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HAWKS V. HAWKS

Cite as 32 Neb. App. 70

Ashley A. Hawks, appellee, v. 

Jeff A. Hawks, appellant.

___ N.W.2d ___

Filed July 11, 2023. No. A-22-578.

1. Contempt: Appeal and Error. In a civil contempt proceeding where a 

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

appellate court employs a three-part standard of review in which the trial 

court’s (1) resolution of issues of law is reviewed de novo, (2) factual 

findings are reviewed for clear error, and (3) determinations of whether 

a party is in contempt and of the sanction imposed are reviewed for 

abuse of discretion.

2. Attorney Fees: Appeal and Error. A trial court’s decision awarding 

or denying attorney fees will be upheld on appeal absent an abuse 

of discretion.

3. Judgments: Words and Phrases. A judicial abuse of discretion 

requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and 

a just result.

4. 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 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.

5. Contempt: Proof: Presumptions. 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.

6. 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.

7. ____. Customarily, attorney fees are awarded only to prevailing parties 

or assessed against those who file frivolous suits.

Nebraska Supreme Court Online Library

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

07/18/2023 09:07 AM CDT
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8. Actions: Attorney Fees: Words and Phrases. A frivolous action is one 

in which a litigant asserts a legal position wholly without merit; that is, 

the position is without rational argument based on law and evidence to 

support the litigant’s position.

9. Contempt: Attorney Fees. In the context of a contempt proceeding, 

a trial court may award attorney fees in its discretion only in cases in 

which the court finds a party in contempt.

10. Actions: Contempt: Attorney Fees. In contempt actions in domestic 

relations cases, a trial court is authorized to award attorney fees only 

against a party found to be in contempt under Neb. Rev. Stat. § 42-370 

(Reissue 2016) or Neb. Rev. Stat. § 42-364.15 (Reissue 2016), or if a 

trial court determines the contempt action is frivolous, attorney fees 

maybe be awarded under Neb. Rev. Stat. § 25-824 (Reissue 2016).

Appeal from the District Court for Gage County: Julie 

D. Smith, Judge. Affirmed in part, and in part reversed and 

remanded with directions.

Megan M. Zobel, of Anderson, Creager & Wittstruck, P.C., 

L.L.O., for appellant.

Stephanie L. Clark, of Nelson, Clark & Timan, P.C., for 

appellee.

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

Bishop, Judge.

I. INTRODUCTION

The Gage County District Court declined to hold Ashley 

A. Hawks in contempt of court in association with Jeff A. 

Hawks’ missed parenting time with his three children following Jeff’s release from prison. The court did find Ashley in 

contempt for failing to pay supervised parenting time fees in 

violation of a temporary order requiring her to do so if any 

of the children missed their court-ordered parenting time with 

their father. Each party was ordered to pay a portion of the 

other party’s attorney fees, and after reducing what Jeff was 

ordered to pay by what Ashley was ordered to pay, Jeff had 

45 days to pay $15,890 toward Ashley’s attorney fees. Jeff 
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Cite as 32 Neb. App. 70

appeals the court’s failure to find Ashley in contempt regarding the missed parenting time and the court’s order directing 

him to pay a portion of Ashley’s attorney fees. For the reasons 

set forth below, we affirm the court’s order declining to hold 

Ashley in contempt regarding the missed parenting time but 

reverse the court’s order regarding attorney fees and remand 

the cause with directions.

II. BACKGROUND

1. Pretrial Proceedings

Ashley and Jeff were married in 2009. They have three 

children together: Andrew Hawks, born in 2011; Katelyn 

Hawks, born in 2013; and Gracie Hawks, born in 2015. From 

February 2016 until August 2020, Jeff was incarcerated following his conviction on two counts of third degree sexual 

assault of a child (not involving his own children). During that 

time, the district court entered a decree on August 2, 2018, dissolving Ashley and Jeff’s marriage. Under the decree, Ashley 

and Jeff were awarded joint legal custody of the children and 

Ashley was awarded primary physical custody. A settlement 

agreement was attached as an exhibit and incorporated into 

the decree by reference. The settlement agreement included a 

parenting plan, which stated that it was “anticipated that [Jeff 

would] remain incarcerated until approximately December 

2020.” The parenting plan provided that Ashley “shall take 

. . . at least one of the children to visit [Jeff] twice a month” 

for the duration of his incarceration. It further provided that 

“[i]f the parties are unable to agree to a specific parenting 

time schedule after [Jeff’s] release from incarceration, either 

party may file a Complaint to Modify seeking to address the 

issue of parenting time.”

Jeff was “placed on parole” in August 2020 and “was done 

with parole” the following month. On October 27, he filed 

a “Complaint for Modification,” claiming that his release 

from incarceration was a material change in circumstances 

warranting an increase in his parenting time. Ashley filed 
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Cite as 32 Neb. App. 70

an “Answer and Cross Complaint,” requesting, among other 

things, that the court award the parties joint legal custody 

and Ashley physical custody of the children, subject to Jeff’s 

reasonable rights of supervised visitation. That same day, Jeff 

filed a “Motion for Parenting Time,” requesting that the court 

enter a temporary order granting him parenting time with 

the children.

Following a hearing, the district court entered a temporary 

order on December 17, 2020, awarding Jeff supervised parenting time with the minor children every other Sunday from 9 

a.m. until 5 p.m. and every Wednesday from 2 until 7 p.m. The 

temporary order also required that Jeff pay any fees associated 

with the supervision of his parenting time.

On May 14, 2021, Jeff filed a “Motion to Revisit Temporary 

Parenting Time,” alleging that he had incurred $11,000 in 

supervision fees even though he had been “denied [his] parenting time on at least 25 occasions since the entry of the 

Temporary Order.” He further alleged that “there have been 

no safety concerns reported during any visits with the minor 

children” and requested that the court “revisit the issue of 

temporary parenting time, including whether visits should be 

supervised, who supervises and the cost of said supervisors.”

Jeff simultaneously filed a “Verified Application for Order to 

Show Cause,” alleging that Ashley had violated the December 

17, 2020, temporary order. Specifically, Jeff listed 25 separate 

dates where Ashley allegedly “interfered with and/or denied 

[Jeff his] parenting time with” one or more of the children. 

