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BRAUN v. BRAUN

Cite as 306 Neb. 890

Jennifer J. Braun, appellee, v. 

Corey L. Braun, appellant.

___ N.W.2d ___

Filed August 21, 2020. No. S-19-880.

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 (1) 

the trial court’s resolution of issues of law is reviewed de novo, (2) the 

trial court’s factual findings are reviewed for clear error, and (3) the trial 

court’s determinations of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion.

2. Divorce: Judgments: Appeal and Error. The meaning of a divorce 

decree presents a question of law, in connection with which an appellate 

court reaches a conclusion independent of the determination reached by 

the court below.

3. Parties: Jurisdiction. If necessary parties to a proceeding are absent, 

the district court has no jurisdiction to determine the controversy.

4. Parties: Words and Phrases. An indispensable party is one whose 

interest in the subject matter of the controversy is such that the controversy cannot be finally adjudicated without affecting the indispensable 

party’s interest, or which is such that not to address the interest of the 

indispensable party would leave the controversy in such a condition 

that its final determination may be wholly inconsistent with equity and 

good conscience.

5. Divorce: Property Settlement Agreements: Final Orders. A decree is 

a judgment, and once a decree for dissolution becomes final, its meaning, including the settlement agreement incorporated therein, is determined as a matter of law from the four corners of the decree itself.

6. Contempt: Words and Phrases. Willful disobedience is an essential 

element of civil contempt; “willful” means the violation was committed 

intentionally, with knowledge that the act violated the court order.

7. Words and Phrases: Appeal and Error. Willfulness is a factual determination to be reviewed for clear error.

Nebraska Supreme Court Online Library

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

09/18/2020 08:06 AM CDT
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BRAUN v. BRAUN

Cite as 306 Neb. 890

8. Contempt. In a civil contempt proceeding, for the sanction to retain its 

civil character, the contemnor must, at the time the sanction is imposed, 

have the ability to purge the contempt by compliance and either avert 

punishment or, at any time, bring it to an end.

9. Contempt: Sentences. The sanction in a civil contempt proceeding is 

both remedial and coercive, and when a jail sentence is imposed as a 

sanction, the contemnor must carry the keys to their jail cells in their 

own pocket.

10. ____: ____. A jail sanction in a civil contempt proceeding is conditioned 

upon the contemnor’s continued noncompliance with the court order, 

and the purge plan must allow the contemnor to mitigate or avoid the 

sanction through compliance.

Appeal from the District Court for Sheridan County: Travis 

P. O’Gorman, Judge. Affirmed.

Sterling T. Huff, P.C., L.L.O, for appellant.

Jennifer J. Braun, pro se.

On brief, Andrew W. Snyder, of Chaloupka, Holyoke, 

Snyder, Chaloupka & Longoria, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

Corey L. Braun appeals from an order finding him in willful 

contempt of court for failing to hold his ex-wife, Jennifer J. 

Braun, harmless from joint mortgage debt on the marital home 

Corey was awarded in the decree. As a sanction, the court 

imposed a delayed jail sentence and a purge plan that allowed 

Corey to purge himself of contempt by either refinancing the 

mortgage in his own name by a date certain or selling the property. Finding no error, we affirm.

I. BACKGROUND

Corey and Jennifer were married in 2005. A child was born 

to the marriage in 2007, and in 2012, Jennifer filed for divorce. 

In the dissolution proceeding, the parties generally agreed on 
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Cite as 306 Neb. 890

the equitable division of their assets and debts; a trial was 

held on all remaining issues.

1. Divorce Decree

In February 2013, the court entered a decree dissolving 

the marriage. As relevant to the issues on appeal, the parties’ 

marital home in Gordon, Nebraska, was valued at $112,000. 

The home was awarded to Corey by agreement of the parties, 

subject to the existing mortgage debt. The decree generally 

ordered each party to be responsible for the debts associated 

with the property they were awarded and to hold the other 

harmless from such debt. As relevant to the issues on appeal, 

the decree provided: “Debts: [Corey] agrees to hold [Jennifer] 

harmless from any debt associated with the property he has 

been awarded, including payment of attorneys fees should any 

contempt action arise from his failure to hold her harmless of 

these debts.”

2. Contempt Proceedings

On January 11, 2019, Jennifer filed what she captioned a 

“Complaint to Modify and for Contempt.” This pleading alleged 

that Corey had willfully failed to hold her harmless from the 

mortgage debt on the home, and it asked that he be held in 

contempt of court. The pleading also sought to hold Corey in 

contempt of court for failing to pay court-ordered childcare 

expenses, and it requested a modification of Corey’s child support obligation due to a material change in circumstances.

