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KITSMILLER V. KITSMILLER

Cite as 31 Neb. App. 473

Annette Marie Kitsmiller, appellee, v. 

Mark Joseph Kitsmiller, appellant.

___ N.W.2d ___

Filed December 6, 2022. No. A-21-951.

1. Juvenile Courts: Parental Rights: Appeal and Error. Termination of 

parental rights cases raised under Neb. Rev. Stat. § 42-364(5) (Cum. 

Supp. 2020) are reviewed de novo on the record, and an appellate court 

is required to reach a conclusion independent of the juvenile court’s 

findings.

2. Parental Rights: Proof. Terminating parental rights requires both clear 

and convincing evidence that one of the statutory grounds enumerated in 

Neb. Rev. Stat. § 43-292 (Reissue 2016) exists and clear and convincing 

evidence that termination is in the best interests of the children.

3. Parental Rights: Words and Phrases. Termination of parental rights is 

a final and complete severance of the child from the parent and removes 

the entire bundle of parental rights. With such severe and final consequences, parental rights should be terminated only in the absence of any 

reasonable alternative and as the last resort.

4. Modification of Decree: Child Custody: Visitation: Child Support: 

Appeal and Error. Modification of a judgment or decree relating to 

child custody, visitation, or support is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, 

and will be affirmed absent an abuse of discretion.

5. Modification of Decree: Child Custody: Proof. Prior to modification 

of a child custody order, two steps of proof must be taken by the party 

seeking modification. First, the party seeking modification must show 

by a preponderance of the evidence a material change in circumstances 

that has occurred after the entry of the previous custody order and that 

affects the best interests of the child. Second, the party seeking modification must prove that changing the child’s custody is in the child’s 

best interests.

Nebraska Supreme Court Online Library

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

12/06/2022 09:04 AM CST
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Cite as 31 Neb. App. 473

6. Modification of Decree: Words and Phrases. Generally speaking, a 

material change in circumstances is the occurrence of something which, 

had it been known to the dissolution court at the time of the initial 

decree, would have persuaded the court to decree differently.

7. Trial: Guardians Ad Litem. The weight given to the opinion of a 

guardian ad litem is in the trial court’s discretion.

8. 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.

9. Contempt. When a party to an action fails to comply with a court order 

made for the benefit of the opposing party, such act is ordinarily civil 

contempt, which requires willful disobedience as an essential element.

10. 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.

12. Attorney Fees: Appeal and Error. A trial court’s determination of 

requests for sanctions and for attorney fees are both reviewed for an 

abuse of discretion.

Appeal from the Separate Juvenile Court of Lancaster 

County: Shellie D. Sabata, Judge. Affirmed.

Angelica W. McClure of Kotik & McClure Law, for 

appellant.

Stefanie S. Flodman, of Johnson, Flodman, Guenzel & 

Widger, for appellee.

Pirtle, Chief Judge, and Bishop and Arterburn, Judges.

Pirtle, Chief Judge.

I. INTRODUCTION

Mark Joseph Kitsmiller appeals from the order of the separate juvenile court of Lancaster County dismissing his complaint for modification of a divorce decree and for termination 

of parental rights with regard to his ex-wife, Annette Marie 

Kitsmiller. The juvenile court also overruled Mark’s motions 
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Cite as 31 Neb. App. 473

for sanctions and attorney fees and vacated any pending orders 

to show cause, which actions Mark also challenges on appeal. 

For the reasons that follow, we affirm.

II. BACKGROUND

1. Factual Background

Mark and Annette were married in September 2012. One 

child, A.K., was born of this marriage in 2013. Annette has a 

long history of mental health challenges and substance use dating back to at least 2002 as documented in prior juvenile court 

cases. Those circumstances ultimately led to the severance, 

either by relinquishment or termination, of Annette’s parental 

rights to six of her children between 2008 and 2011. Thus, 

by the time Annette’s seventh child, A.K., was born in 2013, 

Annette had a long history of struggling as a parent. However, 

by all accounts, the 4 years immediately after A.K.’s birth were 

a reprieve from the conditions that had presented such difficulty in the years prior.

Mark’s mother, Barbara Kitsmiller, testified that between 

2013 and 2017, she was very close to Annette and thought she 

was “wonderful.” Barbara added that for the first 4 years of 

A.K.’s life, “I didn’t have any questions about Annette’s parenting.” Mark testified that Annette’s mental health was stable 

during those 4 years, and he agreed with his mother’s testimony that Annette was “wonderful” when her mental health 

was stable. However, a series of tragic events in 2017 resulted 

in the destabilization of Annette’s mental health and a return to 

old patterns of behavior.