Jeff alleged that he had incurred $11,040 in supervised visitation costs through May 8, 2021, and that due to the lack of 

visitation, “the visitation company may no longer be able to 

provide visitation services.” He requested that judgment be 

entered in his favor and that he “recover costs incurred . . . 

including reasonable attorney’s fees.” On May 19, the district 

court entered an “Order to Show Cause,” ordering Ashley to 

appear before the court and show why she should not be found 

in contempt of court.
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Following a hearing on Jeff’s motion to revisit parenting 

time, the district court entered an amended temporary order on 

July 10, 2021. The amended order changed Jeff’s supervised 

parenting time to every other Saturday from noon until 5 p.m. 

and every Wednesday from 2 to 6 p.m., permitted certain individuals to supervise Jeff’s parenting time, and required that 

Ashley pay for supervision fees for any children who did not 

attend Jeff’s parenting time.

On January 28, 2022, Jeff filed a “Verified Amended 

Application for Order to Show Cause,” alleging that there had 

been 69 instances where Ashley “interfered with and/or denied 

[Jeff his] parenting time with” one or more of the children. He 

further stated that since the entry of the amended temporary 

order, Ashley failed to reimburse Jeff for $1,460 in supervision fees for missed parenting time. He also alleged that “due 

to the lack of visitation that has occurred from December 

2020 until January 2022, the Pathfinders visitation company 

suspended services with Jeff” and Jeff has struggled to find 

another supervision service. On January 31, the district court 

entered an order to show cause, ordering Ashley to appear 

before the court and show why she should not be found 

in contempt.

2. Trial

Trial was held on the contempt action only on February 14, 

April 4 and 12, and May 13, 2022. Ashley and Jeff testified, 

as well as several other witnesses, and exhibits were received. 

The evidence relevant to the issues on appeal follows.

(a) Jeff’s Incarceration

Jeff testified that he was convicted of “two counts of third 

degree sexual assault of a child” and began a 41⁄2-year period 

of incarceration on February 9, 2016. He testified that, at 

that time, “Andrew was four, Katelyn had just turned three, 

and Gracie was ten months” old. Early on in Jeff’s incarceration, the children generally visited Jeff on a weekly basis. 
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Cite as 32 Neb. App. 70

Ashley transported the children to visit Jeff prior to the dissolution of their marriage in August 2018, at which point the 

district court ordered that Jeff have two visits per month with 

at least one of the children. Jeff stated that the visits happened 

“[v]ery regularly at the beginning, but towards the end” of his 

incarceration, “there were some months that [he] didn’t get 

both visits.” Jeff stated that his father brought the children 

to most of the visits following the divorce and that Ashley 

brought them to a few of the visits. Jeff stated that the visits 

were 4 hours long and that he and the children often played in 

the gym, played games, or had “father/daughter dances.” He 

stated that the visits “went well” and that the children “would 

hug [him] at the beginning of visits, and at the end of visits.” 

Jeff also stated that he regularly spoke with the children on the 

phone and that he had two 12-hour furloughs during his incarceration to celebrate Christmas and Katelyn’s birthday.

(b) First Temporary Order

When Jeff was released from prison in August 2020, he and 

Ashley informally arranged visits with the children, where they 

“would meet . . . for an ice cream cone in a park or go[] to the 

skate park.” Jeff subsequently filed his modification complaint 

and request for parenting time because he did not feel that his 

time with the children was occurring regularly and “Ashley 

was insisting on her presence there.”

When the district court entered the first temporary order in 

December 2020 granting Jeff supervised parenting time, Jeff 

hired Pathfinders for supervision services. He consulted with 

Ashley about the service ahead of time. Jeff stated that he paid 

for the services, which amounted to thousands of dollars in 

fees, and that he was charged for the services even when the 

children did not attend his parenting time. Jeff testified that 

under the initial temporary order, he was supposed to have 

180 hours of parenting time between December 26, 2020, and 

June 16, 2021, but he was only able to exercise 35 hours with 

Andrew, 80 with Katelyn, and 130 with Gracie.
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Text messages between Ashley and Jeff discussing Ashley’s 

terms for Jeff’s parenting time were received into evidence. In 

one message, Ashley indicated that she would prefer the supervisor be a woman in case it was necessary for the supervisor 

to take Gracie to the bathroom. In another message, Ashley 

stated, “You will not be helping the kids change their pants or 

wiping butts, giving baths or anything like that.” She further 

wrote, “[T]he communication between the kids and I will be 

very open. And safety rules will be explained.” In another message, Ashley told Jeff he would have to participate in “specialized treatment” for him to earn her trust back. She stated, “I 

will not take any chances at all with my kids. I know you want 

to think you would never hurt them but [I’m] sure you believed 

you would never hurt those boys and you did.” On crossexamination, Jeff stated that it was appropriate for Ashley to 

share her concerns with him.

On December 26, 2020, the children went to Jeff’s house for 

their first visit. Jeff said that Ashley texted him during the visit 

to inform him that the children were texting her, asking her to 

pick them up early. Jeff believed this interfered with his parenting time; however, the children ultimately “stayed the entire 

time and it was a good visit.”

The children visited Jeff again on December 30, 2020, 

and January 1, 2021. Jeff described an instance where the 

children were arguing about whether they could play “tag” 

with him. When he asked them why they would not be able 

to play tag, they said that “it was a rule.” When he questioned 

Ashley about the rule, she responded in a text message that 

she had previously discussed with the children “grooming 

behaviors by adults and how grooming usually starts with 

nonsexual touching, such as accidental touching during play 

like tag, wrestling or things like that. Then that kind of 

touching desensitize[s] kids so they don’t resist more sexualized touching.”

Jeff asked Ashley whether the children had been given 

rules for his house. Ashley responded that she did not give 
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the children rules specifically about him, but they had been 

educated about “good touch, bad touch,” and that “they are in 

charge of their bodies and don’t have to have physical contact 

with anyone they don’t want to.” She stated that “[t]his is all 

in general, not just about [Jeff].” Jeff indicated that he was 

concerned that Ashley was having these conversations with 

the children outside of his presence. He wanted to be involved 

in the conversations because “it would show a unified front 

to the kids . . . and help them understand that the conversations are not necessarily about [him] but about their safety 

in general.”