The court set trial on all matters for May 1, 2019. Both 

parties appeared with counsel and offered evidence. We summarize only that evidence pertaining to the hold harmless provision, as no error has been assigned to the trial court’s rulings 

on child support or childcare expenses.

(a) Jennifer’s Testimony

Jennifer testified that after the decree was entered, she 

signed a quitclaim deed on the home, but her name was still 
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Cite as 306 Neb. 890

on the mortgage note. Jennifer admitted she had not been 

required to make any mortgage payments on the home since 

the decree was entered, but she testified that Corey had failed 

to remain current on the mortgage and that his failure was 

adversely affecting her finances. She explained that she had 

received late notices and foreclosure notices from the mortgage 

company and that her credit report showed she was delinquent 

on the home mortgage.

Jennifer testified her credit score had historically been 

around 780 or 800, and in the summer of 2018 she had an 

application for a credit card rejected, which had not happened 

before. She checked her credit score and learned it had fallen to 

620 or 640, despite the fact she was current on the only debts 

she had. She also testified she was unable to qualify for a loan 

to purchase a home because of her current credit score.

Jennifer testified she had repeatedly asked Corey to refinance the mortgage in his own name, but he told her he was 

not able to qualify for refinancing due to his previous bankruptcies and his low credit score. According to Jennifer, the 

mortgage company had not yet foreclosed on the home, but 

Corey had been “dancing around foreclosure.” Jennifer testified the mortgage company had “set up multiple payment plans 

with him, he makes a couple payments, and then he stops making payments, and then he calls in and they make new payment 

arrangements, he’ll make a couple payments, and then he fails. 

It’s a cycle.”

Jennifer believed the only way to protect her finances from 

Corey’s chronic failure to keep the mortgage debt current 

was to get her name off the mortgage altogether. She asked 

that Corey be ordered to refinance the home in his name only 

and that if he was not able to refinance, he be ordered to sell 

the home.

(b) Corey’s Testimony

Corey testified the balance on the mortgage note was close 

to $70,000, and he agreed that Jennifer remained obligated on 

that note. He testified that about a year earlier, he attempted 
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to refinance the mortgage on the home but was unable to get 

a loan because of his credit score. He had not attempted to 

refinance recently, because his credit score had not improved.

Corey estimated the current value of the home was around 

$120,000 to $150,000, and he agreed he would be able to 

sell the home for more than is owed on the mortgage. Corey 

admitted that since 2018, he had been behind on the mortgage 

payments, but stated that a few months before trial he had 

arranged a new payment plan and was current on payments 

under that new plan. He testified the mortgage was still in 

arrears by about $4,900.

Corey did not want to sell the home, but he did not think 

it was possible for him to refinance the mortgage debt immediately. He testified he had obtained a good-paying job and 

expected to be able to keep making payments under the new 

payment plan, and he was hopeful that he could refinance the 

home “sooner [rather] than later.”

Corey admitted the decree required him to hold Jennifer 

harmless from any debt associated with the home. And he generally understood the hold harmless provision meant that no 

harm should come to Jennifer as a result of the debts he was 

ordered to pay, including harm related to a reduction in her 

credit rating. But Corey generally testified that he did not think 

his delinquency on the mortgage had harmed Jennifer.

3. Trial Court’s Order

On May 16, 2019, the trial court entered an order ruling 

on all pending matters. As relevant to the contempt issues on 

appeal, the court expressly found that Corey had consistently 

failed to keep the mortgage current and that his conduct had 

resulted in financial damage to Jennifer in the form of damage 

to her credit.

The court described the “more difficult” question as whether 

Corey’s conduct amounted to a violation of the hold harmless provision in the decree. The court framed the question 

as whether financial harm or injury, such as damage to one’s 

credit, is the type of harm that falls within the scope of a 
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standard hold harmless provision in a divorce decree where 

one party has been ordered to assume responsibility for a joint 

debt. The court noted it had located no reported decisions 

in Nebraska addressing the issue, but that other jurisdictions 

have held that a hold harmless provision includes protection 

from financial injury such as damage to credit. The court discussed two cases in particular: Long v. McAllister-Long 1 and 

Eaton v. Grau.

 2

In Long, the wife sought to hold her former husband in 

contempt of court for violating a provision in the decree 

requiring him “to hold [the wife] harmless” from the joint 

mortgage debt and other joint debts. 3 The wife alleged the 

husband’s failure to make timely payments had a harmful 

effect on her credit rating. The Tennessee appellate court 

considered the plain language and broad purpose of the hold 

harmless provision, and concluded it was intended to operate 

as both indemnity against liability and indemnity against loss. 