Annette testified that in June 2016, she started working for 

an organization that helps families navigate the juvenile court 

process. By the end of 2016, Annette was having difficulties 

in that position due to her prior experiences with the juvenile 

court system. Barbara recalled an incident around that time 

when Annette came into the house and started crying because 

“it was so hard for her to be in the same courtrooms where 

her other children had been removed.” Thereafter, two close 
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Cite as 31 Neb. App. 473

friends of Annette’s died within a matter of days, and in July 

2017, she had a miscarriage. It was after this series of unfortunate events that both Mark and Barbara noticed a significant 

decline in Annette’s mental health.

The parties separated in 2018, entering into an equal “seven 

on/seven off” custody arrangement during the pendency of the 

dissolution proceedings. A decree of dissolution was entered 

in August 2019, under which the parties were awarded joint 

legal custody of A.K., and Mark was awarded sole physical custody subject to the terms of a parenting plan entered 

along with the decree. Annette was also ordered to pay Mark 

$50 per month in child support. The parenting plan specified that Annette would have only supervised visitation with 

A.K. until such time as Annette could demonstrate compliance with a detailed list of “safety provisions.” The safety 

provisions, summarized, required that Annette adequately 

address her mental health, obtain and maintain suitable housing and adequate income, and avoid outstanding warrants or 

law violations beyond minor traffic violations. The plan further required that Annette grant Mark access to information 

regarding her mental health treatment and submit to random 

drug testing at Mark’s request.

At no point in time since the entry of the 2019 decree had 

Annette demonstrated compliance with all of the safety provisions. With regard to her mental health, Annette attended periodic psychiatry appointments between 2019 and 2021. Despite 

some gradual improvement, Annette’s psychiatrist consistently reported that Annette continued to experience “moderate” symptoms of “Generalized Anxiety Disorder and Major 

Depression,” noting after each appointment that Annette’s 

clinical condition remained unchanged. Mark testified that he 

had not noticed any improvement in Annette’s mental health 

since her initial decline in 2017, although, neither had he 

noticed any further decline. After trial, the court found that the 

evidence established Annette was not appropriately managing 

her mental health needs at that time.
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Cite as 31 Neb. App. 473

With regard to Mark’s access to information, Annette testified that she did submit a release of information for Mark 

to communicate with her psychiatrist. Mark testified that he 

had never received any information from Annette’s mental 

health providers; however, he also testified that he was not 

aware whether any such release of information had been 

submitted. The court noted that “[i]t appears [Mark] may not 

have requested releases [of information] from [Annette].” 

Similarly, Mark testified that he had never requested that 

Annette submit to drug testing; however, Annette admitted 

to using both marijuana and methamphetamine in the months 

prior to trial.

With regard to housing, Annette testified that she initially 

resided in the parties’ marital home until January 2020, when 

she moved into a recreational vehicle that she parked at various locations. Annette was incarcerated at the time of trial, but 

she testified that the recreational vehicle remained her primary 

residence, and it was then parked on her cousin’s land. With 

regard to income, Annette had not obtained stable employment 

since leaving her position with the family advocacy organization, and her only source of income was from brief stints driving for ride-sharing services. At the time of trial, Annette owed 

over $1,000 in delinquent child support obligations.

Annette generally failed to abstain from criminal conduct 

and had active outstanding warrants at various times since the 

2019 decree. Mark detailed one incident in May 2021, in which 

Annette unexpectedly showed up at his home for a visit with 

A.K. There was no visit planned for that day, and no agreed 

upon supervisor was present. Mark and Barbara asked Annette 

to leave, but she refused, and an altercation ensued. A neighbor intervened, and law enforcement was called to the scene. 

Mark and Barbara both sustained minor injuries, and Annette 

was arrested and later charged with assault and trespassing. 

A.K. was initially present for the incident, but Mark’s father 

promptly took A.K. to the garage while the foregoing events 

played out.
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Because Annette never managed to demonstrate compliance with the safety provisions, she never progressed beyond 

supervised visitation with A.K. Under the parenting plan, the 

parties were to agree on a supervisor or a professional supervisor could be hired at Annette’s expense. Mark testified that 

he initially agreed to personally supervise visits, which would 

occur two to three times a week through the end of 2019 and 

into 2020. However, Mark refused to continue supervising visits after an incident on July 31, 2020, in which Annette drove 

off with A.K. and maintained physical custody of her for 10 

days without supervision. A.K. was not returned to Mark’s 

custody until August 10, when Annette was arrested on an 

outstanding warrant for charges related to a dangerous dog. 