According to Jeff, over time the children attended his parenting time “less and less,” although Ashley brought the children 

to his house for almost all of his scheduled parenting time. 

Jeff stated that the only times Ashley did not transport the kids 

to his parenting time were two occasions where she canceled 

Jeff’s parenting time. In one instance, she canceled because 

she had a medical appointment in Omaha, Nebraska, that ran 

long. On another occasion, she canceled because something 

came up at work and she was not able to transport the children 

to Jeff’s house. Ashley did not want to make the third party 

who picked up the children have to drop them off at Jeff’s 

house because she did not want to subject that person to the 

stress of transitions. Jeff stated that Ashley offered to schedule 

“make up” visits for his missed parenting time, although they 

had not made up one of the two missed visits at the time of 

trial. When asked whether he had requested to make up that 

parenting time, Jeff responded that he had not requested to 

make up the parenting time because “it’s been difficult, with 

supervisors and [the children’s] basketball.”

(c) Attempted Transitions

During the attempted transitions, Ashley would park her 

vehicle in front of Jeff’s house, sometimes leaving it running. 

Jeff stated that Ashley would get out of the vehicle at some 

point, but sometimes not until he walked out to the vehicle. 
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Jeff “could kind of get a sense of how the kids were feeling” 

when he approached the vehicle. Sometimes, Gracie screamed, 

and Katelyn and Andrew ignored him. Other times, the children were calm and conversational. Whether the situation 

escalated depended on the children’s moods. According to Jeff, 

they generally spent “between 40 minutes and 60 minutes . . . 

at the car” attempting to coax the children to exit the vehicle 

and attend parenting time with him.

Jeff described Andrew as the “most resistive and . . . argumentative” among the children during transitions to Jeff’s parenting time. Andrew was sometimes “disrespectful” and would 

not let Jeff talk or he would make noises as Jeff talked. One 

time he called Jeff a “dumb ass,” and there were a couple of 

instances where he left the vehicle and began walking away 

from the house. According to Jeff, when Andrew is disrespectful, Ashley will “say his name or give him a look. But . . . 

she’s fairly quiet during it, maybe trying to change the subject . . . .”

Jeff testified that Katelyn’s behavior during transitions was 

“quieter” and “not as argumentative,” but she still had outbursts at times. Gracie threw tantrums and screamed during 

transitions. The children sometimes said that they did not 

trust Jeff and that he was not their father. Ashley’s focus during drop offs was on keeping the children calm, while Jeff 

was focused on convincing the children to exit the vehicle. 

When asked whether Ashley imposed “consequences” for the 

children’s refusal to leave the vehicle, Jeff responded that he 

had not heard “anything specific from her on consequences 

that she’s implemented.” However, when the children’s therapist, Brenda Wilcox, was asked whether the children “should 

have a consequence if they don’t go” to Jeff’s parenting time, 

Wilcox responded, “No.”

Ashley stated that she generally did not “give out consequences” to the children for disrespecting Jeff, but they 

would discuss it later “after they’ve calmed down.” She stated 

that giving consequences was not part of her parenting style 
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generally. When the children were disrespectful during transitions, she tried to calmly interject by “mak[ing] eye contact 

with them, try[ing] to hold their hand, try[ing] to redirect them 

into a different conversation.” She stated that Jeff immediately 

responded when they were disrespectful to him and her, and 

“adding fuel to the fire” was not going to help because “they’re 

already escalated.”

When asked whether he believed Ashley was “doing everything she [could] to get the children to go to . . . parenting 

time,” Jeff responded, “No.” He elaborated that he believed 

they could “show a more unified front.” Jeff stated that they 

disagreed on how long to wait at the vehicle to get the children 

to come into his house for parenting time. On numerous occasions he had asked Ashley to stay “as long as it takes.” Wilcox 

testified that she believed “after an hour, hour 15 minutes[,] it 

[is] counterproductive” to continue trying to get the children to 

attend Jeff’s parenting time.

Ashley testified that she encouraged the children to attend 

Jeff’s parenting time by speaking with the children the night 

before and the morning of and asking them whether they 

would like to take any of their belongings with them. She 

stated that if one of them was needing something for “their 

activities or their sports or new shoes or something,” she suggested to the children that they purchase the item with Jeff 

“to get them excited about . . . getting something with their 

dad.” Wilcox believed there was nothing more Ashley could 

do to get the children to attend Jeff’s parenting time. When 

Wilcox was asked whether she had seen any behavior by 

Ashley that would lead her to believe Ashley was “sabotaging [the] relationship” between the children and Jeff, Wilcox 

responded, “No.”

When Ashley was asked whether she believed the children “should have a say when it comes to attending parenting time with [Jeff],” she responded that she did not believe 

the children should have a say, but that there was “a lot of 

work to do with the kids personally and . . . through family 
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counseling with their dad to try to build that relationship back.” 

When asked whether she would like Jeff “to be a constant in 

[the children’s] life,” Ashley responded, “Absolutely.”

(d) April 14, 2021, Incident

Jeff described an incident that took place on April 14, 2021, 

when Ashley picked Andrew up from Jeff’s home 11⁄2 hours 

before Jeff’s parenting time was over. Andrew had texted 

Ashley that he had a headache and wanted her to pick him 

up. Ashley notified Jeff and suggested that he give Andrew 

“Tylenol, maybe Sprite . . . and a snack.”

According to Ashley, Andrew threatened to run away from 

Jeff’s house if she did not pick him up and she was worried 

that Andrew would leave Jeff’s house and walk toward her 

home along a busy road with no sidewalk. Ashley sought 

advice from Wilcox, who testified that she believed “Andrew 

had taken off walking” based on what Ashley said to her. 

