state the
facts constituting the contempt, and a judgment which merely
states the conclusion of the court will not sustain a sentence of
imprisonment for contempt.’” Later in the analysis section of
the opinion, the court stated:
Annotation, 154 A. L. R. 1228, refers to very numerous
decisions in support of the statement: “It has been held, in
the overwhelming majority of jurisdictions, that an order
or judgment of direct contempt must contain a statement
of the facts upon which the decision is based, the purpose
of this requirement being to enable the appellate court to
determine, by an inspection of the record, whether a con-
tempt has in fact been committed and whether the court
had jurisdiction to punish it.”
Tastee Inn, Inc. v. Beatrice Foods Co., Inc., 167 Neb. at 273-
74, 92 N.W.2d at 669.
In State v. Harker, 8 Neb. App. 663, 672, 600 N.W.2d
488, 495 (1999), this court cited to Tastee Inn, Inc., supra,and Gonzalez v. State, 119 Neb. 13, 226 N.W. 801 (1929),
explaining:
The requirements of a formal order stating the facts
which justify the contempt finding makes sense in the light
of the fact that in direct contempt there is no information,
complaint, or other document showing the charges against
the defendant, or the court’s findings. The above author-
ity clearly holds the conclusion of guilt is not sufficient.
In the case at hand, the defendant uttered an expletive
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Cite as 30 Neb. App. 618eight times and another expletive one time. He was con-
victed of three acts of contempt. For double jeopardy
purposes, if for no other, [the contemnor] was entitled to
specific findings on which acts or combinations thereof
resulted in each of the three convictions.
That is not to say there are no differences between a direct
contempt criminal proceeding and a civil contempt proceeding
of this nature. In the latter, there is at least a pleading which
makes various allegations against the alleged contemnor from
which some framework can be drawn. But in a case like this
one where there are numerous general allegations focusing on
multiple portions of the court’s decrees that were allegedly vio-
lated, it becomes equally difficult to determine the basis of the
court’s contempt finding for purposes of appellate review.
We further note that in Hossaini v. Vaelizadeh, 283 Neb.
369, 375, 808 N.W.2d 867, 873 (2012), the Nebraska Supreme
Court changed the standard of review for civil contempt orders,
holding that
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 determi-
nations of whether a party is in contempt and of the sanc-
tion to be imposed are reviewed for abuse of discretion.
[4] Without findings of fact by the district court in a case
of this nature which involves multiple court orders and allega-
tions of noncompliance, we are unable to perform a meaningful
review of the factual findings, the determination of contempt, or
the fairness of sanctions on a blanket conclusion that contempt
has occurred without reference to anything more. Accordingly,
we vacate, and remand with directions for the court to make
specific findings of fact previously made in connection with
its July, August, and October 2020 contempt orders. Having
determined that this cause must be remanded, we need not
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Cite as 30 Neb. App. 618consider April’s remaining assigned errors. An appellate court
is not obligated to engage in analysis which is not needed to
adjudicate the controversy before it. Ryan v. Streck, Inc., 309
Neb. 98, 958 N.W.2d 703 (2021).
VI. CONCLUSION
Having determined that the district court was required to
make factual findings regarding its contempt determination,
we vacate the district court’s order finding April in con-
tempt, the purge order, and the further order of the purge plan,
and we remand the cause with directions for the court to enter
an order with specific factual findings regarding its finding
of contempt.
Vacated and remanded with directions.
Moore, Judge, participating on briefs.