Although Mark was understandably upset about the incident, 

Mark and Barbara both testified that no harm came to A.K. 

According to Mark and Barbara, A.K. believed that she was 

supposed to be with Annette, describing the 10-day period as 

a “vacation.”

Because Mark refused to supervise visits, and no alternate 

third-party supervisor was agreed to, it appears that Annette 

has not had even supervised visitation with A.K. since the 

incident in August 2020. Mark testified that Annette continued 

to seek visitation, albeit intrusively, by unexpectedly showing up at Mark’s house for visitation without an approved 

supervisor. Mark indicated that these attempted visits would 

often devolve into shouting and that law enforcement would 

be called to intervene. Barbara testified that A.K. was often 

present to observe these chaotic incidents.

Although supervised visits were not occurring, Mark testified that Annette and A.K. continued to have telephone 

contact up to six times a week, most of which were initiated by Annette. Mark testified that the conversations were 

appropriate and that such contact did not appear to be in any 

way harmful to A.K. Although Mark testified that A.K. had 

expressed some hesitancy to talk with Annette following the 
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May 2021 incident, he also testified that A.K. loves Annette 

and wanted to talk to her “[m]ost of the time.”

Mark testified that he did not think Annette would ever hurt 

A.K. Rather, Mark’s primary concern was that Annette would 

refuse to return A.K. to his custody if given unsupervised 

parenting time. Mark testified that he would be comfortable 

with continued visitation between Annette and A.K. so long as 

there was a supervisor present to ensure A.K. is returned. With 

respect to whether termination of Annette’s parental rights 

was in A.K.’s best interests, Mark cited concerns regarding 

Annette’s unsuitable housing, inadequate means of support, 

and mental health. However, Mark also acknowledged that the 

2019 decree contained safety provisions specifically directed 

at each of these concerns.

2. Procedural Background

The transcript on appeal indicates that the present proceedings were originally initiated by Annette in May 2020, when 

she filed an affidavit and application for order to show cause, 

alleging that Mark had contemptuously denied her visitation 

rights under the 2019 decree. Mark was ordered to appear 

before the district court for Lancaster County and show 

cause why he should not be held in contempt. Thereafter, 

on August 7, 2020, Mark filed two motions in relation to 

Annette’s unauthorized custody of A.K. from July 31 to 

August 10. Mark styled the first motion as a motion for citation for contempt, alleging that Annette violated the parenting 

plan by exercising unauthorized parenting time and refusing 

to allow Mark telephone contact with A.K. Mark styled the 

second motion as an ex parte motion to have A.K. returned 

to his custody. The court immediately granted both motions, 

ordering Annette to return A.K. to Mark’s custody and to 

appear and show cause as to why she should not be held in 

contempt. Thus, as of August 7, both parties were ordered to 

appear before the district court and show cause as to why they 
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should not be held in contempt for violating the terms of the 

parenting plan.

A hearing was apparently held on August 13, 2020, after 

which the court appointed a guardian ad litem for Annette. A 

supplemental transcript reveals a brief order entered on August 

18, in which the court vacated the order for Mark to show 

cause on the grounds that Annette failed to appear at a hearing 

thereon. With respect to the order for Annette to show cause, 

the court continued the matter, and it remained pending when 

Mark filed his complaint for modification and termination of 

parental rights on August 26.

In his complaint, Mark alleged that a material change in 

circumstances had occurred, to wit: statutory grounds to terminate Annette’s parental rights existed under Neb. Rev. Stat. 

§ 43-292(2), (3), (5), and (9) (Reissue 2016), and that termination of Annette’s parental rights was in A.K.’s best interests. 

Accordingly, Mark requested an order terminating Annette’s 

parental rights or, in the alternative, modifying the decree 

and parenting plan to suspend any and all visitation between 

Annette and A.K. On September 9, Mark filed a motion for 

determination of appropriate forum pursuant to Neb. Rev. 

Stat. § 42-364(5) (Cum. Supp. 2020). On October 7, the district court entered an order transferring to the juvenile court 

“all currently pending matters to include the Complaint for 

Modification and Termination of Parental Rights and Order to 

Show Cause.” Despite this reference to the pending order to 

show cause, there was no further discussion of that order on 

the record until near the end of trial when it was brought to the 

attention of the juvenile court.

On January 11, 2021, the juvenile court entered an order 

accepting the transfer of the case from the district court. 