Wilcox told Ashley that “it may not have been in the best 

interest of the situation that Andrew stay.” Ashley then notified Jeff that she was picking Andrew up and called Jeff when 

she was in his driveway and Andrew was in the vehicle with 

her. Andrew was already outside Jeff’s house when Ashley 

arrived. Ashley testified that she was “follow[ing] [Wilcox’s] 

recommendation, but in hindsight, [she] should have let [Jeff]” 

handle the situation.

(e) Text Messages Regarding 

Children’s Behavior

Ashley sent Jeff the following text message on May 7, 

2021: “Andrew said he is not stayin[g] for visit and does not 

want to get up early and ride in the car for 2 h[ours] just to 

go to [L]incoln and straight back. Katelyn is still saying she 

does not want to go. Just fyi.” When asked whether it was 

the children’s choice whether to go to Jeff’s parenting time, 

Ashley responded, “No. I think I was just preparing Jeff for 

how they were behaving that morning.” According to Ashley, 
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when she notified Jeff that the children did not want to attend 

parenting time with him, it was to “giv[e] him the heads-up” 

about the children’s mood, not to signify that she was not 

bringing them to his parenting time. Jeff confirmed that Ashley 

frequently informed him of the children’s mood before visits so 

he would know what to expect.

(f) June 5, 2021, Incident

Ashley drove all three children from Beatrice, Nebraska, to 

Lincoln, Nebraska, for Jeff’s parenting time so Jeff could take 

them to the zoo. Gracie and Katelyn attended parenting time 

that day, but Andrew did not. Ashley looked for things to do to 

pass the time with Andrew. She and Andrew went to the mall, 

where they walked around. She stated that “Andrew spotted an 

arcade,” which she did not know was in the mall. They entered 

the arcade, “got a snack in there, and then [Andrew] wanted to 

play a few games.” They were in the arcade for “[m]aybe 10 

minutes, 15.”

(g) July 2021 Amended 

Temporary Order

In June 2021, Jeff filed a motion with the district court to 

“revisit parenting time” because Pathfinders informed him it 

would no longer be providing supervision services to him and 

he was struggling to find other supervision services. He stated 

that “[t]he kids weren’t attending regularly” and he “didn’t 

feel like it was a priority of Ashley to get [the children] to 

attend visits.” On July 10, the court entered an amended temporary order, which required Ashley to pay supervision fees 

for any children that did not attend Jeff’s parenting time. Jeff 

testified that although there was a “brief restart” when the 

order was entered, the children’s attendance ultimately did not 

improve. According to Jeff, from July 2021 until January 5, 

2022, Jeff was supposed to have 130 hours of parenting time, 

but he had only 10 hours with Andrew, 20 hours with Katelyn, 

and 50 hours with Gracie.
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(h) Children’s Therapy

In March 2021, Ashley began taking the children to Wilcox 

on a weekly basis for individual therapy. Wilcox testified that 

she worked with the children because they were “experiencing some anxiety . . . and they didn’t want to attend visits 

with [Jeff].” The children expressed different reasons for not 

wanting to go to Jeff’s parenting time. Andrew was embarrassed of and angry with Jeff. Katelyn and Gracie were not 

comfortable with Jeff. Wilcox indicated that it is normal for 

children to “have feelings about a situation such as this” and 

that it is acceptable to validate the children’s feelings, while 

still setting expectations that they attend parenting time with 

their father.

Wilcox observed a few of the attempted transitions during 

the summer of 2021. She described the transitions as “stressful for the family.” Wilcox observed Ashley “get out of the car 

a couple of different times,” the children refusing to get out 

of it while crying and screaming, and the children “ignoring 

[Jeff] by . . . looking at their phones or just not responding to him.” Wilcox did not believe it would be appropriate 

for Ashley and Jeff to physically remove the children from 

the vehicle. She believed it would “backfire” on Jeff and, 

“depending on the details and the context, it could maybe 

cause some trauma” for the children. Both Ashley and Jeff 

testified that they agreed not to forcibly remove the children 

from the vehicle.

Jeff testified that in October 2021, he suggested taking the 

children to family therapy, but Ashley wanted the children to 

wait a few weeks before beginning family therapy so they 

could prepare for it. In November 2021, Jeff and the children 

began attending family therapy sessions with Wilcox every 2 

weeks. On weeks that the children did not have family therapy, 

they were scheduled for individual therapy. According to Jeff, 

by the first day of trial, the children had attended “[f]ive 

or six” family therapy sessions with him. Gracie attended 
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all the family therapy sessions; Andrew and Katelyn missed 

one session because they refused to attend.

Wilcox stated that Ashley was receptive to Jeff’s participation in family therapy with the children. She stated the focus 

of family therapy was on “enhancing [Jeff’s] relationship with 

the children.” This was why Ashley was not generally involved 

in family therapy. Wilcox testified that the children had made 

progress in her time working with them but not as much as she 

had hoped by the time of trial. She stated that Andrew was at 

a “developmental age and stage where he is learning to assert 

himself and so he is defiant sometimes.” She stated that he was 

distracting for Katelyn and Gracie and sometimes disruptive 

during family therapy.

Jeff testified that Ashley did not schedule the children to 

attend individual therapy from early November 2021 to early 

January 2022. Ashley explained that she attempted to schedule 

the children’s individual therapy appointments with Wilcox 

during this period, but their schedules did not align. Ashley 

also stated that “the kids had several orthodontist appointments and eye appointments” and “it was just a really busy 

time, so it was just missed unintentionally.” The court had not 

ordered that the children attend family or individual therapy at 

any point.

(i) Wednesday Parenting Time

Jeff testified that he “didn’t feel [Ashley] was very supportive with Wednesday visits.” Ashley admitted that she was 

initially concerned about Jeff’s Wednesday parenting time 

because she believed it may disrupt the children’s routine, but 

she ultimately brought the children to the visits. On January 

6, 2021, the children were scheduled to attend parenting time 

with Jeff on a Wednesday for the first time. When Ashley 

arrived with the children, the children refused to exit the 

vehicle and Ashley was crying. The children did not leave 

the vehicle, so Ashley eventually left with them. On crossexamination, Jeff admitted that Ashley could have been upset 
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because the children did not want to go; Ashley did not cry or 

display negative emotions at any of the other attempted transitions. The following Wednesday, the children again refused 

to exit the vehicle and ultimately did not attend Jeff’s parenting time. Over the course of that year, Ashley continued to 

bring the children to Jeff’s house for his parenting time on 

Wednesdays, but she and Jeff struggled to get the children to 

exit the vehicle.

