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plain error in the juvenile court’s February 26 order finding 

that reasonable efforts in support of reunification were no 

longer required, that the primary permanency objective for 

Jasmine was to be independent living, and that the primary 

permanency objective for Samantha was to be guardianship 

with a concurrent plan of adoption. Accordingly, we affirm the 

court’s order.

Affirmed

State of Nebraska, appellee, v.

Kaylene M. Rieger, appel

___ N.W.2d ___

Filed November 1, 2013. No. S-13-456.

1. Sentences: Appeal and Error. Where a sentence imposed within the statutory 

limits is alleged on appeal to be excessive, the appellate court must determine 

whether the sentencing court abused its discretion in considering and applying 

the relevant factors as well as any applicable legal principles in determining the 

sentence to be imposed.

2. Sentences: Probation and Parole. It is within the discretion of the trial court 

whether to impose probation or incarceration.

3. ____: ____. When a court sentences a defendant to probation, it may impose any 

conditions of probation that are authorized by statute.

4. ____: ____. Whether a condition of probation imposed by the sentencing court is 

authorized by statute is a question of law.

5. Judgments: Words and Phrases. An abuse of discretion occurs when a trial 

court’s decision is based upon reasons that are untenable or unreasonable or if its 

action is clearly against justice or conscience, reason, and evidence.

Appeal from the District Court for Sarpy County, Ma

Kelch, Judge, on appeal thereto from the County Court for

Sarpy County, Robert C. Wester, Judge. Sentence vacated 

part, and cause remanded with directions.

Liam K. Meehan, of Schirber & Wagner, L.L.P., for 

appellant.

Jon Bruning, Attorney General, and George R. Love for 

appellee.
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Heavican, C.J., Wright, Connolly, Stephan, 

Miller-Lerman, and Cassel,

Stephan, 

Kaylene M. Rieger entered a guilty plea to one count of 

false reporting. She was sentenced by the county court for 

Sarpy County to probation for 18 months. As a condition 

of probation, she was directed to have no contact with her 

husband without the court’s permission. The district court 

affirmed the sentence, and Rieger then perfected this timely 

appeal. We conclude that the broad prohibition on Rieger’s 

contact with her husband is an unreasonable infringement 

upon Rieger’s fundamental rights arising from marriage 

and an abuse of sentencing discretion. We therefore remand 

for resentencing.

BACKGROUND

Rieger and Gavin Vreeland were married on August 25, 

2012. At the time of the marriage, Rieger had two children from previous relationships. In September 2012, police 

received a report that her 5-year-old son had bruises on his 

lower back. Rieger told officers that she had caused the bruising when she spanked the child. However, police officers 

learned that the child told his grandmother that Vreeland had 

spanked him and had caused the injuries. The child told police 

officers that it was mostly Vreeland who spanked him and that 

Vreeland spanked hard enough to make him cry. The child 

appeared confused as to whether his mother told him to blame 

the injuries on Vreeland or herself. Officers talked to Rieger 

again, and she continued to accept responsibility for spanking 

the child, but officers later spoke with Vreeland, who admitted 

to causing the injuries.

Rieger was charged with one count of false reporting, a 

Class I misdemeanor,1 and one count of tampering with a witness, a Class IV felony.2

 She entered a guilty plea to the false 

1 Neb. Rev. Stat. § 28-907 (Reissue 2008).

2 Neb. Rev. Stat. § 28-919 (Reissue 2008).
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reporting charge, and the other charge was dismissed by the 

State. At the plea hearing, the court inquired whether there 

was any pending juvenile proceeding, and Rieger responded 

that there was not. Her counsel added that it was his understanding that the Department of Health and Human Services 

(DHHS) had found the “abuse allegations” to be “unfounded.” 

The court ordered a presentence investigation and scheduled a 

sentencing hearing.

