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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

BROWN V. BROWN

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

EDWIN F. BROWN, APPELLANT,

V.

DELANA L. BROWN, NOW KNOWN AS DELANA L. RAMIREZ, APPELLEE.

Filed June 25, 2019. No. A-18-521.

Appeal from the District Court for Lancaster County: SUSAN I. STRONG, Judge. Affirmed.

David P. Kyker for appellant.

Terrance A. Poppe and Anne E. Brown, of Morrow, Poppe, Watermeier & Lonowski, P.C., 

for appellee.

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

MOORE, Chief Judge.

I. INTRODUCTION

Edwin F. Brown appeals the order of the district court for Lancaster County, which denied 

his complaint to modify custody of the parties’ children previously awarded in the decree of 

dissolution to DeLana L. Brown, now known as DeLana L. Ramirez. He also appeals the district 

court’s failure to find that DeLana was in contempt of the original divorce decree. For the reasons 

set forth below, we affirm.

II. BACKGROUND

Edwin and DeLana were married in May 2004, and they have two children: Vicente, born 

in 2006, and MariElena, born in 2008. Edwin and DeLana separated in January 2012, and Edwin 

filed a complaint for dissolution of marriage. On February 5, 2013, the district court entered a 

decree, dissolving Edwin and DeLana’s marriage and awarding physical and legal custody of the 
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children to DeLana, subject to Edwin’s rights of parenting time. The following provisions from 

the parenting plan are relevant to this appeal:

C. LOCATION OF THE CHILDREN DURING THE WEEK

The Father should be allowed reasonable parenting time with the parties’ children 

including, without limitation, as follows:

1. Every other weekend from Sunday at 2:00 p.m. to Thursday at 8:00 a.m. or the 

commencement of school whichever is earlier.

D. TRANSITION PLAN

. . . .

Unless otherwise agreed between the parents, the Father is to provide transportation 

for his parenting time with the children. If the Father is 15 or more minutes late to pick up 

the children for a scheduled parenting time, he forfeits that parenting time. The failure of 

the Father to return the children within 15 minutes of the conclusion of his parenting time 

will constitute a waiver of his next scheduled parenting time; however his failure to insure 

that the children are delivered to school in a timely fashion (i.e., not being tardy) will also 

constitute a waiver of his next scheduled parenting time.

. . . .

E. DAY TO DAY DECISION MAKING

The Mother of the children shall have the final say in all day to day decision making 

relating to the minor children that shall include primacy in the choices regarding the 

children’s education, religious upbringing and medical needs. Recognizing the importance 

that mutual participation and cooperation play in nurturing the children in a stable and 

loving environment, the Mother shall freely discuss these issues with the Father in an effort 

to reach a consensus of these issues at a meaningful time in advance of such decision. In 

the event of an impasse, however, the Mother shall have the final say of these matters.

F. PROVISION FOR FUTURE MODIFICATIONS

With respect to the resolution of any future changes or conflicts regarding parenting 

functions or this parenting plan, the Father and the Mother shall first seek resolution 

through mutual agreement and, if not successful, they shall then seek the assistance of a 

qualified mediator. The cost of mediation shall be split equally between the Father and the 

Mother. Judicial intervention can only be sought after mediation has not been successful 

in resolving any conflict between the Father and the Mother.

G. MAXIMAZATION OF THE SAFETY OF ALL OF THE PARTIES AND 

THE CHILDREN

The children’s best interests require the utmost cooperation between Mother and 

Father. To this end, neither party shall disparage the other or in any way denigrate the other 

party, in any activity or communication involving their child. Neither party will inquire of 

the other’s personal affairs through the children. Each party shall cooperate with the other 

to the fullest extent necessary in order to foster and promote a safe, secure, and loving 

environment for the children.

H. COMMUNICATION

Face-to-face communication is not a reasonable method for issue resolution 

between the Father and the Mother at his [sic] time. Additionally, the parents are not to 
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exchange information through the children. As a result, the primary method of 

communication between the Father and the Mother is to be via email/regular mail/voice 

mail/or other social network media. The communication is to be made in a businesslike 

manner, without language that is sarcastic, derogatory, inflammatory, demeaning, 

judgmental or accusatory or that digresses with a historical statement of past problems or 

failures to cooperate. Neither the Father nor the Mother is to engage in name calling. 