In January 2022, Wilcox suggested that Jeff pick the children up from school for his parenting time on Wednesdays. 

Wilcox stated that although Ashley had hoped the children’s 

relationship with Jeff would have been better by the time he 

started picking them up from school, she followed Wilcox’s 

recommendation. Ashley, Jeff, and Wilcox informed the children of the plan for Jeff to pick them up. Jeff testified that 

Ashley “took the lead and explained . . . what we were going to 

try and was helpful.” Jeff stated that the children were upset by 

this information, so they had the children provide input as to 

where they wanted Jeff to pick them up. Ashley provided suggestions for pick-up locations and advised Jeff how she usually 

conducts school pick-ups.

Jeff was supposed to pick the children up from school 

for the first time on January 26, 2022. While Jeff was picking Gracie up, the principal of Andrew and Katelyn’s school 

called to inform Jeff that Andrew and Katelyn left in a 

maroon vehicle and had arrived at the YMCA where Ashley 

works. Ashley and Jeff later learned that the mother of one 

of Andrew’s friends had taken Andrew and Katelyn to the 

YMCA. The friend’s mother testified that nobody asked her 

to pick up Andrew and Katelyn that day, but after picking her 

son up from school, she saw Andrew and Katelyn walking 

“about a block and a half” away from the school. When she 

asked Andrew where they were going, he informed her they 

were going to the YMCA. It was windy outside and she knew 

that Andrew was recovering from a foot injury, so she offered 

to give Andrew and Katelyn a ride. She dropped them off 
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at the YMCA and left. The friend’s mother testified that she 

did not talk to Ashley before dropping the children off and that 

she did not know that Jeff was supposed to pick them up for 

his parenting time.

That day, Jeff and the principal of Gracie’s school struggled 

for over an hour to get Gracie to go with Jeff. Gracie eventually left with Jeff once he assured her that she could stop by 

the YMCA to give Ashley a hug. Ashley informed Jeff that he 

could not be on YMCA property because he is a registered sex 

offender. She instructed him to park across the street and have 

the supervisor walk Gracie to the YMCA.

Ashley testified that when Gracie arrived at the YMCA, 

she gave her a gumball and encouraged her to go back out 

to Jeff’s vehicle. She learned at that time that Andrew and 

Katelyn had entered the pool without her permission. Andrew 

and Katelyn did not attend Jeff’s parenting time until Ashley 

had completed her workday. She transported them to Jeff’s 

house where they ate a pizza that Jeff and Gracie prepared 

together. Jeff stated that Andrew and Katelyn were there for 

“15, 20 minutes or so.” Ashley stated that she did not remember giving Andrew and Katelyn “specific consequences” for 

the incident but that she discussed with them that what they 

did “wasn’t right.”

Andrew and Katelyn have continued to walk to the YMCA 

on Wednesdays instead of waiting for Jeff to pick them up for 

his parenting time. Ashley stated that she takes away Andrew’s 

and Katelyn’s phones when they avoid being picked up by Jeff 

on Wednesdays.

3. District Court’s 

July 9, 2022, Order

The district court entered an order finding that Ashley was 

not in willful contempt of court regarding parenting time but 

was in willful contempt regarding nonpayment of fees for 

missed supervised parenting time.
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(a) Not in Willful Contempt 

Related to Parenting Time

Regarding parenting time, the district court concluded Jeff 

had not met his burden of proving, by clear and convincing 

evidence, that Ashley was in willful contempt for interfering 

with his parenting time. The court explained:

There is simply no evidence of any wrongdoing on 

[Ashley’s] part. To the contrary, [Ashley] seems to be 

making every possible effort, short of physical force, to 

get the children to attend [Jeff’s] parenting time. Both 

parties have agreed not to use physical force. It is no 

more [Ashley’s] fault than it is [Jeff’s] that the children 

will not get out of the vehicle for [Jeff’s] parenting time. 

This is an unfortunate situation. [Jeff] was in prison 

for 4.5 years. The children, particularly the older two, 

are having a difficult time with these family dynamics. 

The parents are both making efforts, including trying 

to coparent and having the children in counseling. The 

relationship with the children may never return to what 

it was prior to the incarceration, and if it does, that is 

going to take time. [Ashley] is not in willful contempt 

of court.

(b) Willful Contempt for 

Nonpayment of Fees

The district court did find Ashley in contempt of court for 

failing to reimburse Jeff $1,460 in parenting time supervision fees since the entry of the July 10, 2021, temporary 

order. The court recognized that “the parties have a disparity 

in income” but that there was no evidence Ashley had “any 

type of disability which would prevent her from earning the 

money through regular or supplemental employment.” The 

court further noted that Ashley had borrowed money to pay 

her attorney fees and there was “no evidence to suggest that 

she could not have done the same to meet her financial obligations under the July 10, 2021[,] order.” The court found that 
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Ashley was “in willful contempt for failure to reimburse [Jeff] 

in the amount of $1,460.”

(c) Modification of Supervised 

Parenting Time

The district court further noted that it could modify a 

parenting plan in a contempt action. It pointed out that Jeff 

had spent “over $14,000.00 on supervised parenting time.” 

The court explained that the “main purpose of the supervised parenting time was to ensure that the children are safe, 

given [Jeff’s] conviction” and the “main purpose of ordering [Ashley] to pay for visits which the child(ren) failed to 

attend was to give her a financial incentive to ensure that all 

three children attend parenting time,” but that “[t]his is not 

working.” The court observed that “there have been no safety 

concerns for the children while in their father’s care,” and 

witnesses testified that they had not observed any safety concerns, the children appeared comfortable, Jeff appropriately 

cared for the children during visits, and Jeff “is a safe parent.” 

