- 227 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

Clayton B. Schroeder, appellee, v. 

Maria A. Schroeder, now known as

Maria A. Michaelis, appellant.

___ N.W.2d ___

Filed August 21, 2018. No. A-17-874.

1. 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.

2. Judgments: Pleadings: Appeal and Error. A motion to alter or amend 

a judgment is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.

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 sanction to be imposed are reviewed for abuse of discretion.

4. Contempt: Proof. Outside of statutory procedures imposing a different 

standard, it is the complainant’s burden to prove civil contempt by clear 

and convincing evidence.

5. Child Custody. While the wishes of a child are not controlling in 

the determination of custody, if a child is of sufficient age and has 

expressed an intelligent preference, the child’s preference is entitled to 

consideration.

6. Judgments. In the absence of a request by a party for specific findings, 

a trial court is not required to make detailed findings of fact and need 

only make its findings generally for the prevailing party.

7. Trial. Even where the civil procedure code mandates specific findings, 

it does so only upon a party’s request.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/28/2018 09:09 AM CDT
- 228 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

8. Trial: Time. Motions for specific findings of fact pursuant to Neb. Rev. 

Stat. § 25-1127 (Reissue 2016) must be made before the final submission of the case to the court.

9. Contempt: Words and Phrases. When a party to an action fails to 

comply with a court order made for the benefit of the opposing party, 

such an act is ordinarily a civil contempt, which requires willful 

disobedience as an essential element. “Willful” means the violation 

was committed intentionally, with knowledge that the act violated the 

court order.

10. Contempt: Presumptions: Proof. Outside of statutory procedures 

imposing a different standard or an evidentiary presumption, all elements of contempt must be proved by the complainant by clear and 

convincing evidence.

11. Divorce: Attorney Fees: Costs. Customarily in dissolution cases, attorney fees and costs are awarded only to prevailing parties or assessed 

against those who file frivolous suits.

12. Modification of Decree: Attorney Fees: Appeal and Error. In an 

action for modification of a dissolution decree, the award of attorney 

fees is discretionary with the trial court, is reviewed de novo on the 

record, and will be affirmed in the absence of an abuse of discretion.

13. Attorney Fees. Attorney fees and expenses may be recovered only 

where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.

14. Divorce: Modification of Decree: Attorney Fees. A uniform course of 

procedure exists in Nebraska for the award of attorney fees in dissolution and modification cases.

15. Attorney Fees. The award of attorney fees depends on multiple factors 

that include the nature of the case, the services performed and results 

obtained, the earning capacity of the parties, the length of time required 

for preparation and presentation of the case, customary charges of the 

bar, and general equities of the case.

Appeal from the District Court for Douglas County: Peter

C. Bataillon, Judge. Affirmed.

Benjamin E. Maxell, of Govier, Katskee, Suing & Maxell, 

P.C., L.L.O., for appellant.

Matthew Stuart Higgins, of Higgins Law, for appellee.

Pirtle, Riedmann, and Bishop, Judges.
- 229 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

Pirtle, Judge.

INTRODUCTION

Maria A. Schroeder, now known as Maria A. Michaelis, 

appeals the order of modification entered by the district court 

for Douglas County on June 20, 2017, and the order overruling her motion to alter or amend, filed August 7. The court 

denied Maria’s request to hold her former husband, Clayton B. 

Schroeder, in contempt of court and granted Clayton’s request 

for legal custody and attorney fees. The court denied Clayton’s 

request to hold Maria in contempt of court. For the reasons that 

follow, we affirm.

BACKGROUND

Clayton and Maria were married in June 2002 and divorced 

in June 2006. Their daughter, Alexis Schroeder (Lexi), was 

born in May 2004. The original decree of dissolution was 

entered on June 8, 2006. The parties have returned to the district court for Douglas County numerous times for the purpose 

of modifying their decree or to allege violations of the decree 

by the other party.

In the present matter, Clayton filed a complaint to modify 

and an application for contempt citation on March 15, 2016. 