Communication is to be direct and short and is to state the issues, explanatory information 

and suggested resolution. The responding parent is to acknowledge receipt of the 

communication and is to respond in a timely manner or is to request clarification, as 

necessary.

. . . .

J. ACCESS TO RECORDS AND EMERGENCY DECISION MAKING

Each parent shall continue to have full and equal access to the education and 

medical records of his or her children. Either party is authorized to make emergency 

decisions affecting the health or safety of his or her children while the children are in the 

physical custody of either parent.

. . . .

L. PROVISION REGARDING EXTRA-CURRICULAR ACTIVITIES

Both parties shall inform one another reasonably in advance of all events where a 

parent may participate in the children’s activities or events (for example, school plays, 

teacher conferences, sporting events, music recitals, etc.) Notice shall be provided in such 

a way that the other parent have the maximum opportunity to attend that activity or event 

as it is important to the children’s developmental process. The parties recognize the

importance of extra-curricular activities for the children and their children’s wishes and 

desires with regard to those activities shall be considered to be of paramount importance 

and each party shall insure, to the extent reasonably possible, that the minor children attend 

their extracurricular [sic] activities.

M. SCHEDULING

Neither the Father nor the Mother shall schedule, permit to be scheduled or accept 

any invitation to any activity (e.g., school activity, extra-curricular activity, birthday party

or other social activity) for or on behalf of either of the children that conflicts with the 

parenting time of the other parent, without notice to and prior written consent from the 

other parent.

Edwin filed a request for modification of custody in late 2014 or early 2015, and after trial, 

an order was entered in June 2015 denying Edwin’s request.

1. PRESENT MODIFICATION ACTION

In October 2016, Edwin filed another complaint to modify custody and child support. In 

his operative pleading, Edwin alleged that a material change of circumstances had occurred that 

was not contemplated by the parties at the time of the decree was entered. Edwin alleged that he 

and DeLana had moved closer to one another, which would better enable joint physical custody 

and required a modification of the parenting plan’s transportation provisions; that DeLana had 
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failed to meaningfully participate in mediation; that DeLana had failed to comply with the current 

parenting plan; that DeLana had detrimentally impacted his relationship with their children; that 

he had a flexible employment schedule that gave him increased availability to provide care for the 

children while DeLana worked; that his earning capacity had decreased substantially while 

DeLana’s earning capacity has increased substantially; and that applying the Nebraska Child 

Support Guidelines would decrease his child support obligation by more than 10 percent. He 

alleged that these material changes in circumstance warranted modifying the parenting plan to 

award him legal and physical custody of the children, or alternatively joint legal and physical 

custody, as well as a recalculation of his child support obligation.

In April 2017, Edwin filed a motion for transportation assistance, asking the court to 

authorize him to use a third party to assist with transportation and to effectuate visitation. The court 

granted Edwin’s motion, and entered an order that authorized certain individuals to provide 

transportation assistance to Edwin in exercising his parenting time.

DeLana filed an answer to the operative complaint and a “cross complaint” for 

modification. She admitted Edwin’s foundational allegations, but denied his substantive 

allegations. She alleged that Edwin’s earnings and earning capacity had increased since the entry 

of the decree such that applying the Nebraska Child Support Guidelines would increase his 

obligation to pay child support by more than 10 percent. Thus, she asked the court to enter an order 

increasing Edwin’s child support obligation, and to award her a reasonable attorney fee.

Edwin also filed an application for an order to show cause in October 2017, alleging that 

DeLana failed and refused to obey the decree of dissolution and attached parenting plan. Edwin 

alleged that DeLana violated the provisions regarding parenting time, transitions, child safety, and 

scheduling by changing the start time and location of his parenting time on various dates and 

without his consent due to the children’s activities; by refusing on occasion to relinquish the 

children to him; by cancelling his parenting time at the last minute on several dates; by cancelling 

his parenting time after the children were tardy or absent from school; and by acting in a derogatory 

and demeaning manner toward a court-approved transportation assistant. Edwin alleged that 