The court also stated that Ashley testified she believed the 

children were safe during visits and that no safety concerns 

had been reported to her. Therefore, “[h]aving professionals supervise these visits has been expensive, and it appears 

to be unnecessary.” The court proceeded to amend the July 

10, 2021, amended temporary order to allow “‘the children’s 

paternal grandfather, another mutually-agreeable adult member of the father’s family . . . or another mutually-agreeable 

. . . individual’” to supervise Jeff’s parenting time. It further 

directed that Ashley “‘shall not use the inability to agree upon 

a supervisor as a reason for withholding parenting time’” and 

that if she does not agree upon a suitable person, “‘she shall 

be prepared to provide the Court with a reasonable, articulable 

justification for disagreeing on the supervisor.’”

(d) Attorney Fees

Regarding attorney fees, the district court indicated it had 

“the power to award attorney’s fees in a contempt action.” 
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It determined that Ashley’s “reasonable attorney’s fees are 

approximately $22,000” and Jeff’s “reasonable attorney’s fees 

are approximately $24,500.” The court approximated that 90 

percent of the case was spent on “parenting time issues” and 

10 percent was spent on “failing to pay supervision fees.” 

Since the court found that Jeff’s “action against [Ashley] 

regarding the parenting time was without merit,” it ordered 

Jeff to pay Ashley’s attorney fees of $19,800 (90 percent of 

Ashley’s attorney fees of $22,000). And since the court found 

Ashley was “in willful contempt for failure to pay the supervision fees,” it ordered Ashley to pay Jeff’s attorney fees in 

the amount of $2,450 (10 percent of Jeff’s attorney’s fees 

of $24,500).

The court ordered Ashley to serve 14 days in jail for failing 

to pay the supervision fees but provided that she could purge 

herself of contempt by paying Jeff the $1,460 in supervision 

fees and the $2,450 in attorney fees. It ordered Jeff to pay 

$15,890 to the district court clerk within 45 days. The court 

further ordered that “[b]ecause the amount owed by [Ashley] 

has been allocated to reduce the amount [Jeff] is required 

to pay, the Court finds that [Ashley] has purged herself of 

contempt and will not have to serve the fourteen (14) days 

in jail.”

Jeff appeals.

III. ASSIGNMENTS OF ERROR

Jeff assigns that the district court abused its discretion in 

(1) failing to find Ashley in contempt of court for her interference and denial of parenting time and (2) ordering him to pay 

attorney fees.

IV. STANDARD OF REVIEW

[1] In a civil contempt proceeding where a party seeks 

remedial relief for an alleged violation of a court order, 

an appellate court employs a three-part standard of review 

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

reviewed de novo, (2) factual findings are reviewed for clear 
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error, and (3) determinations of whether a party is in contempt and of the sanction imposed are reviewed for abuse 

of discretion. Cech v. Cech, 30 Neb. App. 618, 971 N.W.2d 

801 (2022).

[2,3] A trial court’s decision awarding or denying attorney 

fees will be upheld on appeal absent an abuse of discretion. In 

re Estate of Forgey, 298 Neb. 865, 906 N.W.2d 618 (2018). A 

judicial abuse of discretion requires that the reasons or rulings 

of the trial court be clearly untenable insofar as they unfairly 

deprive a litigant of a substantial right and a just result. Id.

V. ANALYSIS

1. Contempt

Jeff contends the district court abused its discretion in failing to find Ashley in contempt of court for her interference and 

denial of his parenting time.

[4,5] Civil contempt proceedings are instituted to preserve 

and enforce the rights of private parties to a suit when a 

party fails to comply with a court order made for the benefit of the opposing party. See, Hossaini v. Vaelizadeh, 283 

Neb. 369, 808 N.W.2d 867 (2012); Smeal Fire Apparatus 

Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010), 

disapproved on other grounds, Hossaini v. Vaelizadeh, supra. 

Willful disobedience is an essential element of contempt; 

“willful” means the violation was committed intentionally, 

with knowledge that the act violated the court order. Hossaini 

v. Vaelizadeh, supra. 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. See Smeal Fire Apparatus Co. 

v. Kreikemeier, supra.

With respect to contempt proceedings related to interference with visitation and parenting time, the Nebraska 

appellate courts have looked to the custodial parent’s conduct and whether the parenting time actually occurred. See 

Rodas v. Franco, 30 Neb. App. 910, 974 N.W.2d 856 (2022). 
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For example, in Krejci v. Krejci, 304 Neb. 302, 934 N.W.2d 

179 (2019), the Nebraska Supreme Court affirmed a trial 

court’s decision not to hold a mother in contempt for the 

children’s nonattendance of the grandfather’s visitation time 

because the mother did not encourage or instruct the children 

to refuse to attend the visit. In Martin v. Martin, 294 Neb. 

106, 881 N.W.2d 174 (2016), the Nebraska Supreme Court 

upheld a decision by a trial court to hold a parent in contempt 

where that parent consistently transferred the responsibility of 

deciding whether to attend parenting time to the children and 

the noncustodial parent repeatedly was unable to exercise his 

court-ordered parenting time.

Most recently, in Rodas v. Franco, supra, this court reversed 

a finding of contempt against the mother, the custodial parent, where the father missed his scheduled parenting time on 

various occasions even though the mother encouraged the 

child to attend the father’s parenting time, enrolled the child in 

therapy where the therapist worked with the child on attending 

the father’s parenting time, and transported the child and his 

belongings to each transition while attempting to convince him 

to go with the father.

Jeff argues that the facts of the present case are like those 

in Martin v. Martin, supra, where the father was not able to 

exercise his parenting time with his sons on numerous occasions over a 4-month period. There, the trial court received 

evidence of communications between the parties that showed 

the mother was deferring to the decisions of the children that 

they did not want to go to the father’s parenting time and placing the responsibility on the father to make the children spend 

parenting time with him. The Nebraska Supreme Court determined the lower court did not abuse its discretion in finding the 

mother’s behavior to be in willful contempt, stating:

As a singular event, [the mother’s] allowing the boys 

to exercise the final decisionmaking authority in regard 

to [the father’s] parenting time may have been defensible, but the consistent pattern of her transferring her 
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responsibility to the boys supports the finding of the trial 

court. [The mother’s] continued behavior, coupled with 

the evidence that [the father] was not able to exercise his 

court-ordered parenting time, leads to the further finding 

that there was no abuse of discretion by the trial court in 

determining [the mother] was in willful contempt for not 

allowing [the father] parenting time as ordered.