He alleged that Maria had scheduled and fostered Lexi’s participation in a number of activities without giving Clayton 

notice or obtaining his consent. He argued that third parties, 

including coaches and school officials, were not honoring the 

authority given to him by the district court in an order entered 

in December 2015. He argued that Maria defied his authority by interacting with third parties on Lexi’s behalf without 

Clayton’s consent or knowledge. Clayton requested that he be 

awarded full legal custody of Lexi and that Maria be held in 

contempt of court.

Maria filed an application to modify and an application for 

contempt citation on November 30, 2016. She alleged that 

Clayton acted unilaterally, in violation of the court’s orders. 

She also alleged that Clayton was in contempt of the provision 
- 230 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

regarding telephone calls to the nonpossessory parent. She 

also requested that she be awarded legal custody of Lexi and 

attorney fees.

Trial was held on April 25 and 26, 2017, and the court 

issued a written order on June 20. The court found that both 

parties had the best interests of their child at heart, but they 

“cannot agree or get along as to how to best raise their child 

in lieu of a variety of activities and how to provide each party 

their respective time with the child that is somewhat uninterrupted by the variety of activities that are scheduled and to 

which they disagree.” The court found that “[b]ecause of the 

continued and unrelenting problems the parties continued to 

have,” there had been a material change in circumstances. 

The court observed that the parties could not communicate or 

cooperate properly to serve Lexi’s best interests. Therefore, the 

court found it was in Lexi’s best interests to modify the decree, 

and Clayton was granted sole legal custody. The order states, 

“This means that [Clayton] has the sole authority to make the 

decisions for the minor child.”

The court found that Maria was not in contempt of court. 

The court found that Maria had violated the orders of the 

court, but her violations were not done “willfully and contumaciously.” The court found that attorney fees were appropriate and that Maria was to pay Clayton the sum of $10,000. 

The court did not rule on Maria’s request that Clayton be held 

in contempt.

Maria filed a motion to alter or amend and for the court to 

provide more detailed findings. The court acknowledged that 

there had been no ruling on Maria’s request to hold Clayton in 

contempt. The court found Clayton was not in contempt, and 

the motion was overruled. Maria’s motion to alter or amend 

was overruled, and she timely appealed.

ASSIGNMENTS OF ERROR

Maria alleges the court erred in (1) awarding sole legal custody to Clayton; (2) overruling her motion to alter or amend, 

and failing to provide a sufficiently detailed opinion; (3) 
- 231 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

finding Clayton was not in contempt of court; and (4) awarding excessive attorney fees to Clayton.

STANDARD OF REVIEW

[1] 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. 

Floerchinger v. Floerchinger, 24 Neb. App. 120, 883 N.W.2d 

419 (2016).

[2] A motion to alter or amend a judgment is addressed to 

the discretion of the trial court, whose decision will be upheld 

in the absence of an abuse of that discretion. Lombardo v. 

Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).

[3,4] In a civil contempt proceeding where a party seeks 

remedial relief for an alleged violation of a court order, an 

appellate court employs a three-part standard of review in 

which (1) the trial court’s resolution of issues of law is 

reviewed de novo, (2) the trial court’s factual findings are 

reviewed for clear error, and (3) the trial court’s determinations of whether a party is in contempt and of the sanction to 

be imposed are reviewed for abuse of discretion. Hossaini v. 

Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012). Outside 

of statutory procedures imposing a different standard, it is the 

complainant’s burden to prove civil contempt by clear and convincing evidence. Id.

ANALYSIS

Award of Sole Legal Custody to Clayton.

Maria asserts the court abused its discretion in awarding 

legal custody of Lexi to Clayton, because Clayton refuses 

to cooperate or communicate with Maria, he dismisses her 

requests and opinions unilaterally, and he ignores her. She 

argues that she is the more cooperative parent and that she 

takes Lexi’s interests and wishes into account.

Child custody determinations are matters initially entrusted 

to the discretion of the trial court, and although reviewed de 
- 232 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

novo on the record, the trial court’s determination will normally be affirmed absent an abuse of discretion. Floerchinger 

v. Floerchinger, supra.

In the order overruling Maria’s motion to alter or amend, the 

court found the evidence showed that after the court granted 

Clayton the final decisionmaking authority, Maria “continued 

to ignore that Order and do as she generally desired with the 

minor child.” The court found that Clayton was better able to 

cooperate with Maria and was more reasonable in the action 

taken as to the activities of Lexi.