DeLana violated the provision regarding decisionmaking by allowing Vicente to quit a basketball 

team without consulting him. Edwin alleged that DeLana violated the provision regarding future 

modifications by not agreeing to mediate parenting time disputes. Edwin alleged that DeLana 

violated the provision regarding communication by using the children to communicate changes in 

his parenting time to him on various occasions; and by routinely failing to reply to his requests for 

discussions about issues for months or even not at all. Edwin alleged that DeLana violated the 

provision regarding access to records by not providing the children’s immunization histories to 

him when he asked for them. Finally, Edwin alleged that DeLana violated the provision regarding 

the children’s extracurricular activities by enrolling the children in activities without informing 

him about them; by failing to provide his contact information to the children’s coaches and 

teachers; by failing to provide him with the schedules for the children’s extracurricular activities; 

and by changing his parenting time on account of these activities without his consent.

On November 7, 2017, the district court entered an order to show cause, directing DeLana 

to appear so as to show cause as to why she should not be found in contempt for violating the 

decree and the transportation order.
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2. TRIAL

The district court held a trial on Edwin’s complaint for modification of decree, DeLana’s

counter complaint for modification, and the order to show cause on December 19, 2017, and 

February 1, 2018. In addition to the parties, several witnesses testified, and numerous exhibits 

were received in evidence.

(a) Reyes’ Testimony

Stephen Reyes testified that he had known Edwin for more than 20 years and that he is 

Vicente’s godfather. He had also known DeLana’s family for an extended period of time. Since 

the parties’ divorce, Reyes had seen Edwin with Vicente and MariElena about once per month, 

during which time he observed Edwin to be an involved father. Reyes attended many of Vicente’s 

athletic events, and he admitted that Edwin was not present at all of the events that he attended. 

Although Reyes observed Edwin to be frustrated with his custody situation, he had never heard 

Edwin speak negatively, disparagingly, or derogatorily of DeLana in the presence of the children.

Edwin asked Reyes to retrieve the children from DeLana and deliver them to a performance 

of Edwin’s band on May 7, 2017, which the court’s transportation order permitted him to do. When 

Reyes arrived at DeLana’s house to retrieve the children, DeLana informed him that she was the 

children’s primary caregiver. She then demanded to inspect Reyes’ drivers’ license, which he did 

not allow. DeLana asked Reyes whether he had her phone number. When he replied that he did 

not, she wrote her number on a piece of paper and threw the paper at him. DeLana told Reyes that 

it seemed Edwin’s performance was more important to him than his time with his children, and 

then she cursed at him. Reyes claimed that the children stood directly behind DeLana as this 

exchange occurred and that the look on their faces while DeLana spoke bothered him.

(b) Edwin’s Testimony

Edwin testified that he filed the modification and contempt action because of DeLana’s 

“abuses.” He felt that DeLana was specifically acting to alienate him from his children and that 

she did not involve him in decisionmaking. He felt that he led by example in his co-parenting 

relationship with DeLana. He had recently purchased a three-bedroom single family home that 

was near DeLana’s house and the children’s school. The court received Edwin’s proposed 

parenting plan, suggesting that the court award him sole physical custody and that he and DeLana 

receive joint legal custody.

Edwin believed that DeLana violated the decree’s provision concerning day-to-day 

decisionmaking by allowing Vicente to quit a basketball team without consulting him. DeLana 

advised Edwin in an email that Vicente would be quitting the team, and the only explanation she 

gave was that Vicente disliked the coach.

Edwin claimed that DeLana would send him emails just before his parenting time began to 

inform him that his parenting time would commence after the children’s extracurricular activity. 

He provided multiple examples of this occurring. Edwin had never given DeLana written consent 

to alter his parenting time for the children’s activities, nor had he given consent for the children to 

participate in the activities. Edwin asserted that DeLana would take the children to activities before 

his parenting time began, and then she would require him to pick the children up from their activity 

rather than from her house. In the 6 to 10 months before trial, DeLana used Vicente to 
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communicate these parenting time alterations to Edwin. Edwin provided several examples of 

Vicente communicating with him in DeLana’s stead. Edwin testified that his parenting time was 

precious to him. Although he wanted his children to be involved in extracurricular activities, he 

also wanted to be involved in scheduling those activities.

Edwin claimed that DeLana sent him a derogatory message on July 31, 2016. He had failed 

to take MariElena to a soccer game scheduled that day because he believed the game would be 

cancelled as it had rained earlier in the day. DeLana emailed and texted Edwin to ask whether 

MariElena would attend the game. Edwin replied that she would not, that she was asleep, and that 

they were on their way to Omaha. An argument ensued in which DeLana used an expletive.

