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Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

PATERA v. PATERA

Cite as 24 Neb. App. 425

David Patera, appellant and cross-appellee

Jaime Patera, appellee and cross-appell

___ N.W.2d ___

Filed January 3, 2017. No. A-16-338.

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 to be imposed are reviewed 

for abuse of discretion.

2. Attorney Fees: Appeal and Error. When an attorney fee is authorized, 

the amount of the fee is addressed to the trial court’s discretion, and its 

ruling will not be disturbed on appeal absent an abuse of discretion.

3. Contempt. 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.

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

element of contempt; “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, the complainant in a civil contempt proceeding must prove all elements of contempt by clear and convincing evidence.

6. Contempt: Appeal and Error. An appellate court’s review of a district 

court’s finding of contempt is only for an abuse of discretion, not to 

determine whether the appellate court would have reached the same 

conclusion based on the facts presented.

7. Contempt: Costs: Attorney Fees. Costs, including reasonable attorney 

fees, can be awarded in a contempt proceeding.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Affi

Nebraska Supreme Court Online Library

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

01/03/2017 09:09 AM CST
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24 Nebraska Appellate Repor

PATERA v. PATERA

Cite as 24 Neb. App. 425

Amie C. Martinez, of Anderson, Creager & Wittstruck, P.C., 

L.L.O., for appellant.

Steven J. Flodman, of Johnson, Flodman, Guenzel & Widger, 

for appellee.

Inbody and Pirtle, Judges, and McCormack, Re

Justice.

McCormack, Retired Justi

I. INTRODUCTION

David Patera appeals from the order of the district court 

holding Jaime Patera in contempt for failing to follow the 

court-ordered parenting plan and allowing Jaime to purge the 

contempt by permitting David to spend an additional 7 days 

of parenting time with the couple’s daughter, Karissa Patera. 

David argues that the purge order should have required Jaime 

to let David spend time with both of the parties’ children, not 

just Karissa, and that the district court should have awarded 

David additional parenting time. David also argues that the 

district court erred in failing to order Jaime to pay the full 

amount of his attorney fees.

Jaime cross-appeals, arguing that the district court erred in 

finding her in contempt, because David gave her permission to 

deviate from the parenting plan.

Upon our review, we find no merit to either David’s or 

Jaime’s arguments, and we affirm the order of the district 

court.

II. BACKGROUND

David and Jaime are the divorced parents of Karissa and 

Joseph Patera. Jaime has primary physical custody of the children, subject to David’s parenting time. David is scheduled 

for parenting time with Karissa and Joseph from Thursday 

through Tuesday every other weekend. In the summer, David 

gets an additional 2 weeks with the children. The present 

dispute revolves around parenting time David missed with 

Karissa in July 2015.
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PATERA v. PATERA

Cite as 24 Neb. App. 425

In July 2015, Karissa attended a softball tournament and a 

church camp, both of which were out of state. Jaime did not 

dispute that Karissa’s attendance at these activities infringed 

upon David’s court-ordered parenting time. Following his 

missed parenting time due to Karissa’s tournament and camp, 

David filed an application for order to show cause why Jaime 

should not be held in contempt for failing to comply with the 

parenting plan. The court held a trial in the matter, at which 

both David and Jaime testified. At the end of the trial, David 

sought parenting time with both Karissa and Joseph for 9 days 

he claimed to have missed. He also asked to be awarded additional days of parenting time and attorney fees.

The district court found that Jaime had willfully violated 

the court-ordered parenting plan and held her in contempt. 

The court sentenced Jaime to 7 days’ incarceration. It further 

ordered that Jaime could purge the contempt by allowing 

David 1 week of uninterrupted parenting time with Karissa. 

Lastly, the court ordered Jaime to pay $250 of David’s attorney fees.

David filed a motion for new trial, arguing that the court’s 

order was insufficient. David argued that he should have been 

awarded at least 9 days of parenting time with both Karissa 

and Joseph for time he missed “with his family together as a 

whole.” David also argued that he should be entitled to additional parenting time beyond the time he missed and that Jaime 

should be required to pay more of his attorney fees. The district court overruled David’s motion for new trial.

David appeals and Jaime cross-appeals from the district 

court’s order finding Jaime in contempt and setting forth the 

terms by which Jaime could purge the contempt. Additional 

facts will be discussed, as necessary, in the analysis section below.

III. ASSIGNMENTS OF ERROR

David argues, restated, that the trial court erred in instituting a purge order that allowed David parenting time with just 

Karissa, not Joseph, and in not awarding David additional 
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PATERA v. PATERA

Cite as 24 Neb. App. 425

parenting time. David also argues that the district court erred 

in ordering Jaime to pay only $250 of David’s attorney fees, 

rather than the full amount he requested.