It therefore concluded the hold harmless provision “required 

[the husband] to pay these debts in a timely manner in order to 

prevent [the wife] from being harmed,” and it reasoned “risking adverse effects on her credit rating” was a type of harm 

that was to be prevented. 4

In Eaton, the parties’ stipulated divorce decree awarded the 

marital home to the husband and made him solely responsible 

for paying the joint mortgage debt. 5 The decree included a hold 

harmless provision which ordered the husband to “‘indemnify 

and hold the Wife harmless from any and all further obligations from ownership of the property,’” but it did not require 

the husband to refinance in his own name. 6 The wife later 

1 Long v. McAllister-Long, 221 S.W.3d 1 (Tenn. App. 2006).

2 Eaton v. Grau, 368 N.J. Super. 215, 845 A.2d 707 (2004).

3 Long, supra note 1, 221 S.W.3d at 6.

4 Id. at 12.

5 Eaton, supra note 2.

6 Id. at 219, 845 A.2d at 710 (emphasis omitted).
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moved to modify the decree to require the husband to either 

refinance the mortgage or sell the home, alleging he had failed 

to keep the mortgage current and foreclosure proceedings had 

damaged her credit rating. The trial court denied her modification request, reasoning that although a hold harmless provision 

could be broad enough to protect against damage to credit 

scores, the language of the provision selected by the parties 

was narrow and only encompassed protection from “‘further 

obligations.’” 7 On appeal, the New Jersey appellate court 

affirmed, reasoning that even if it assumed the hold harmless 

provision protected against financial harm to the wife’s credit 

rating, she had failed to prove she sustained such injury and 

thus had not shown exceptional circumstances as would entitle 

her to modification of the decree.

In the instant case, the trial court found the plain language 

of the hold harmless provision in the decree was not materially 

different from that considered in Long, and it concluded:

Corey’s obligation [under the hold harmless provision] 

plainly extends beyond making mortgage payments so 

that Jennifer does not become obligated to make payments herself; it also requires Corey to fulfill the parties’ 

joint obligations under the mortgage so as to prevent 

other fiscal injury that might foreseeably befall Jennifer, 

such as the kind of damage to her credit that could result 

from payments that are chronically late.

The court found Corey in willful contempt of court “for 

failing to make timely payments on the mortgage he was 

ordered to pay” because such conduct “failed to hold Jennifer 

harmless on that debt which has resulted in severe damage to 

[her] credit rating.” It sentenced Corey to serve 10 days in jail, 

commencing on September 3, 2019 (approximately 4 months 

in the future), and it preapproved work release so that Corey 

could “continue to work and pay his bills.” Finally, the court’s 

order provided that Corey could purge himself of contempt and 

avoid the jail sentence if, on or before September 3, 2019, he 

7 Id.
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refinanced or sold the home “so further damage to Jennifer’s 

credit does not occur.”

Corey timely appealed, and we moved the case to our docket 

on our own motion.

II. ASSIGNMENTS OF ERROR

Corey assigns, summarized, that the trial court erred in 

determining his conduct violated the hold harmless provision 

and in ordering that he either refinance the mortgage or sell 

the home.

III. 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 (1) the 

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

the trial court’s factual findings are reviewed for clear error, 

and (3) the trial court’s determinations of whether a party is in 

contempt and of the sanction to be imposed are reviewed for 

abuse of discretion. 8

[2] The meaning of a divorce decree presents a question 

of law, in connection with which an appellate court reaches 

a conclusion independent of the determination reached by the 

court below. 9

IV. ANALYSIS

1. Mortgage Company Not 

Indispensable Party

Before considering the merits of Corey’s assignment of 

error, we quickly dispense of a preliminary jurisdictional issue 

he raised in his brief. Corey suggests the contempt order 

affected the rights of the mortgage company, thereby making 

8 State on behalf of Mariah B. & Renee B. v. Kyle B., 298 Neb. 759, 906 

N.W.2d 17 (2018).

9 Bayne v. Bayne, 302 Neb. 858, 925 N.W.2d 687 (2019).
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the mortgage company an indispensable party to the contempt 

proceedings. He argues that because the mortgage company 

was not made a party, both the trial court and this court lack 

jurisdiction.

[3] If necessary parties to a proceeding are absent, the district court has no jurisdiction to determine the controversy. 10

But there is no merit to Corey’s suggestion that the mortgage 

company was an indispensable party to the contempt proceedings here.