Edwin sent DeLana an email on June 30, 2016, asking for the children’s doctor’s 

information. He needed the information to register the children for a camp that would occur during 

his parenting time. Because he did not receive a reply, Edwin again emailed DeLana on July 10, 

2016, asking for the information. Her only response to him was that the children’s doctors had not 

changed. Edwin admitted that DeLana had always taken the lead with regard to the children’s 

medical needs.

Edwin claimed that Vicente participated at a swim meet in June 2017. DeLana did not 

inform him that Vicente had joined a swim team, and as a result, Edwin could not attend the meet. 

Edwin claimed that he was not aware that Vicente had participated in a basketball team in June 

2016 until the last game of the season. Edwin also claimed that the children had participated in 

two foot races about which DeLana had not informed him.

Edwin explained that when DeLana did inform him that she enrolled the children in an 

extracurricular activity, she often would not provide him with the name of the coach or that coach’s 

contact information. As an example, he noted that when DeLana signed Vicente up for baseball, 

she told Edwin the team’s name and the organization with which it was associated. DeLana 

indicated that the schedule and other information would be available online. Edwin claimed that it 

never was. He requested that DeLana provide the children’s coaches with his contact information. 

He also wanted to be involved in deciding whether the children would participate in these activities 

in the first place. He admitted, however, that DeLana sent him the children’s schedules some of 

the time. Edwin further admitted that his children’s coaches were always accommodating 

whenever he approached them independently.

Edwin attended two different churches, and neither of those churches was the church that 

DeLana attended with Vicente and MariElena. Vicente and MariElena were students at the school 

that was attached to their church, and Vicente served and sang at weekday and Sunday services. 

When Vicente participated in weekday services, his teachers notified Edwin. But when Vicente 

participated in a Sunday service, Edwin received no notification. Edwin observed that Vicente’s 

faith was very important to him, and he wanted to be involved with Vicente’s interests. He 

admitted, however, that he had not informed DeLana that he would like to attend the services in 

which Vicente participated.

Edwin claimed that DeLana did not allow him to take the children to Chicago to attend the 

funeral of his cousin who had been murdered. In October 2017, Edwin took Vicente and MariElena 

to Colorado for the funeral a family friend’s children, who had been murdered by their older 

brother. The funeral occurred on a Monday during his parenting time, and the children had the day 

off from school for other reasons. Edwin and the children remained in Colorado the day after the 
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funeral, and the children missed school. He left Colorado with the children at 11 p.m. on the second 

day, but they arrived in Lincoln in time for school the next day. Edwin only told DeLana that he 

was taking the children to an out-of-state funeral after DeLana asked him whether Vicente would 

be attending an extracurricular activity that was scheduled during the funeral. Because Edwin did 

not deliver the children to school on the day after the funeral, his next scheduled parenting time 

was cancelled. Edwin had also taken the children out of school for his band’s performance and a 

vacation in South Dakota. Because the children were absent from school for this trip to South 

Dakota, his next scheduled parenting time after the trip was cancelled.

Edwin did not believe the parenting plan cancelled his next scheduled parenting time when 

he took the children out of school altogether, but rather only when he delivered the children to 

school tardy. He also felt that because his children’s school only punished a child after he or she 

arrived to school tardy five times, he should not lose his parenting time until they were tardy more 

than five times. He asserted that DeLana had admitted this interpretation of the parenting plan in 

a November 2015 email. The children had been tardy twice in the 2016-2017 school year, both 

during Edwin’s parenting time. The children had not been tardy at all in the 2017-2018 school 

year.

At the time of trial, Edwin had been employed by the Lincoln Chamber of Commerce for 

5 months. In that position he received a salary of $40,000 per year with an estimate of an additional 

$7,000 per year in commissions. He also earned money from his band, his clothing business, and 

his contract work for an insurance company. His band performed three to four times each month. 