According to the presentence investigation report (PSR), 

Rieger had no prior record other than traffic offenses. The PSR 

indicated that Rieger and Vreeland were currently married and 

that he was a “co-defendant in this present offense,” but the 

PSR did not disclose the status or disposition of any charges 

against him. The report disclosed that Rieger was disabled and 

stated that she had been diagnosed with posttraumatic stress 

disorder, chronic migraines, depression, hypertension, a stroke, 

and a brain tumor. It noted that Vreeland was unemployed. The 

probation officer made no sentencing recommendation, but 

included several recommended conditions if the court decided 

to place Rieger on probation. One of these recommendations 

was that she “avoid social contact with persons having criminal 

records,” but the report made no specific reference to future 

contact with Vreeland.

At the sentencing hearing, Rieger stated that she and 

Vreeland were still living in the same home. She stated that 

Vreeland had been around her son since he was less than 1 

year old and that she had never “seen [Vreeland] do anything 

like this” previously. The prosecutor noted that according 

to the PSR, Vreeland “admitted to spanking the kids in the 

past and indicated that [Rieger] knew that.” The court again 

inquired whether Rieger’s children were involved in juvenile 

proceedings. Rieger’s counsel responded: “No. The DHHS 

found that these allegations were unfounded, kept them in the 

home, and then there are still criminal matters proceeding. I 

believe . . . Vreeland had a child abuse charge against him 

and she had the false reporting charge.” Later in the hearing, 

the prosecutor advised the court that Vreeland had entered 

a guilty plea to “child abuse” and Rieger stated that he was 

awaiting sentencing.
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The county court told Rieger she could be placed on probation if she agreed to keep Vreeland out of the house while 

she was on probation or she could go to jail for 15 days, in 

which case, she would not receive some of her prescription 

medications. After inquiring about the failure of Rieger’s relationships with the fathers of her children, the court stated: “So 

you pick losers. . . . And . . . my guess is that’s related to you 

feel so bad about yourself that . . . you’ll put up with someone 

just so that they’ll be there.” The court further observed that 

Rieger had “an instinctual way of finding a guy that’s kind of 

at the bottom of the barrel that will put up with you and you 

put up with him, and that’s the way it is.”

The court placed Rieger on probation for 18 months with 

conditions, including completion of a psychological evaluation, weekly individual counseling, and weekly attendance at a 

women’s group. Rieger was also ordered to have “No contact

with . . . [V]reeland” without permission of the court. The court 

said it would permit contact between Rieger and Vreeland only 

if there was “some kind of intense therapeutic deal.”

Rieger appealed to the district court, which affirmed the 

sentence. The district court found the no-contact condition 

was reasonable because both the factual basis for the plea and 

the PSR left unresolved the question of whether Vreeland had 

committed child abuse. The court reasoned that the protection 

of a young child superseded any relationship between Rieger 

and Vreeland. Rieger filed this timely appeal. We moved 

the appeal to our docket on our own motion pursuant to our 

authority to regulate the caseloads of the appellate courts of 

this state.3 It was submitted without oral argument pursuant to 

Neb. Ct. R. App. P. § 2-111(E)(5)(a) (rev. 2008).

ASSIGNMENTS OF ERROR

Rieger assigns, restated and summarized, that the condition 

of probation that she have no contact with Vreeland was an 

abuse of discretion because it violated her fundamental rights 

inherent in the marital relationship and was not reasonably 

3 See, Neb. Rev. Stat. § 24-1106(3) (Reissue 2008); Neb. Ct. R. App. P. 

§ 2-102(C) (rev. 2012).
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related to her rehabilitation. In addition, she contends that 

the 18-month period of probation is excessive in light of her 

minimal prior record.

STANDARD OF REVIEW

[1,2] Where a sentence imposed within the statutory limits 

is alleged on appeal to be excessive, the appellate court must 

determine whether the sentencing court abused its discretion 

in considering and applying the relevant factors as well as any 

applicable legal principles in determining the sentence to be 

imposed.4 It is within the discretion of the trial court whether 

to impose probation or incarceration.5

ANALYSIS

No-Contact Cond

[3,4] When a court sentences a defendant to probation, it 

may impose any conditions of probation that are authorized by 

statute.6 Whether a condition of probation imposed by the sentencing court is authorized by statute is a question of law.7