Id. at 119, 881 N.W.2d at 183-84.

On the other hand, Ashley argues that the facts of the present case are more comparable to Rodas v. Franco, 30 Neb. 

App. 910, 974 N.W.2d 856 (2022).

In Rodas v. Franco, supra, there was no evidence that 

the mother told the child he was free to refuse to attend his 

father’s parenting time or discouraged him from going. This 

court observed that when the child expressed that he did not 

want to attend the father’s parenting time, the mother “would 

try to calm him down, encourage him to spend time with [the 

father], remind him of the fun things they would do together, 

and assure him that she would call him while he was gone.” 

Id. at 945, 974 N.W.2d at 879. The mother also spoke with the 

family therapist about how to make exchanges go smoothly. 

Despite the mother’s encouragement, the child often refused 

to attend his father’s parenting time. The family therapist 

advised against physically forcing the child to attend the 

father’s parenting time because it could be emotionally damaging for him.

Here, it was undisputed that Jeff was unable to exercise 

his parenting time with at least one of the children during 

the 69 days listed in his amended application for order to 

show cause. Jeff argues that, similar to Martin v. Martin, 294 

Neb. 106, 881 N.W.2d 174 (2016), Ashley interfered with his 

parenting time by “permitting the children to have a choice 

and by giving them the authority to decide whether they want 

to attend parenting time or not.” Brief for appellant at 29. 

However, Ashley testified that when she discusses Jeff’s parenting time with the children, she “never lay[s] it out to them 
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like they have a choice”; she simply notifies them that they 

“have Dad’s today.” Ashley transported the children to Jeff’s 

house or another agreed-upon location for almost all of Jeff’s 

scheduled parenting time. There were only two times when 

Ashley did not transport the children: once when she had a 

medical appointment in Omaha that ran long and once when 

something came up at work. Because of the difficulty Ashley 

and Jeff had getting the children to cooperate in parenting 

time transitions, Ashley was not comfortable asking a third 

party to transport the children for her.

Before bringing the children to Jeff’s house, Ashley actively 

encouraged them to attend Jeff’s parenting time by suggesting 

that they bring certain belongings with them or have Jeff take 

them to buy certain items they need for their activities. Despite 

Ashley’s efforts, when she took the children to Jeff’s house, 

they often refused to exit the vehicle.

Ashley and Jeff had to coax the children to exit the vehicle 

for an average of 40 to 60 minutes at each attempted transition. When the children were acting out in the vehicle, 

Ashley attempted to calm them down. Additionally, Wilcox 

testified that Ashley helped with “brainstorming” ideas for 

how to get the children to attend Jeff’s parenting time. 

Wilcox also stated that she believed Ashley was doing all 

she could to get the children to attend Jeff’s parenting time, 

short of physically removing the children from the vehicle, 

which Wilcox advised could “backfire.” Regarding the lack 

of “consequences” imposed by Ashley for the children’s nonattendance of Jeff’s parenting time, Wilcox testified that she 

did not believe the children should be punished for that. 

Additionally, Ashley testified that imposing consequences is 

not generally a part of her parenting style. Regardless, when 

Andrew and Katelyn went to the YMCA instead of Jeff’s 

Wednesday parenting time, Ashley took away their phones for 

part of the evening.

Ashley enrolled the children in individual therapy in 

March 2021, in hopes of improving the children’s relationship 
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with Jeff. The children also began attending family therapy 

with Jeff in November. Wilcox testified that Ashley was receptive to Jeff’s participation in family therapy. Even so, Jeff 

claims that Ashley “failed to make the children’s individual 

and family therapy a priority.” Brief for appellant at 23. He 

points out that Ashley failed to schedule the children for individual therapy from early November 2021 to early January 

2022. However, Ashley explained that her failure to schedule 

the appointments during this period was not intentional; it 

was simply a busy time, and she could not get schedules to 

align. During this time, the children continued to attend family therapy, and in January 2022, the children resumed their 

individual therapy.

Jeff argues that Ashley has “passively interfered” with his 

parenting time by discussing safety rules with the children. 

Brief for appellant for 23. However, Ashley testified that she 

did not discuss grooming, “good touch” and “bad touch,” 

or any other safety rules with the children in relation to Jeff 

specifically; she discussed such issues with the children in 

general terms.

Jeff contends Rodas v. Franco, 30 Neb. App. 910, 974 

N.W.2d 856 (2022), is distinguishable because the amount of 

missed parenting time in this case is greater than in Rodas. 

However, the circumstances in this case are unique in that the 

children’s relationship with Jeff was damaged because he was 

incarcerated for a period of 41⁄2 years for two convictions of 

third degree sexual assault of a child. Ashley is attempting to 

maintain the children’s safety while also trying to support the 

children’s relationship with Jeff. We agree with the district 

court’s observation that it may take time for Jeff to heal his 

relationship with the children.

While we recognize that the responsibility for adhering 

to a parenting plan does not and should not devolve to the 

children, the clear and convincing evidence does not establish 

that Ashley intentionally interfered with Jeff’s parenting time. 

Accordingly, the district court did not abuse its discretion 
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in finding that Ashley was not in contempt of court regarding 

the missed parenting time.

2. Attorney Fees

Jeff also assigns that the district court abused its discretion 

in ordering him to pay $19,800 of Ashley’s attorney fees. He 

points out that he had missed over 69 days of parenting time so 

his case “was filed with merit and was not frivolous.” Brief for 

appellant at 36. Jeff further argues that he “was not found in 

contempt, nor was there an action on file for him to be found 

in contempt,” and that attorney fees are awarded “when there 

has been a finding of contempt.” Id. We agree with Jeff that 

the court abused its discretion by ordering him to pay a portion 

of Ashley’s attorney fees, since there is no authority for such 

an award.