The court received Edwin’s 2016 tax return, which showed that he had total income of $47,937 

from his business ventures in 2016. Edwin had apparently filed for Chapter 7 bankruptcy in 

November 2017. The court received Edwin’s bankruptcy form 1061, which provided Edwin’s 

estimation that he would earn $4,030 from the insurance company, $12,700 from his band, and 

$14,964 from his clothing line in 2017. The court also received Edwin’s calculation of his child 

support obligation, which was based on him having a total monthly income of $6,839 and on 

DeLana having a total monthly income of $8,000.

Edwin purchased a Cadillac Escalade in November 2015, valued at about $50,000. His 

monthly payment on the vehicle was over $600. When he purchased the vehicle, he was more than 

$13,000 delinquent on his child support obligation. By the time of trial, he was $22,790 behind on 

his child support obligation. A contempt proceeding was initiated against him through which a 

purge plan was ordered. Although the purge plan had “expired” in the summer of 2016, Edwin had 

agreed to continue paying $450 per month above his child support obligation according to the plan 

until the conclusion of the modification trial.

(c) DeLana’s Testimony

DeLana had previously mediated disputes about the parenting plan at least twice. She did 

not continue mediating those disputes because she felt Edwin initiated proceedings too quickly. 

She testified that this modification trial was Edwin’s third attempt to receive custody of the 

children. She did not believe granting Edwin custody of their children would be in their best 

interests. DeLana felt that the current parenting plan was effective and that it was in the children’s 

best interests to maintain it.
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In the time that she has known Edwin, he had changed jobs often, which made her 

concerned about his ability to provide for the children. DeLana observed that Edwin’s band had 

performances more often since the entry of the divorce decree. Edwin was often absent from the 

children’s extracurricular activities. The court received DeLana’s notes recording which of the 

children’s events that Edwin had failed to attend or to which he arrived late since his last attempt 

to modify the decree. The number of events Edwin missed are too voluminous to recount here.

DeLana testified that as she understood the parenting plan, Edwin forfeited his parenting 

time whenever the children arrived to school tardy. As a result, when the children missed school 

because they were with Edwin in South Dakota and Colorado, Edwin forfeited his next scheduled 

parenting time. The parenting plan’s provision regarding tardiness from school had not always 

been strictly enforced. Since the provision had been enforced, however, the children had not had 

issues with arriving to school tardy. DeLana admitted that she had once taken the children out of 

school for a day for a vacation.

DeLana admitted that she allowed Vicente to quit basketball without consulting Edwin. 

She explained that Vicente had missed a large number of practices during Edwin’s parenting time, 

and as a result, the coach had not allowed Vicente to play on the team. Because the coach did not 

allow Vicente to play, Vicente did not want to be on the team, and DeLana allowed him to quit. 

DeLana also admitted to cursing at Edwin when he failed to take MariElena to her soccer game. 

She explained that she had left work early to attend the game and that MariElena was responsible 

for the team’s snacks. When DeLana arrived at the field, the coach asked her where her daughter 

was. DeLana could not remember the exact words she used during her conversation with Reyes on 

May 7, 2017, when he picked up the children on Edwin’s behalf. She did remember, however, that 

Reyes became very defensive after she asked to see his drivers’ license. DeLana claimed the 

children were not present during her conversation with Reyes and that Reyes is “a very good liar.”

She did not believe Reyes was a “good person,” and was concerned about him transporting her 

children.

DeLana denied that either Vicente or MariElena had participated in a foot race or that they 

ever swam at a swim meet. She had signed the children up for swimming lessons, and they tried 

out for a swim team, but the children did not wish to participate in it. She speculated that because 

they tried out for the team, their names may have been announced at a swim meet. Despite Edwin’s 

testimony to the contrary, DeLana claimed that she informed Edwin of Vicente’s participation on 

the basketball team in 2016. She admitted that she may have given Edwin schedules for the 

children’s extracurricular activities late on a few occasions, but she always informed him of their 

activities.

DeLana admitted that she had once failed to provide Edwin with the names of Vicente and 

MariElena’s doctors when he asked. The information had not changed, and DeLana believed he 

already had it. She agreed that she would provide Edwin with the children’s medical information 

in the future. DeLana also admitted to asking Vicente to convey parenting time information to 

Edwin “very few” times. She further admitted that she took the children to activities that began 

around the time that Edwin’s parenting time began so as to ensure the children actually attend the 

event. Edwin often did not respond when she asked him whether he was planning to take the 

children to these events. Edwin knew when these events were scheduled. Further, he had never 

told her that he expected to pick up the children from her house in spite of their extracurricular 
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activities. Moreover, the children regularly missed their extracurricular activities during Edwin’s 

parenting time.