The record shows that Clayton and Maria agree that Lexi 

should participate in a variety of activities, but disagree about 

the frequency and extent of Lexi’s involvement. Maria testified that she signed Lexi up for activities which occurred only 

on the days Lexi stayed with her and that if there were times 

when the activity occurred on days Lexi was with Clayton, 

Lexi just would not go. For example, Maria signed Lexi up for 

a swim team and Lexi only attended practices and meets which 

occurred during Maria’s parenting time. Maria’s testimony 

demonstrates her belief that it was not necessary to inform 

Clayton regarding activities Lexi was enrolled in, if Lexi was 

participating only during Maria’s parenting time. Clayton testified that he did not think it was “appropriate” for Lexi to 

“sign up for multiple events and only attend half.” He also 

testified that there were activities and camps that Maria signed 

Lexi up for that he did not find out about until after they had 

taken place.

Maria asserts Clayton made unilateral decisions with regard 

to Lexi’s activities. Clayton testified that he did not make 

any decisions without first consulting with Maria. He said 

there were times when she agreed, times when she disagreed, 

and times that she did not respond in a timely manner to his 

requests for input.

Maria argues that the decision to switch Lexi’s softball 

teams “[took] Lexi away from the friends and team she knows 

best.” Brief for appellant at 13. She also argued that Clayton 
- 233 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

had not taken her input into account in a single decision with 

regard to Lexi’s extracurricular activities. Lexi testified that 

she enjoyed playing on the softball team and the basketball 

team that were coached by her stepfather. Clayton testified that 

he was concerned because the softball team played approximately 40 games during the season and Lexi was involved in 

other activities as well. Because the parties could not agree, 

he exercised the decisionmaking authority the court assigned 

to him and picked another softball team, offering Maria and 

her husband the opportunity to coach with him. The team he 

chose was made up of students who attended the same school 

as Lexi.

Maria also asserts that Clayton refuses to take Lexi’s choice 

of activities into account. The evidence shows that Lexi likes 

to stay busy and that she enjoys a wide variety of sports and 

activities, including volleyball, basketball, piano lessons, softball, swimming, and horseback riding. Clayton testified that 

he takes input from Lexi and from Maria, but recognizes that 

if Lexi was allowed to choose, she would “say yes to everything” and would “overschedule herself.” He stated that he 

was trying to parent and make decisions based upon Lexi’s 

input, whether the activity will fit into the schedules for both 

parents’ families, and whether the schedule Lexi was keeping 

was reasonable.

The evidence shows that the joint legal custody arrangement was unworkable. The parties did not agree on many 

things, and it was causing significant strain on the cooperative 

parental relationship between the parents and stress for Lexi. 

Maria does not argue that a transition to sole legal custody 

was in error; she simply believes that legal custody should 

have been awarded to her. Upon our review of the evidence, 

we find the decision of the district court was not an abuse 

of discretion.

Maria asserts Clayton’s “[f]ear” of Lexi’s testifying at court 

is indicative that he does not take Lexi’s wishes into account. 

Brief for appellant at 17. Clayton stated that he did not want 
- 234 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

Lexi to leave the courthouse feeling the weight of responsibility for the consequences of the outcome of the trial. Upon 

our review, it does not appear that Clayton was fearful of the 

court’s hearing the testimony of Lexi, but, rather, he did not 

want Lexi to feel caught in the middle of her parents. In the 

end, Lexi was asked to testify in camera. Lexi did not speak 

negatively about either parent, and she expressed her desire to 

participate in a number of activities. Her testimony regarding 

both parents was, for the most part, very positive.

Maria asserts the court erred in awarding legal custody of 

Lexi to a parent who chose not to enroll Lexi on a volleyball 

team, despite the fact that volleyball is Lexi’s favorite sport 

and she wants to play volleyball in college. Lexi testified that 

she enjoys volleyball but that the club team “takes up a lot of 

time and most of the people that play for that will — that’s the 

only sport they play. And I don’t want to do that. I want to play 

as many sports as possible.”