Following a number of discovery-related delays and pretrial 

motions, a trial on Mark’s complaint was held on May 13 and 

14. After trial, the juvenile court entered an order dismissing 

the complaint on the grounds that “there has not been a material change in circumstances since the entry of the Decree that 
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would warrant the requested modification, to include a request 

for termination of [Annette’s] parental rights.” The court further “vacated and dismissed without prejudice” any pending 

orders to show cause and overruled Mark’s requests for sanctions and attorney fees. Mark appealed.

III. ASSIGNMENTS OF ERROR

Mark assigns, restated and reordered, that the juvenile court 

erred in (1) failing to terminate Annette’s parental rights, (2) 

failing to otherwise modify the 2019 custody arrangement, (3) 

vacating the pending order to show cause, and (4) overruling 

Mark’s requests for sanctions and attorney fees.

IV. ANALYSIS

Mark’s complaint raised two primary questions for review. 

First, Mark alleged that Annette’s parental rights should be 

terminated under § 43-292. Regardless of whether this matter was tried in district court or transferred to the juvenile 

court, § 42-364(5) provides that the question of termination be 

answered according to the Nebraska Juvenile Code. Second, 

if termination of Annette’s parental rights was unsuccessful, 

Mark alleged that there was nevertheless a material change 

in circumstances warranting modification of the 2019 decree 

and parenting plan to suspend “any and all visitation” between 

Annette and A.K. The juvenile court answered both questions 

in the negative, finding the record failed to demonstrate that 

termination of Annette’s parental rights was in the best interests of A.K. and finding that Mark had failed to prove a material change in circumstances warranting modification. Because 

we agree with the juvenile court in both respects, we affirm the 

order of the juvenile court dismissing Mark’s complaint.

1. Termination of Parental Rights

(a) Standard of Review

[1] Both parties on appeal suggest that we review the 

juvenile court’s order de novo on the record and affirm in 
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the absence of an abuse of discretion, because that is the 

standard of review applicable to actions for modification of 

a judgment or decree relating to child custody, visitation, or 

support. See Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 

744 (2020). However, Mark’s complaint sought modification 

only in the alternative to his request that Annette’s parental 

rights be terminated. Termination of parental rights cases, 

even when raised under § 42-364(5), are reviewed de novo 

on the record, and an appellate court is required to reach a 

conclusion independent of the juvenile court’s findings. See

Kenneth C. v. Lacie H., 286 Neb. 799, 806, 839 N.W.2d 305, 

311 (2013) (“[a]lthough this is not a typical juvenile case 

governed exclusively by the Nebraska Juvenile Code, . . . 

the standard of review applicable to juvenile cases is applicable here”).

(b) Analysis

With respect to termination, the court found that “the restrictions outlined in the Parenting Plan provide the necessary protections for [A.K.] such that the drastic step of terminating 

parental rights is unnecessary at this time and not in [A.K.’s] 

best interests.” The court acknowledged Annette’s shortcomings and Mark’s understandable frustration. However, the court 

noted that Annette and A.K. appeared to be bonded, pointing 

to prior visitation when Mark was willing to supervise and 

continued telephone contact. Ultimately, the court concluded, 

“There are other options that can be utilized, short of termination of parental rights, to ensure [A.K.’s] safety and satisfy the 

concerns of [Mark], while also facilitating an ongoing relationship between [Annette] and [A.K.]” Namely, the court encouraged the parties to implement the terms of the parenting plan 

“as strictly written, as opposed to how the [parties] had quite 

loosely followed the plan in the past.”

On appeal, Mark argues the court erred in “not analyzing” the issue of termination. Mark argues that the juvenile 

court simply failed to address either prong of the termination 
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analysis. Although Mark is correct that the juvenile court’s 

order does not explicitly address the statutory grounds for termination, the court did explicitly find that termination was not 

in the best interests of A.K. at this time, and we agree.

[2,3] Under Nebraska law, terminating parental rights 

requires both clear and convincing evidence that one of the 

statutory grounds enumerated in § 43-292 exists and clear and 

convincing evidence that termination is in the best interests of 

the children. See In re Interest of Donald B. & Devin B., 304 

Neb. 239, 933 N.W.2d 864 (2019). Termination of parental 

rights is a final and complete severance of the child from the 

parent and removes the entire bundle of parental rights. In re 

Interest of Justin H. et al., 18 Neb. App. 718, 791 N.W.2d 

765 (2010). With such severe and final consequences, parental 

rights should be terminated only in the absence of any reasonable alternative and as the last resort. Id.