DeLana admitted that she did not notify Edwin when Vicente participated in church 

services. She explained that she had little control over when Vicente participated in those services. 

The church bulletin had a schedule of when Vicente was scheduled to do certain activities in 

church. Vicente very much enjoyed those activities, and he often volunteered independently for 

them.

At the time of trial DeLana was the nursing director of the “Med/Surg and Pediatric Unit”

at a Lincoln hospital. She earned $44.54 per hour in this position and worked about 40 hours per 

week.

(d) Onuoha’s and Jones’ Testimony

Angelia Onuoha, a friend of Edwin’s family, testified that she had observed Edwin with 

his children and that he was a good father. Paulette Jones, Edwin’s mother, also testified that Edwin 

is a good father. She was unaware that Edwin was behind on his child support obligation, and she 

found his child support delinquency surprising considering the amount that he worked. From time 

to time, Jones had encountered DeLana in public places with her grandchildren. DeLana would 

not allow the children to approach their grandmother, and would promptly leave the location.

(e) Bunger’s, Martin’s, and Potter’s Testimony

Jamie Bunger, Vicente’s fifth grade teacher, testified that Vicente struggled academically 

at the beginning of the school year. Bunger made recommendations to DeLana about how to 

improve Vicente’s academic performance, which recommendations DeLana implemented. Bunger 

observed that Vicente’s behavior and academic progress changed based on whether he was in 

Edwin’s custody or DeLana’s custody. Bunger had more contact with DeLana than Edwin, and 

Edwin had missed the school year’s first parent-teacher conferences because he failed to schedule 

an appointment before the appointments had been filled. Dennis Martin, the children’s school 

principal, testified that his records reflected that the children had been tardy to school during 

Edwin’s parenting time. Edwin had never spoken with him about the children’s tardiness issues. 

Julie Potter, DeLana’s long-term friend and co-worker, testified that she attended many of the 

children’s extracurricular activities, some of which Edwin did not attend.

3. MODIFICATION ORDER AND SUBSEQUENT MOTIONS

The district court entered a detailed order on March 12, 2018, denying Edwin’s motion for 

modification and finding that DeLana was not in contempt of the decree’s parenting plan. The 

court specifically found DeLana’s testimony to be more credible than Edwin’s testimony. The 

court did not find fault in DeLana for asking Edwin to cooperate with the children’s extracurricular 

activities that were scheduled during his parenting time. Because DeLana testified that she would 

refrain from using Vicente to communicate information to Edwin in the future, the court did not 

find her in contempt of the parenting plan provision that prohibited the parties’ communication 

through the children. The court found Edwin’s choice to take the children out of state for band 

performances, funerals, and vacations without informing DeLana to be unacceptable, and the court 

emphasized the importance of school attendance. The court found that the record contained little 
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evidence of any change of circumstance, and insomuch as there was a change, that change favored 

reducing the amount of time and discretion Edwin had with his children. As a result, the court 

found that it was in the children’s best interests to remain in DeLana’s legal and physical custody.

Noting that Edwin’s employment at the Chamber of Commerce would likely reduce his 

income from his other businesses, the court attributed an income of $6,250 per month to him and 

$7,583 per month to DeLana. In view of the evidence of the parties’ increased incomes, the court 

increased Edwin’s monthly child support obligation to $1,115 for two children and $812 for one 

child. Lastly, given the lack of evidence of any change in circumstances and finding Edwin’s action 

to be more motivated by his financial concerns more than an actual desire to have custody, the 

court ordered Edwin to pay DeLana’s attorney’s fees in the sum of $8,205.50. In addressing the 

issue of fees, the court noted that a previous judge in 2015 found that “there was not one scintilla 

of evidence” presented by Edwin that would warrant a change in custody or parenting time from 

the time the decree was entered. The court concluded that the same was true in the present case.

Edwin filed a motion for a new trial and a motion to alter or amend the judgment, both of 

which the district court denied.

Edwin appeals.