 The 

applicable statute provides that “[w]hen a court sentences an 

offender to probation, it shall attach such reasonable conditions 

as it deems necessary or likely to insure that the offender will 

lead a law-abiding life.”8 These include requiring the offender 

to “meet his or her family responsibilities,”9 to “refrain from 

frequenting unlawful or disreputable places or consorting with 

disreputable persons,”10 and to “satisfy any other conditions 

reasonably related to the rehabilitation of the offender.”11 We 

construe these provisions to authorize a no-contact condition of 

4 State v. Dixon, ante p. 334, ___ N.W.2d ___ (2013).

5 State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013).

6 State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007); State v. Lobato, 

259 Neb. 579, 611 N.W.2d 101 (2000).

7 State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010); State v. Lobato, 

supra note 6.

8 Neb. Rev. Stat. § 29-2262(1) (Cum. Supp. 2012).

9 § 29-2262(2)(c).

10 § 29-2262(2)(h).

11 § 29-2262(2)(r).
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probation when it is reasonable and necessary to the rehabilitative goals of probation.

From our review of the record, it appears that the sentencing 

judge imposed the no-contact condition as a means of requiring Rieger to fulfill her parental responsibility to protect her 

children from potential future harm. Rieger contends that the 

no-contact condition must be subjected to heightened scrutiny because it affects the marital relationship, which the U.S. 

Supreme Court has described as “one of the ‘basic civil rights 

of man,’ fundamental to our very existence and survival.”12

Although we have not previously addressed this precise issue, 

Rieger’s position is consistent with the analytical approach 

taken by other jurisdictions.

For example, in Dawson v. State,

13 an Alaska appellate court 

invalidated a condition of probation which precluded contact 

between the defendant and his wife, with whom he had been 

involved in selling drugs. Alaska law required conditions of 

probation to be reasonably related to the rehabilitation of the 

offender and the protection of the public, and subjected conditions which restricted constitutional rights to special scrutiny 

to determine whether the restriction served those goals. The 

Alaska court found that the spousal no-contact condition 

“plainly implicate[d] the constitutional rights of privacy, liberty and freedom of association.”14 It reasoned that while such 

restrictions could be justified by case-specific circumstances, 

“to avoid unnecessary intrusion on marital privacy, it [is] 

appropriate to tailor a close fit between the scope of the order 

restricting marital association and the specific needs of the 

case at hand.”15 The court ultimately vacated the no-contact 

provision upon determining it was not specifically tailored to 

the circumstances and therefore was unduly restrictive of liberty. However, it stated that the trial court, on remand, could 

12 Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 

(1967), quoting Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. 

Ed. 2d 1655 (1942).

13 Dawson v. State, 894 P.2d 672 (Alaska App. 1995).

14 Id. at 680.

15 Id. at 681.
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in its discretion “consider the appropriateness of a more limited special condition.”16

Applying similar reasoning, the Supreme Court of Oregon 

in State v. Martin17 set aside a condition of probation which 

barred contact between a woman convicted of forgery and her 

husband, who was also involved in the crime. The trial court 

reasoned that the no-contact condition was justified because 

the wife’s counsel had argued at sentencing that the husband 

was largely to blame for her crimes and, thus, barring contact 

was necessary for rehabilitation. The Oregon Supreme Court 

stated that this “might have been sufficient to support a condition of probation that defendant not associate with her former partner in crime, had that person not been her spouse.”18

But the court reasoned that “where fundamental rights are 

involved the sentencing court has less discretion to impose 

conditions in conflict therewith.”19 The court stated that the 

sentencing court should have made more detailed factual findings regarding any potential harm which could result from 

marital contact and should consider whether “interference 

with marital rights less than complete separation would serve 

to protect society’s interests.”20

Also instructive is State v. Ancira.