It is important to identify precisely what is at stake as it 

relates to the termination of Annette’s parental rights under the 

unique circumstances of this case. The detailed terms of the 

parenting plan already limit Annette’s parenting time to fully 

supervised visitation until she can demonstrate compliance 

with all the safety provisions. Because Mark is now refusing to 

supervise visits, even Annette’s supervised visitation is essentially suspended until such time as the parties agree on a thirdparty supervisor or Annette obtains funds sufficient to hire a 

professional supervisor. Annette has much progress to make 

before any form of unsupervised parenting time would be 

contemplated; however, the safety provisions were specifically 

designed to ensure A.K.’s safety while Annette continues to 

strive toward the stability she demonstrated from 2013 to 2017. 

Moreover, Annette and A.K. have continued to have frequent 

telephone communication, and, despite Annette’s challenges, 

the record suggests they continue to share a loving motherdaughter relationship.

Annette’s unauthorized custody of A.K. in August 2020 is 

certainly concerning; however, it appears A.K. was not harmed 
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by the incident, and Mark himself testified that he is not concerned about Annette’s hurting A.K. Rather, Mark’s primary 

concern is that Annette might refuse to return A.K. if given 

unsupervised parenting time. Under the present restrictions, 

Annette will have only supervised parenting time for the foreseeable future. We note that Mark did testify that he would 

be comfortable with continued visitation between Annette and 

A.K. so long as an appropriate supervisor is present to ensure 

A.K.’s return.

Although the juvenile court did not conduct an explicit 

analysis of the statutory grounds for termination, such was 

unnecessary in light of the court’s finding that termination 

was not in A.K.’s best interests. Even if we assume that Mark 

proved one or more statutory grounds for termination by 

clear and convincing evidence, we nevertheless agree with the 

juvenile court that the “drastic step” of terminating Annette’s 

parental rights is neither necessary nor in A.K.’s best interests 

at this time. Accordingly, we affirm the order of the juvenile 

court dismissing Mark’s request for termination of Annette’s 

parental rights.

2. Modification

(a) Standard of Review

[4] Modification of a judgment or decree relating to child 

custody, visitation, or support is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on 

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

Windham v. Kroll, 307 Neb. 947, 951 N.W.2d 744 (2020).

(b) Analysis

With respect to modification, the court found that 

“[Annette’s] current situation does not establish a material 

change in circumstances, as her overall life situation appears 

to be the very facts upon which the restrictive Parenting Plan 

was developed at the time of the 2019 dissolution proceeding.” 

The court acknowledged Annette’s persistent failure to comply 
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with the safety provisions in the parenting plan, noting specific violations such as Annette’s failure to adequately address 

her mental health, her lack of sobriety, her inability to abstain 

from criminal behavior, and her lack of suitable housing and 

income. However, the court observed that the safety provisions 

in the parenting plan were specifically designed, and remained 

adequate, to address the safety concerns raised by Annette’s 

behavior. We agree.

[5,6] Prior to modification of a child custody order, two 

steps of proof must be taken by the party seeking modification. Weaver v. Weaver, 308 Neb. 373, 954 N.W.2d 619 (2021). 

First, the party seeking modification must show by a preponderance of the evidence a material change in circumstances that 

has occurred after the entry of the previous custody order and 

that affects the best interests of the child. Id. Second, the party 

seeking modification must prove that changing the child’s 

custody is in the child’s best interests. Id. Generally speaking, 

a material change in circumstances is the occurrence of something which, had it been known to the dissolution court at the 

time of the initial decree, would have persuaded the court to 

decree differently. Id.

[7] Mark generally points to Annette’s continued failure to 

comply with the safety provisions in the parenting plan as the 

material change in circumstances warranting the suspension 

of all visitation between Annette and A.K. The guardian ad 

litem for A.K., in a report to the juvenile court, opined that the 

incident of Annette’s unauthorized custody of A.K. amounted 

to a material change in circumstances warranting modification of the custody arrangement. However, the juvenile court 

disagreed, and the weight given to the opinion of a guardian 

ad litem is in the trial court’s discretion. See Beran v. Beran, 

234 Neb. 296, 450 N.W.2d 688 (1990). In any case, even if 

we assume that a material change in circumstances affecting 

A.K.’s best interests had occurred since the entry of the 2019 

decree, we must nevertheless examine whether the requested 

modification is in A.K.’s best interests.
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Mark requested that the decree and parenting plan be modified to suspend any and all visitation between Annette and A.K. 