Maria asserts there was independent witness testimony 

showing that Clayton’s decisions have had a detrimental effect 

on Lexi and that Clayton abuses his power. Clayton sent letters to two athletic organizations in which Lexi participated, 

indicating that he was Lexi’s legal guardian and that he had 

not given his permission for Lexi to participate. He requested 

that Lexi be removed from the team rosters. In one letter, 

Clayton asserted he was Lexi’s legal guardian, and in the other, 

he asserted that he was “granted sole decision making authority.” The individuals interpreted this communication to mean 

that he possessed sole legal custody of Lexi. Maria argues 

that Clayton expressed he had “sole legal custody” or was 

granted “‘sole decision making authority,’” which statements 

she alleges were “blatantly false” at the time they were made. 

Brief for appellant at 20. The emails, which were entered as 

exhibits, do not show that Clayton asserted that he was Lexi’s 

sole legal guardian, even though that was the inference the 

individuals drew from his statements. This particular argument is not supported by the record, as neither of the witnesses 
- 235 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

testified that Clayton’s actions were detrimental to Lexi. The 

organizations ultimately decided not to honor Clayton’s request 

to remove Lexi from their rosters, and there is no showing that 

the letters affected Lexi in any way.

Maria argues the district court’s “[g]ratuitous [c]omments” 

indicated that the district court was prejudging the evidence 

and that the court had reached a decision on the weight to give 

to Lexi’s testimony prior to her testimony. Brief for appellant 

at 20. The record shows that during the cross-examination 

of Clayton, wherein Lexi was described as “brilliant” and 

“gifted,” the court interjected and stated the view that children 

can be “brilliant,” yet still not always make great decisions 

which are supported by common sense. Maria argues that the 

court had clearly “already made up its mind regarding the 

weight” to be given to Lexi’s testimony and that “it would not 

give any credence to such testimony.” Id. at 21.

Lexi was ultimately allowed to testify, and Maria asserts 

the comments made to Lexi “signified the stance it would take 

on Lexi’s thought process” when the court stated, “‘[W]hat 

you’ve told me so far, may not have anything to do with my 

decision. My decision is basically based upon what your parents have told me so far.’” Id. at 23. Prior to Lexi’s testimony, 

the court informed the parties that, although he does not like 

to involve minor children in these matters, sometimes it is 

necessary. He stated that he does not ask children to answer 

pointed questions that will make them uncomfortable. Rather, 

he said:

I always, depending upon the age, tell them that they 

shouldn’t be concerned as to what they tell me because, 

you know, I may or may not use any of this stuff in my 

decision and I probably won’t use any of this information in my decision to make it as nonpainful [sic] as 

possible.

[5] Nonetheless, Nebraska case law is clear that the court 

should consider “[t]he desires and wishes of the minor child, 

if of an age of comprehension but regardless of chronological 
- 236 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

age, when such desires and wishes are based on sound reasoning.” Neb. Rev. Stat. § 43-2923(6)(b) (Reissue 2016). The 

Nebraska Supreme Court, in applying this provision, has stated 

that while the wishes of a child are not controlling in the 

determination of custody, if a child is of sufficient age and has 

expressed an intelligent preference, the child’s preference is 

entitled to consideration. See Wild v. Wild, 15 Neb. App. 717, 

737 N.W.2d 882 (2007), citing Vogel v. Vogel, 262 Neb. 1030, 

637 N.W.2d 611 (2002).

Upon our review of the court’s comments, we find the district court applied the correct standard of law, considered the 

appropriate factors, and gave the appropriate weight to Lexi’s 

testimony. We find the district court did not abuse its discretion in finding that it was in Lexi’s best interests to grant sole 

legal custody to Clayton.

Motion to Alter or Amend.

Maria asserts the court erred in not sustaining her motion to 

alter or amend and in refusing to include a detailed rationale as 

to why the court chose to award Clayton sole legal custody of 

Lexi. She asserts the district court’s “precursory” order hinders 

her ability to properly prosecute her appeal. Brief for appellant 

at 27.

In the June 20, 2017, order, the court stated:

Since that Decree of Dissolution, the parties have had 

joint legal and physical custody and have had numerous 

problems with each other as to the raising of the minor 

child. There have been numerous filings by each party to 

have the other party held in contempt of court and each 

party has filed applications to modify the Decree.