[4] An indispensable party is one whose interest in the subject matter of the controversy is such that the controversy cannot be finally adjudicated without affecting the indispensable 

party’s interest, or which is such that not to address the interest 

of the indispensable party would leave the controversy in such 

a condition that its final determination may be wholly inconsistent with equity and good conscience. 11 Here, the mortgage 

company’s interests and rights are not affected, changed, or 

modified by final adjudication of the contempt controversy in 

this case, and the mortgage company’s presence as a party was 

not necessary either to resolve whether Corey was in contempt 

or to fashion an appropriate remedy in the event he was found 

in contempt. The mortgage company was not an indispensable 

party to the contempt proceedings, and Corey’s argument to the 

contrary is meritless.

2. No Abuse of Discretion in 

Contempt Determination 

or Purge Plan

Corey’s single assignment of error is broadly drafted, and 

we understand it to be challenging both the trial court’s determination that he was in contempt and its determination of the 

sanction to be imposed. We review both such determinations 

10 American Nat. Bank v. Medved, 281 Neb. 799, 801 N.W.2d 230 (2011).

11 Pan v. IOC Realty Specialist, 301 Neb. 256, 918 N.W.2d 273 (2018).
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for an abuse of discretion. 12 But first, we address a legal question concerning the meaning of the hold harmless provision.

(a) Hold Harmless Provision

[5] A decree is a judgment, and once a decree for dissolution 

becomes final, its meaning, including the settlement agreement 

incorporated therein, is determined as a matter of law from the 

four corners of the decree itself. 13 Because the meaning of the 

hold harmless provision in the decree presents a question of 

law, we must reach a conclusion independent of the determination reached by the trial court. 14

In this case, neither party contends the hold harmless provision is ambiguous, and we agree it is not. Nor do the parties 

necessarily disagree with the trial court’s interpretation of the 

scope and meaning of the hold harmless agreement. We review 

that interpretation here, however, because this court has not yet 

addressed the scope of a standard hold harmless provision in a 

divorce decree.

The issue is not one which has generated much disagreement among courts to have considered it. Generally speaking, 

courts agree the scope of a hold harmless provision in a dissolution decree should be determined based on its plain language. 15 While some language can limit the scope of the hold 

harmless provision, 16 language that broadly requires one party 

to assume responsibility for a joint debt and hold the other 

harmless from the debt generally obligates the one responsible 

12 See State on behalf of Mariah B. & Renee B., supra note 8.

13 Gomez v. Gomez, 303 Neb. 539, 930 N.W.2d 515 (2019).

14 See Bayne, supra note 9.

15 See, e.g., Flanagan v. duMont, 203 Vt. 503, 159 A.3d 99 (2016); Gardner 

v. Gardner, 294 P.3d 600 (Utah App. 2012); Long, supra note 1; Eaton, 

supra note 2.

16 See, e.g., Flanagan, supra note 15, 203 Vt. at 506, 159 A.3d at 101 

(finding provision in decree requiring husband to indemnify and hold wife 

harmless “‘against the payment of any monies’” did not obligate husband 

until wife made payment).
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for the debt to prevent financial harm to the other resulting 

from late or delinquent payments on the debt, including damage to the other’s credit rating. 17

Here, the plain language of the decree contained no limiting language, and it ordered Corey to pay the joint mortgage 

debt and to “hold [Jennifer] harmless from any debt associated 

with the property.” We therefore agree with the trial court that 

the plain language of the hold harmless provision in this case 

required Corey to protect Jennifer from financial harm or damage related to the joint mortgage debt on the home, including 

harm to her credit rating resulting from Corey’s failure to pay 

the debt as ordered. 18

(b) Contempt Determination

Corey does not dispute the court’s factual findings that he 

was significantly behind on the monthly mortgage payments. 

He does, however, argue “there was no evidence at trial that 

[his] actions had actually harmed” Jennifer. 19 We understand 

this to suggest the evidence did not support the trial court’s 

factual finding that Corey’s late mortgage payments resulted 

in financial damage to Jennifer’s credit rating. And we reject 

this suggestion, as there was ample support for this finding in 

the record.

Jennifer testified that her credit rating had historically been 

780 to 800 and that in the summer of 2018, she learned it had 

fallen to 620 or 640. She attributed the drop solely to the fact 

17 See, e.g., Gardner, supra note 15, 294 P.3d at 602 (provision in divorce 

decree ordering wife to “‘assume and pay and hold [husband] harmless 

from’” mortgage debt required wife to protect against financial harm such 

as damage to husband’s credit resulting from chronically late payments); 

Long, supra note 1; Eaton, supra note 2.