III. ASSIGNMENTS OF ERROR

Edwin assigns, restated, that the district court erred in (1) failing to find DeLana in 

contempt for her failure to comply with numerous provisions of the parenting plan and (2) failing 

to find a material change in circumstances due to DeLana’s attempts to alienate the children from 

him, and (3) failing to award custody to him.

IV. STANDARD OF REVIEW

In a civil contempt proceeding where a party seeks remedial relief for an alleged violation 

of a court order, an appellate court employs a three-part standard of review in which the trial court’s 

(1) resolution of issues of law is reviewed de novo, (2) factual findings are reviewed for clear error, 

and (3) determinations of whether a party is in contempt and of the sanction to be imposed are 

reviewed for abuse of discretion. Welch v. Peery, 26 Neb. App. 966, 925 N.W.2d 375 (2019).

Child custody determinations are matters initially entrusted to the discretion of the trial 

court, and although reviewed de novo on the record, the trial court’s determination will normally 

be affirmed absent an abuse of discretion. Eric H. v. Ashley H., 302 Neb. 786, 925 N.W.2d 81 

(2019). A judicial abuse of discretion exists when a judge, within the effective limits of authorized 

judicial power, elects to act or refrain from acting, but the selected option results in a decision 

which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters 

submitted for disposition through a judicial system. Mansuetta v. Mansuetta, 295 Neb. 667, 890 

N.W.2d 485 (2017).

In child custody cases, where the credible evidence is in conflict on a material issue of fact, 

the appellate court considers, and may give weight to, the fact that the trial judge heard and 

observed the witnesses and accepted one version of the facts rather than another. Eric H., supra.
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V. ANALYSIS

1. DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DETERMINING

DELANA WAS NOT IN CONTEMPT OF PARENTING PLAN

Edwin assigns that the district court erred in failing to find DeLana in contempt for her 

failure to comply with numerous provisions of the parenting plan. Recounting much of his trial 

testimony, he argues that DeLana has “systematically” violated the parenting plan. We disagree.

When a party to an action fails to comply with a court order made for the benefit of the 

opposing party, such an act is ordinarily a civil contempt, which requires willful disobedience as 

an essential element. Schroeder v. Schroeder, 26 Neb. App. 227, 918 N.W.2d 323 (2018). 

“Willful” means the violation was committed intentionally, with knowledge that the act violated 

the court order. Id. Outside of statutory procedures imposing a different standard or an evidentiary 

presumption, all elements of contempt must be proved by the complainant by clear and convincing 

evidence. Id.

Edwin argues that DeLana violated the parenting plan by using disparaging language and 

name calling as well as by using Vicente to communicate with him. DeLana admitted to using 

Vicente to convey information to Edwin on a handful of occasions regarding Vicente’s sporting 

events. However, the record shows that DeLana primarily communicated with Edwin about the 

children and parenting time matters. We agree with the district court that DeLana is not in willful 

contempt of the parenting plan for the few times that she had Vicente communicate directly with 

Edwin. Although DeLana admitted to losing her temper with Edwin out of frustration, the record 

does not show that she used derogatory language with Edwin. While Reyes claims that DeLana 

demeaned Edwin in the children’s presence, DeLana denied that the children were nearby when 

she spoke with Reyes. The district court found DeLana’s testimony to be credible. We agree with 

the district court’s determination that, under these circumstances, Edwin failed to establish a 

violation of the parenting plan by DeLana.

Edwin argues that DeLana also violated the parenting plan by allowing his parenting time 

to be forfeited when he took the children out of school. He asserts that the forfeiture provision only 

applies to tardiness and not to absences for vacations and family emergencies. Although the 

provision only speaks to tardiness, the logical goal of the provision is to make sure Edwin brings 

the children to school during his parenting time. Clearly, the complete failure to ensure the 

children’s school attendance is of greater concern than tardiness. The record shows that Edwin did 

not communicate with DeLana regarding these school absences, and there is no evidence about 

whether he communicated directly with the school. Thus, we agree with the district court’s 

conclusion that DeLana was not in violation of the parenting plan for enforcing the forfeiture 

provision when Edwin failed to bring the children to school.

Edwin argues that DeLana violated the parenting plan by failing to discuss the children’s 

extracurricular activities with him, to give him notice of those activities, and to receive consent 

from him for those activities to take place during his parenting time.