The Decree was modified by this court on December 

22, 2015, in which the Court found that the parties 

should continue to have joint legal and physical custody 

except that [Clayton] shall have the final decision making 

authority. That has not proved to be effective as the parties are still having problems and each party has recently 
- 237 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

filed Applications to Modify the Decree and Applications 

to Show Cause why the other party should not be held in 

Contempt of Court. This Court has found that both parties have the best interest of their child at heart, however, 

they cannot agree or get along as to how to best raise their 

child in lieu of a variety of activities and how to provide 

each party their respective time with the child that is 

somewhat uninterrupted by the variety of activities that 

are scheduled and to which they disagree.

The court found that there had been a material change of 

circumstances due to the “continued and unrelenting problems 

the parties continue to have.” The court found it was in Lexi’s 

best interests to transfer sole legal custody to Clayton. Maria 

filed a motion to alter or amend on June 27, 2017, requesting 

that the court provide the rationale to support its ruling.

In its August 7, 2017, order, the court acknowledged Maria’s 

request and stated that Clayton was “better able to cooperate” 

with Maria and was “more reasonable in the action taken as to 

the activities of the minor child.” Therefore, the court found 

that it was in the best interests of Lexi that Clayton be granted 

sole legal custody of her.

[6-8] Maria has made no reference to statutes or case law 

requiring the district court to include a detailed rationale in its 

award of custody. In the absence of a request by a party for 

specific findings, a trial court is not required to make detailed 

findings of fact and need only make its findings generally for 

the prevailing party. Hall v. County of Lancaster, 287 Neb. 969, 

846 N.W.2d 107 (2014), overruled on other grounds, Davis v. 

State, 297 Neb. 955, 902 N.W.2d 105 (2017). See Neb. Rev. 

Stat. § 25-1127 (Reissue 2016). The Nebraska Supreme Court 

has held that “even where our civil procedure code mandates 

specific findings, it does so only upon a party’s request.” 

Becher v. Becher, 299 Neb. 206, 215, 908 N.W.2d 12, 23 

(2018). Nebraska case law provides that motions for specific 

findings of fact pursuant to § 25-1127 must be made “before 

the final submission of the case to the court.” Stuczynski v. 
- 238 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

Stuczynski, 238 Neb. 368, 370, 471 N.W.2d 122, 124 (1991). 

Maria’s request for the court to provide a detailed rationale 

was not made until after the case was submitted to the court; 

therefore, the court was not under any obligation to provide 

specific findings.

Further, any deficiency in the district court’s initial order 

appears to have been remedied by the rationale included in 

the order following Maria’s motion to alter or amend. Having 

found the district court did not abuse its discretion in awarding 

Clayton sole legal custody, we find the district court did not 

abuse its discretion in overruling Maria’s motion to alter or 

amend. We further find that the court did not refuse to “include 

a detailed rationale” as to why Clayton was awarded sole legal 

custody. Brief for appellant at 27.

Clayton Was Not in Contempt.

Maria argues the district court erred by not finding Clayton 

in contempt because of his “incessant refusal to allow [her] to 

speak to Lexi on a daily basis via telephone.” Brief for appellant at 24. Specifically, Maria asserts that Clayton should have 

been held in contempt for failing to allow Lexi to call Maria 

while Lexi and Clayton were on vacation in Alaska in the 

summer of 2016. She also argues Clayton was in contempt for 

failing to keep her apprised of Lexi’s whereabouts during that 

vacation. She alleges that Clayton failed to “have Lexi telephone [her] at any point” during the trip. Brief for appellant 

at 24.

[9,10] When a party to an action fails to comply with a court 

order made for the benefit of the opposing party, such an act is 

ordinarily a civil contempt, which requires willful disobedience 

as an essential element. Hossaini v. Vaelizadeh, 283 Neb. 369, 

808 N.W.2d 867 (2012). “Willful” means the violation was 

committed intentionally, with knowledge that the act violated 

the court order. Id. Outside of statutory procedures imposing a 

different standard or an evidentiary presumption, all elements 

of contempt must be proved by the complainant by clear and 
- 239 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

convincing evidence. Martin v. Martin, 294 Neb. 106, 881 

N.W.2d 174 (2016).