21 As a condition of probation, the defendant was required to have no contact with his 

wife or his two minor children for 5 years. The sentencing 

court stated that the order was necessary to protect the children, 

who had witnessed an incident of domestic violence between 

their parents. The appellate court reasoned that restriction of 

the fundamental right of a parent to have contact with his children could only be justified if reasonably necessary to prevent 

harm to the children and that the total prohibition of any form 

of contact had not been shown to be reasonably necessary to 

16 Id.

17 State v. Martin, 282 Or. 583, 580 P.2d 536 (1978).

18 Id. at 589, 580 P.2d at 539.

19 Id. at 589, 580 P.2d at 540.

20 Id.

21 State v. Ancira, 107 Wash. App. 650, 27 P.3d 1246 (2001).
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protect the children. The court also noted that while some limitations on the defendant’s visitation rights might be warranted, 

the family and juvenile courts were better equipped to make 

such determinations. It therefore struck the no-contact provision involving the defendant’s children.

Even courts which have upheld restrictions on contact with 

spouses or children as a condition of probation recognize that 

such restrictions must be subjected to greater scrutiny than nocontact provisions involving unrelated persons. For example, 

in People v. Jungers,

22 a California court upheld a condition of 

probation which prohibited a defendant convicted of a felony 

involving domestic violence from initiating contact with the 

victim, his wife. Noting that restrictions on constitutional 

rights must be “carefully tailored and ‘reasonably related to 

the compelling state interest’ in reforming and rehabilitating 

the defendant,”23 the court reasoned that the condition “did 

not impose a complete ban on association or marital privacy, 

but only a narrowly tailored condition consistent with [the 

defendant’s] rehabilitation and the safety of the victim.”24 The 

court noted that the condition did not preclude the defendant 

from participating in marital contacts, but only from initiating 

such contacts, and was therefore a reasonable restriction which 

did not interfere with the marital relationship to an impermissible degree.

Likewise, in Commonwealth v. Lapointe,

25 the Supreme 

Judicial Court of Massachusetts upheld a condition of probation which prohibited the defendant, who had been convicted 

of sexually assaulting his minor daughter, from residing in a 

home with his victim or other minor children. Recognizing 

that parental rights were constitutionally protected, the court 

reasoned that “[i]n cases where a condition touches on constitutional rights, the goals of probation ‘are best served if the 

conditions of probation are tailored to address the particular 

22 People v. Jungers, 127 Cal. App. 4th 698, 25 Cal. Rptr. 3d 873 (2005).

23 Id. at 704, 25 Cal. Rptr. 3d at 878.

24 Id. at 705, 25 Cal. Rptr. 3d at 879.

25 Commonwealth v. Lapointe, 435 Mass. 455, 759 N.E.2d 294 (2001).
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characteristics of the defendant and the crime.’”26 The court 

concluded that the residency restriction was reasonably tailored 

to the circumstances because the defendant had targeted minors 

residing in his home and had used the family relationship to 

perpetrate his abuse.

Although it did not involve a spousal no-contact provision, 

this court’s opinion in State v. Morgan27 provides support for 

Rieger’s argument that a no-contact provision which infringes 

upon a fundamental right should be subjected to a higher degree 

of scrutiny. At issue in Morgan was a condition of probation 

which required the defendant, who had been convicted of selling marijuana, to submit to a search of his person or property 

at any time during the probationary period, without probable 

cause. The defendant challenged the search condition, alleging that it violated his Fourth Amendment rights. This court 

stated that while “such conditions should be sparingly imposed 

and should be reasonably related to the offense for which the 

defendant was convicted,”28 they are valid and constitutional 

“to the extent that they contribute to the rehabilitation process 

and are done in a reasonable manner.”29 We conclude that the 

same principles should apply to a condition of probation which 

prohibits or restricts a probationer’s contact with a spouse and 

that such a condition should be narrowly tailored and reasonably related to the rehabilitative process.