The record does not support Edwin’s allegations that DeLana kept information regarding 

the children’s extracurricular activities from him. DeLana testified that she did provide Edwin with 

information about all of the children’s extracurricular activities. And even under Edwin’s account, 

DeLana generally provided him with information that, by exercising reasonable diligence, he could 
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have independently found scheduling information for the children’s extracurricular and religious 

activities. The district court specifically found that DeLana was more credible than Edwin, and we 

give that finding deference in our appellate review.

Although DeLana enrolled the children in activities that occurred during Edwin’s parenting 

time, the evidence shows that Edwin was aware of the schedule of these activities, yet he failed to 

voice any objection to them. Further, it appears that scheduling some of the activities during 

Edwin’s parenting time may have been unavoidable. Certainly, nothing prevented Edwin from 

attending and participating in these events during his parenting time. The parenting plan 

specifically recognizes the importance of extra-curricular activities for the children. The plan 

further requires that the children’s wishes and desires with regard to those activities be considered 

to be of “paramount importance,” and the parties are required to “insure, to the extent reasonably 

possible, that the minor children attend” their extracurricular activities. Thus, like the district court, 

we do “not find any fault with [DeLana] in asking [Edwin’s] cooperation in allowing [the children]

to participate” in these activities.

Edwin argues that DeLana violated the parenting plan by failing to provide the children’s 

medical information to him when he asked. Although DeLana admitted that she did not give Edwin 

the names of the children’s doctors on one occasion, she testified that she had given Edwin that 

information in the past. DeLana advised Edwin that their doctors’ names had not changed. Nothing 

prevented Edwin from obtaining the medical information on his own. Further, DeLana agreed to 

provide Edwin with the children’s medical information when he requests it in the future. Thus, we 

find that the district court did not abuse its discretion in determining that DeLana did not violate 

the parenting plan’s provisions concerning medical information.

After reviewing the district court’s factual findings for clear error, we conclude that the 

district court did not abuse its discretion in finding that DeLana was not in contempt for violating 

the parties’ parenting plan.

2. DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN

FINDING NO MATERIAL CHANGE IN CIRCUMSTANCES

Edwin assigns that the district court erred in failing to find a material change in 

circumstances due to DeLana’s attempts to alienate the children from him. We disagree.

Ordinarily, custody of a minor child will not be modified unless there has been a material 

change in circumstances showing that the custodial parent is unfit or that the best interests of the 

child require such action. First, the party seeking modification must show a material change in 

circumstances, occurring after the entry of the previous custody order and affecting the best 

interests of the child. Next, the party seeking modification must prove that changing the child’s 

custody is in the child’s best interests. Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695 (2017). 

A material change in circumstances means 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. Hall v. Hall, 26 Neb. App. 877, 924 N.W.2d 733 (2019).

Edwin essentially argues that DeLana’s “violations” of the parenting plan amount to a 

material change in circumstances that warrants a modification of custody. As we discussed above, 

we do not find that DeLana’s actions violated the parenting plan, and therefore, we likewise do 

not find the alleged violations support a modification of custody. The record contains very little 
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other evidence of changes of circumstances. While Edwin has moved closer to DeLana and the 

children’s school, he has not shown how this move makes him a more suitable parent for physical 

custody than DeLana. Edwin has provided no evidence that DeLana was an unfit parent or that the 

best interests of the children would favor placing them in his custody. Instead, the children are 

academically, socially, and spiritually thriving under DeLana’s care. Contrary to his assertion, 

Edwin has not shown that the children’s best interests are a priority for him in light of his 

substantial child support arrearage, his expenditure of time and resources on advancing his musical 

career, and his sporadic attendance at the children’s activities.

After a de novo review of the record, we agree with the district court’s factual findings, 

and we do not find them to be an abuse of discretion.

3. WE ARE NOT REQUIRED TO ANALYZE EDWIN’S 

REMAINING ASSIGNMENT OF ERROR

Because we find the record shows no material change in circumstances, we are not required 

to determine whether granting Edwin custody of Vicente and MariElena would be in their best 

interests.

VI. CONCLUSION

For the foregoing reasons, we conclude that the district court did not abuse its discretion in 

finding that DeLana was not in contempt of the decree of dissolution. We also conclude the district 

court did not abuse its discretion in finding no material change in circumstances that would warrant 

modifying the decree.

AFFIRMED.