The order of the court entered on November 9, 2009, states:

Both parties have further agreed that the minor child 

should have access to telephone contact with the nonpossessory parent, and each parent should have the same 

degree of telephone access with the child. The parent 

with whom the child is staying at any one time shall 

assist the child in initiating calls to or receiving calls 

from the other parent, and shall not unreasonably interfere with such access. Telephone access shall be exercised by the non-possessory parent at reasonable times, 

and for reasonable durations, to take into account the 

child’s school and extracurricular activity schedule, bedtime, and meals.

The telephone provision has been changed a few times, most 

recently in the December 2015 order, which states that “the 

possessory parent or the child shall initiate one phone call to 

the non-possessory parent each day at the appropriate time that 

the parties shall agreed [sic] upon.”

Clayton testified that he allowed Lexi to make daily telephone calls to Maria during the trip. Email records show that 

Clayton notified Maria prior to the trip that telephone service 

would be “as previously decided with all vacations.” He noted 

that Lexi would call at the beginning and near the end of the 

10-day trip and that his cell phone would be off during much 

of the trip because cellular service would be unavailable. At 

trial, Clayton testified that he allowed Lexi to make a call to 

Maria from his cell phone every day. Lexi testified that she 

called Maria “a few times.” When asked to clarify, Lexi stated, 

“I called her whenever I could, but sometimes we got too far 

away from land or something and then nothing was — nothing 

could work.”

Maria testified that she did not receive any telephone calls 

from Lexi for 8 days. She sent daily emails to Clayton noting that she had not talked to Lexi and that his voicemail was 
- 240 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

full, so she had been unable to leave a message. These emails 

were entered as exhibits, as was a record of her cell phone 

call history during that period. Maria testified that Lexi does 

not call her home telephone number, but Maria did not provide a record of calls to or from her home telephone during 

that period.

Upon our de novo review of the record, we cannot say that 

Clayton willfully disobeyed the court order. The evidence 

shows he was not unwilling to allow Lexi to have daily telephone contact with Maria, and Lexi testified that she was in 

regular contact with Maria during the trip. Additionally, the 

record indicates there were circumstances and technological 

limitations during the vacation that were outside of Clayton’s 

control. Accordingly, the district court did not abuse its discretion when it found Clayton was not in contempt.

To the extent that Maria also argues that Clayton was in contempt because he “waits in the wings to rush Lexi off” of calls, 

in an attempt to frustrate her, we find the court did not abuse 

its discretion. Brief for appellant at 25. Maria testified that “for 

the most part she calls me every night,” but she alleged that 

Clayton listened to the calls or forced Lexi to end her calls 

prematurely. On cross-examination, Maria testified that she 

could not recall any other days other than the days during the 

trip when she did not receive a call from Lexi.

Clayton testified that Lexi makes a telephone call to Maria 

every day that she is with him. He also said that there have 

been times when he has heard Maria yelling at Lexi about 

choosing activities that Maria wants Lexi to participate in. 

Clayton testified there have been times that Maria was “grilling” Lexi about her test scores and that the pressure caused 

Lexi to cry. As a result, he said that at times, he stands in 

the area when Lexi talks to Maria to support her. He said, 

“I’m standing in the area so that when I see she reacts with 

tears or fear or wants to hold the phone away that I can say 

you can blame this on me and you can shut the phone call 

down now.”
- 241 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

Lexi testified that nobody listened to her calls when she 

spoke to either parent. Lexi testified that when she is at 

Clayton’s house, the family is “always doing something 

together,” and Maria “likes to talk . . . for a long time on the 

phone,” a habit Clayton does not like. At times, Clayton interrupted Lexi’s telephone calls to tell her it was time to hang up. 

Lexi said that she tries not to “cut [Maria] off in the middle of 

something” and that she has spoken to Clayton about not interrupting her during her calls with Maria. Clayton told Lexi that 

he would let Lexi “keep track” of her time on the telephone on 

her own. Upon our de novo review of the record, we cannot 

say that Clayton’s behavior with regard to Lexi’s daily telephone contact with Maria amounts to contempt.

Attorney Fees.

Maria asserts the district court erred in “arbitrarily” assessing a $10,000 award against her because she was not found to 

be in contempt of court, she did not file any frivolous pleadings, she was not dilatory in conducting her litigation, and 

Clayton was the initiating party of the modification proceedings. Brief for appellant at 26. She asserts the award of attorney fees was punitive.