In considering whether a probation condition is narrowly 

tailored and reasonably related to the goal of rehabilitation, 

we consider both its purpose and scope. There is no indication in the record that the no-contact condition was necessary 

to protect Rieger from Vreeland. Rather, as we have noted, it 

appears that the condition was designed to protect Rieger’s 

children from Vreeland. But the need for such protection is 

unclear from the record. In response to questions from the 

court prior to entry of the order of probation, Rieger’s counsel 

26 Id. at 459, 759 N.W.2d at 298.

27 State v. Morgan, 206 Neb. 818, 295 N.W.2d 285 (1980).

28 Id. at 825, 295 N.W.2d at 288.

29 Id. at 827, 295 N.W.2d at 289.
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twice indicated that the State had declined to institute juvenile abuse and neglect proceedings. Although the prosecutor 

advised the court that Vreeland had entered a guilty plea to 

a “child abuse” charge, the record does not disclose whether 

this was a misdemeanor charge of negligent child abuse or a 

felony charge of knowing and intentional abuse.30 Nor does 

the record disclose whether Vreeland had any prior record of 

child abuse or assaultive behavior. And there is no evidence 

that Vreeland was complicit in Rieger’s false reporting. When 

police questioned Vreeland after receiving Rieger’s report, he 

readily admitted that he had administered the spanking which 

resulted in the bruising.

But even assuming that some protective measure was 

required, the broad no-contact provision included in the order 

of probation is not narrowly tailored to that purpose. It forbids 

any form of contact between Rieger and Vreeland without 

court permission, which the court indicated it would only 

consider in connection with “some kind of intense therapeutic deal.” We cannot discern from this record any reason that 

a less restrictive condition, such as one permitting supervised contact in the presence of the children, unsupervised 

contact without the children present, or telephone or e-mail 

communication, would not have been sufficient to protect 

Rieger’s children.

[5] As noted, we review criminal sentences for abuse of discretion. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable 

or if its action is clearly against justice or conscience, reason, 

and evidence.31 Because the no-contact condition at issue here 

affects Rieger’s fundamental rights attendant to her marriage 

and the record does not establish that the prohibition of marital contact was narrowly tailored and reasonably necessary to 

protect Rieger’s children or serve any rehabilitative purpose, 

we conclude that the inclusion of this condition in the order 

30 See Neb. Rev. Stat. § 28-707 (Cum. Supp. 2012).

31 State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013); State v. Pereira, 

284 Neb. 982, 824 N.W.2d 706 (2013).
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of probation was an abuse of discretion. This error requires 

that we remand the cause for resentencing to permit the county 

court either to remove the no-contact condition or to tailor it 

more narrowly to the factual circumstances of the case and the 

rehabilitative goals sought to be achieved.32

Length of Proba

Rieger also contends in this appeal that the 18-month term 

of her probation was excessive. The maximum term of probation upon conviction for a first offense misdemeanor is 2 

years.33 Thus, an 18-month term of probation is within statutory limits and may be disturbed on appeal only for an abuse 

of discretion.34

We find none. Rieger’s offense was a Class I misdemeanor, 

the most serious of misdemeanor offenses, which carries a 

maximum sentence of 1 year’s imprisonment and a fine of 

$1,000.35 The conditions of probation included counseling and 

other rehabilitative measures. We discern no abuse of discretion in the county court’s determination that 18 months was 

an appropriate period in which to accomplish the rehabilitative goals of probation. The fact that the term of probation 

was longer than the maximum term of imprisonment for the 

offense is of no consequence, because § 29-2263(1) specifically authorizes a maximum probation term of 2 years for persons convicted of first-offense misdemeanors.

CONCLUSION

As we have noted, the error with respect to the spousal 

no-contact condition requires that we remand the cause for 

resentencing to permit the county court either to remove the 

condition or to tailor it more narrowly to the factual circumstances of the case and the rehabilitative goals sought to be 

achieved, while providing any necessary protection to the 

32 See, State v. Salyers, 239 Neb. 1002, 480 N.W.2d 173 (1992); Dawson v. 

State, supra note 13.

33 See Neb. Rev. Stat. § 29-2263(1) (Reissue 2008).

34 See State v. Dixon, supra note 4.

35 See Neb. Rev. Stat. § 28-106(1) (Cum. Supp. 2012) and § 28-907.
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minor children. We therefore vacate that portion of the sentence of probation which prohibits Rieger from having any 

contact with Vreeland and remand the cause to the district 

court with directions to remand it to the county court with 

instructions to resentence Rieger in conformity with this opinion. The sentence is affirmed in all other respects.

 Sentence vacated in part, and

remanded with direction