18 Accord Dennis v. Dennis, 6 Neb. App. 461, 574 N.W.2d 189 (1998) 

(finding former husband violated hold harmless agreement by failing 

to pay on joint mortgage and wife suffered financial harm when family 

loaned her money to avoid foreclosure).

19 Brief for appellant at 7.
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that Corey was chronically delinquent on the joint mortgage, 

reasoning she was current on all debts she held in her own 

name. We find no clear error in the trial court’s factual finding 

that Corey’s chronic delinquency on the joint mortgage harmed 

Jennifer’s credit rating.

The only other argument Corey directs to the court’s determination of contempt is a statement in his reply brief that this 

is “a case of first impression.” 20 We understand this to be a 

suggestion that at the time Corey was failing to make payments 

on the mortgage debt, the scope of his responsibility under the 

hold harmless provision was not clear, and so his violation of 

that provision should not have been found to be willful.

[6,7] Willful disobedience is an essential element of civil 

contempt, and in this context, “willful” means the violation 

was committed intentionally, with knowledge that the act violated the court order. 21 Willfulness is a factual determination to 

be reviewed for clear error. 22

Corey does not claim he did not know or did not fully 

understand what he was required to do under the terms of the 

decree and the hold harmless provision. In fact, he specifically 

testified to his understanding in that regard during the trial:

Q Do you agree the hold harmless provision of your 

decree of dissolution means that no harm should come to 

Jennifer as a result of debts you were ordered to pay?

A That’s how I understand it, yes.

Q And you agree that, among other things, lowering 

her credit score would be a harm that would be — have 

come to her?

A Yes.

Given the plain language of the hold harmless provision as 

discussed above and Corey’s admitted understanding of the 

scope of his responsibility under that provision, we find no 

20 Reply brief for appellant at 9.

21 Krejci v. Krejci, 304 Neb. 302, 934 N.W.2d 179 (2019).

22 State on behalf of Mariah B. & Renee B., supra note 8.
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clear error in the trial court’s finding that Corey willfully violated the hold harmless provision by being chronically delinquent on the mortgage debt. And to the extent Corey’s assignment of error can fairly be understood to challenge the court’s 

determination of contempt, we find no abuse of discretion.

(c) Sanction Determination

Corey assigns it was error for the trial court to “require[] 

[him] to refinance [the] mortgage or sell the property.” The 

only argument he presents in this regard is the suggestion 

that “[b]y requiring [Corey] to refinance or sell, the Court 

modified the Decree on its own with no request from a party 

of interest and with no evidence regarding a material change of 

circumstances not contemplated at the time of the divorce.” 23

Corey’s argument misunderstands the nature of the court’s 

determination.

This was a civil contempt proceeding in which Jennifer 

sought remedial relief for Corey’s violation of the hold harmless provision in the decree. 24 The trial court found Corey had 

violated the provision and, as a sanction, ordered him to serve 

10 days in jail.

[8-10] In a civil contempt proceeding, for the sanction to 

retain its civil character, the contemnor must, at the time the 

sanction is imposed, have the ability to purge the contempt 

by compliance and either avert punishment or, at any time, 

bring it to an end. 25 The sanction in a civil contempt proceeding is both remedial and coercive, and when a jail sentence 

is imposed as a sanction, the contemnor must carry the keys 

to their jail cells in their own pocket. 26 In other words, a jail 

sanction in a civil contempt proceeding is conditioned upon 

the contemnor’s continued noncompliance with the court order, 

23 Brief for appellant at 7.

24 See Krejci, supra note 21.

25 Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016).

26 See id.
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and the purge plan must allow the contemnor to mitigate or 

avoid the sanction through compliance. 27

Here, Corey has not challenged the 10-day jail sanction 

imposed by the court, and to the extent he challenges the purge 

plan directing him either to refinance the mortgage in his own 

name or to sell the home, we find no abuse of discretion. This 

portion of the order allows Corey, through compliance with 

the hold harmless provision, to purge himself of contempt and 

avoid serving the 10-day jail sentence imposed as a sanction. 

The order was not a modification of the decree, as Corey suggests. The sanction imposed was both remedial and coercive in 

nature, and it was not an abuse of discretion.

V. CONCLUSION

Finding no clear error in the court’s factual findings and no 

abuse of discretion in either the court’s determination of contempt or the imposition of the sanction in this case, we affirm 

the district court’s order.

Affirmed.

27 See id.