[11,12] Customarily in dissolution cases, attorney fees and 

costs are awarded only to prevailing parties or assessed against 

those who file frivolous suits. Roberts v. Roberts, 25 Neb. App. 

192, 903 N.W.2d 267 (2017). In an action for modification 

of a marital dissolution decree, the award of attorney fees is 

discretionary with the trial court, is reviewed de novo on the 

record, and will be affirmed in the absence of an abuse of discretion. Id., citing Garza v. Garza, 288 Neb. 213, 846 N.W.2d 

626 (2014).

[13,14] Attorney fees and expenses may be recovered only 

where provided for by statute or when a recognized and 

accepted uniform course of procedure has been to allow recovery of attorney fees. Garza v. Garza, supra. A uniform course 

of procedure exists in Nebraska for the award of attorney fees 
- 242 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

in dissolution and modification cases. See, id.; Nimmer v. 

Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979). Thus, there 

was authority, in this modification of a dissolution decree case, 

for awarding attorney fees.

[15] The award of attorney fees depends on multiple factors 

that include the nature of the case, the services performed and 

results obtained, the earning capacity of the parties, the length 

of time required for preparation and presentation of the case, 

customary charges of the bar, and general equities of the case. 

Sitz v. Sitz, 275 Neb. 832, 749 N.W.2d 470 (2008).

The original application to modify was filed in 2009, and 

multiple complaints to modify have been filed prior to the 

instant case. Clayton sought modification of the decree in this 

case because the parties had difficulty reaching cooperative 

agreements regarding Lexi’s best interests when they shared 

legal custody. Clayton testified that he has spent approximately 

$100,000 throughout the ongoing modification cases, and he 

requested, and was awarded, $10,000 for fees related to this 

action. He requested sanctions against Maria in the amount of 

$5,000, which the court denied.

Maria asserts that “no evidence exists within the record to 

support a finding as to the specific Ten Thousand Dollar and 

No Cent ($10,000.00) amount awarded by the District Court.” 

Brief for appellant at 27. This assertion is not supported by the 

record. Clayton’s request was supported by exhibit 26, the affidavit of Clayton’s counsel, which was received without objection from Maria’s counsel. Exhibit 26 contains an accounting 

of attorney fees incurred between April 1, 2015, and April 24, 

2017, and an estimate of 6 hours of trial time. The total came 

to just under $10,000. Trial took place over the course of 2 

days, April 25 and 26. We note that Maria’s attorney submitted an affidavit in support of Maria’s motion for attorney fees 

requesting an amount similar to Clayton’s counsel: $6,551.92 

for pretrial expenses and approximately $4,000 for anticipated 

trial expenses and fees.
- 243 -

Nebraska Court of Appeals Advance Sheets

26 Nebraska Appellate Reports

SCHROEDER v. SCHROEDER

Cite as 26 Neb. App. 227

The court found that Maria had violated the court’s order, 

but that her violation was not willful or contumacious; as such, 

she was not found to be in contempt. As previously discussed, 

Clayton was not found to be in contempt of the court’s orders 

and he prevailed in his request for sole legal custody of Lexi. 

Although Clayton initiated this action, the record shows that 

he was prompted to file by Maria’s continued attempts to circumvent the spirit of the court’s previous order, which ordered 

the parties to have joint legal custody but granted Clayton the 

“final decision making authority.” The order also stated, “With 

regard to the sporting events, in order for there to be sporting 

events, the parties have to agree as to that event.” Maria was 

aware of Clayton’s activity preferences for Lexi, but Maria 

signed Lexi up for activities which Lexi would only attend 

during Maria’s parenting time and she did not keep Clayton 

informed about these extracurricular activities. The standard of 

review in this case is whether the court abused its discretion, 

and we conclude that it did not and that the amount of the fee 

was not unreasonable.

CONCLUSION

We find the district court did not abuse its discretion in 

awarding sole legal custody to Clayton, in awarding him attorney fees of $10,000, or in finding that he was not in contempt. 

The court did not abuse its discretion in overruling Maria’s 

motion to alter or amend.

Affirmed.