“until such time as [Annette] was able to show compliance 

with the safety provisions.” Brief for appellant at 38. Annette 

is already limited to fully supervised visitation unless and 

until she demonstrates compliance with the safety provisions, 

and Mark himself testified that he would be comfortable with 

continued visitation so long as it was supervised. In this way, 

Mark failed to meet his burden to prove that further limiting 

Annette’s parenting time by suspending even supervised visitation was in A.K.’s best interests. To the contrary, we agree with 

the juvenile court that adherence to the current parenting plan, 

if implemented as written, remains in A.K.’s best interests.

3. Order to Show Cause

(a) Standard of Review

[8] 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. In re Interest of Zachary D. & Alexander 

D., 289 Neb. 763, 857 N.W.2d 323 (2015).

(b) Analysis

Mark assigns that the juvenile court erred in vacating the 

pending order for Annette to show cause as to why she should 

not be held in contempt for her unauthorized custody of A.K. 

in August 2020. Mark argues the evidence clearly establishes that Annette’s conduct amounted to willful disobedience of the custody order, such that Annette should have been 

held in contempt and subjected to an appropriate purge plan. 

Annette counters that she was not advised of her rights or the 

allegations against her and that no hearing on the issue of 
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contempt was scheduled or held. Accordingly, Annette argues 

the matter of contempt was properly “reserved” by the juvenile court and should be set for further hearing on the specific 

allegations of contempt. Brief for appellee at 23. Both parties 

agree that the juvenile court was apparently unaware of the 

pending order to show cause until near the end of the trial on 

Mark’s complaint.

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

court order made for the benefit of the opposing party, such act 

is ordinarily civil contempt, which requires willful disobedience as an essential element. In re Interest of Zachary D. & 

Alexander D., supra. Outside of statutory procedures imposing 

a different standard, it is the complainant’s burden to prove 

civil contempt by clear and convincing evidence. Id.

The record is clear that Annette’s unauthorized custody of 

A.K. from July 31 to August 10, 2020, was a violation of the 

parenting plan in multiple respects. However, the juvenile 

court did not make any findings of fact as to the willfulness 

of this violation. Although the circumstances of that incident 

were discussed at trial, consideration of those facts was confined to the issues of termination and modification. Indeed, the 

court was apparently unaware of the pending contempt issue 

until near the end of trial. The court did not make any determination as to whether the incident amounted to contempt. 

Rather, the court vacated and dismissed the pending order to 

show cause without prejudice. Under the circumstances of 

this case, we conclude the juvenile court’s dismissal without 

prejudice of the pending order to show cause was not an abuse 

of discretion. The matter of Annette’s alleged contempt may 

be set for further hearing upon subsequent application to the 

district court.

4. Sanctions and Attorney Fees

(a) Standard of Review

[11] A trial court’s determination of requests for sanctions and for attorney fees are both reviewed for an abuse 
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of discretion. See, Cornwell v. Cornwell, 309 Neb. 156, 959 

N.W.2d 243 (2021); Malicky v. Heyen, 251 Neb. 891, 560 

N.W.2d 773 (1997).

(b) Analysis

Mark lastly assigns that the juvenile court erred in overruling his motions for sanctions and attorney fees. Mark’s 

requests were primarily based on Annette’s lack of participation in depositions and her failure to produce requested 

documents. Mark requested that Annette be precluded from 

presenting certain evidence due to her lack of cooperation with 

discovery, and he sought reimbursement for the costs associated with the missed depositions.

The court acknowledged that Annette failed to appear for 

two scheduled depositions and participated only minimally in 

a third. However, the court also noted that there was some evidence of justification for the two missed depositions, and the 

third deposition occurred without notice shortly after Annette 

became incarcerated. The court thereafter employed procedural safeguards to limit the prejudicial effect of Annette’s 

limited cooperation, including providing opportunities for 

Mark to discover and present additional evidence in response 

to any unforeseen evidence provided by Annette at trial. 

Noting Annette’s current indigence, the court ultimately stated, 

“While the Court sympathizes with [Mark’s] situation and the 

costs incurred to litigate this modification . . . assessing trial 

costs or expenses to [Annette] is not appropriate given the 

facts of this particular case.” We find no abuse of discretion in 

the juvenile court’s decision.

V. CONCLUSION

For the foregoing reasons, we affirm the order of the juvenile court dismissing Mark’s complaint, vacating the pending 

order to show cause, and overruling Mark’s motions for sanctions and attorney fees.

Affirmed.