[6-8] 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, 288 Neb. 213, 846 

N.W.2d 626 (2014). Customarily, attorney fees are awarded 

only to prevailing parties or assessed against those who file 

frivolous suits. Id. Additionally, Neb. Rev. Stat. § 25-824 

(Reissue 2016) provides for “reasonable attorney’s fees and 

court costs against any attorney or party who has brought or 

defended a civil action that alleges a claim or defense which 

a court determines is frivolous or made in bad faith.” A frivolous action is one in which a litigant asserts a legal position 

wholly without merit; that is, the position is without rational 

argument based on law and evidence to support the litigant’s 

position. Nathan v. McDermott, 306 Neb. 216, 945 N.W.2d 92 

(2020). The district court made no finding that Jeff’s action 

was frivolous, nor would the record support such a finding.

Specific to contempt proceedings in domestic relations 

actions, Neb. Rev. Stat. § 42-370 (Reissue 2016) provides 

that “[c]osts, including a reasonable attorney’s fee, may be 

taxed against a party found to be in contempt.” The statute 
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is silent as to the availability of awarding attorney fees for 

successfully defending a contempt action. Additionally, Neb. 

Rev. Stat. § 42-364.15 (Reissue 2016) provides for “reasonable attorney’s fees” to be taxed against a parent found in 

contempt in the enforcement of orders relating to “parenting 

time, visitation, or other access” with a minor child.

[9] In Hoppe v. Hoppe, No. A-98-1153, 2000 WL 4136 

(Neb. App. Jan. 4, 2000) (not designated for permanent publication) (petition for further review denied March 1, 2000), 

this court reversed a trial court’s award of attorney fees to a 

party who successfully defended against a contempt action. 

After examining § 42-370 and case law supporting an award 

of attorney fees against someone found in contempt, this 

court determined that “[u]nder Nebraska law, a trial court 

may award attorney fees in its discretion only in cases in 

which the court finds a party in contempt.” 2000 WL 4136

at *7. See, also, Wiseman v. Wiseman, No. A-04-514, 2005 

WL 2347678 (Neb. App. Sept. 27, 2005) (not designated for 

permanent publication) (trial court abused its discretion by 

ordering former husband to pay attorney fees when he was 

not found in contempt, nor was his request for show cause 

order frivolous).

[10] Accordingly, in contempt actions in domestic relations cases, a trial court is authorized to award attorney fees 

only against a party found to be in contempt under § 42-370 

or § 42-364.15, or if a trial court determines the contempt 

action is frivolous, attorney fees maybe be awarded under 

§ 25-824. Because Jeff was not found to be in contempt, nor 

was his action frivolous, the district court abused its discretion by ordering Jeff to pay any of Ashley’s attorney fees, and 

we reverse, and remand with directions to vacate that portion 

of the order. And since there is now no attorney fees award 

owed by Jeff to offset what the court ordered Ashley to pay, 

we briefly address the remaining obligation under the July 9, 

2022, order.
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As set forth above, the district court found Ashley in contempt for failing to pay $1,460 in supervised parenting time 

fees. Accordingly, the court had the authority to order Ashley 

to pay any portion of Jeff’s attorney fees, which it did, in the 

amount of $2,450. The court ordered Ashley to serve 14 days 

in jail for “failing to pay supervision fees” but allowed Ashley 

to “purge herself of contempt by paying $1,460.00 for supervision fees as well as $2,450.00 for attorney’s fees.” The court 

then reduced the amount of attorney fees Jeff was ordered to 

pay by the amounts Ashley was ordered to pay for the supervision and attorney fees, which totaled $3,910. With that reduction, the court concluded that “[b]ecause the amount owed by 

the mother has been allocated to reduce the amount the father 

is required to pay, the Court finds that the mother has purged 

herself of contempt and will not have to serve the fourteen (14) 

days in jail.”

Ashley did not cross-appeal the district court’s order finding her in contempt for failing to pay $1,460 in supervised 

parenting time fees, nor did she cross-appeal the $2,450 in 

attorney fees awarded to Jeff due to her willful contempt. 

This may be due in part to the fact that during Jeff’s testimony, he acknowledged that since his filing of the application 

for an order to show cause, Ashley had paid the supervision 

fees and he was not “pursuing that issue . . . today.” Despite 

that testimony, the court nevertheless found that there was no 

evidence to suggest Ashley could not have paid the fees as 

ordered in July 2021, and therefore, it found her to be in willful contempt for failure to reimburse Jeff the $1,460 owed. 

And as discussed above, reasonable attorney fees may be 

taxed against a party found to be in contempt. See § 42-370. 

Ashley did not ask the district court to reconsider its decision 

given the testimony that she had paid the supervision fees 

prior to the commencement of trial, nor did she challenge 

that part of the order on appeal to this court. We therefore 

need not consider whether the payment made before trial 
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commenced was sufficient to overcome Ashley’s prior willful 

disobedience of the July 2021 temporary order.

However, as a result of our reversal of the attorney fees that 

Jeff was ordered to pay, the district court’s attempt to apportion the fees between the parties on a proportionate basis was 

impacted, as was the portion of the order that found Ashley 

had purged herself of contempt. Now knowing that Jeff cannot be ordered to pay any portion of Ashley’s attorney fees, 

the court should have the opportunity to reconsider whether 

Ashley should be ordered to pay any portion of Jeff’s attorney 

fees, particularly given the income disparity between the parties. We therefore reverse, and remand the issue of attorney 

fees to the district court with directions to vacate that portion 

of its July 9, 2022, order, related to Ashley’s payment of Jeff’s 

attorney fees and her purge plan, and to enter a new order 

regarding the same.

VI. CONCLUSION

For the reasons set forth above, we affirm the portion of the 

district court’s July 9, 2022, order finding that Ashley was not 

in contempt of court regarding Jeff’s missed parenting time. 

We reverse the portion of the court’s order regarding attorney 

fees. We remand the cause to the district court with directions 

to (1) vacate the portion of the order requiring either party 

to pay attorney fees, (2) vacate Ashley’s previous purge plan 

and the court’s finding that Ashley had purged herself of contempt, and (3) enter a new order regarding Ashley’s responsibility for Jeff’s attorney fees, if any, and modifying Ashley’s 

purge plan as appropriate.

Affirmed in part, and in part reversed 

and remanded with directions.