On cross-appeal, Jaime argues that the district court erred in 

finding her in contempt, because she relied on David’s consent 

in deviating from the parenting plan.

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 

error, and (3) determinations of whether a party is in contempt 

and of the sanction to be imposed are reviewed for abuse 

of discretion. Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 

549 (2016).

[2] When an attorney fee is authorized, the amount of the 

fee is addressed to the trial court’s discretion, and its ruling 

will not be disturbed on appeal absent an abuse of discretion. 

Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 

424 (2011).

V. ANALYSIS

We will first address Jaime’s argument on cross-appeal that 

the district court erred in finding her in contempt. If Jaime’s 

argument is meritorious, we need not reach David’s arguments 

regarding the purge order.

1. Cross-Appeal:

Finding of Cont

Jaime argues that the district court erred in finding her in 

contempt. Jaime asserts that she deviated from the parenting plan because David had consented to Karissa’s attending the softball tournament and church camp during his 

parenting time. Jaime therefore argues that her violation of 
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Cite as 24 Neb. App. 425

the parenting plan was not willful. We find no merit to this 

assignment of error.

[3-5] 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. Sickler, 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. Id. Outside of statutory procedures 

imposing a different standard or an evidentiary presumption, 

the complainant must prove all elements of contempt by clear 

and convincing evidence. Id.

The evidence presented at the contempt hearing showed 

that David and Jaime had discussed Karissa’s attendance at a 

softball tournament in Oklahoma during the latter part of July 

2015. The parties agreed that the tournament in question was 

during David’s parenting time. In particular, in April 2015, 

David wrote, “I am ok with you having them that weekend [of 

the tournament] if you will trade it for another weekend.”

The parties continued to discuss Karissa’s attendance at the 

tournament into mid-July 2015, but did not reach an agreement 

regarding when David would be compensated for his missed 

parenting time. On July 14, David e-mailed Jaime and asked 

for additional details regarding when Karissa was leaving for 

the Oklahoma softball tournament and when she would return. 

David also wrote that he was aware Karissa would be attending 

a church camp in Illinois during another period of his parenting 

time. David asked Jaime to contact him so they could “make 

a plan to cover this week [of the softball tournament] and to 

cover the week for Karissa’s church camp.”

On July 18, 2015, David e-mailed Jaime again regarding 

Karissa. David wrote that he had learned from a telephone 

conversation with Karissa that she was no longer attending the 

Oklahoma softball tournament, but was planning to attend a 

different tournament in Minnesota during the same period of 

time. David proposed a trade of days to compensate for his 
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PATERA v. PATERA

Cite as 24 Neb. App. 425

missed parenting time with Karissa during her attendance at 

the new softball tournament and the church camp. Later that 

day, David e-mailed Jaime again and stated, “If you will not 

trade the days for Karissa’s softball tournament then she is 

not going.”

On July 20, 2015, Jaime e-mailed David and offered 

to let him have Karissa and Joseph for 2 days, or to take 

them to dinner one night. It appears that this exchange did 

not occur, and Karissa attended the softball tournament and 

church camp.

On July 30, 2015, David e-mailed Jaime and requested 

additional parenting time with Karissa and Joseph for the time 

he claimed to have missed. David attached a timeline which 

indicated that he believed he lost 4 days of parenting time 

with Karissa due to the softball tournament and 3 days with 

Karissa due to the church camp. David also indicated he had 

missed 2 days with Karissa due to a ski trip, but no additional 

evidence of a ski trip was presented.

Jaime argues that the series of e-mail exchanges show that 

David consented to Karissa’s attending the softball tournament 

and church camp. Jaime argues that the situation is analogous 

to this court’s decision in Belitz v. Belitz, 21 Neb. App. 716, 

842 N.W.2d 613 (2014).

In Belitz, the district court declined to hold the mother in 

contempt for failing to return her child to the father after 

her summer parenting time. No specific date of return was 

contained in the court order and the mother and father had 

ongoing discussions regarding allowing the child to remain 

with the mother. Id. The mother also filed a motion to modify 

custody after failing to return the child and then complied with 

the ex parte order requiring her to return the child. Id. We 

affirmed the order of the district court declining to find the 

mother in contempt. Id.

Jaime points out that, just as in Belitz, she and David 

had ongoing discussions regarding trading days in order to 

allow Karissa to attend the softball tournament and church 
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Cite as 24 Neb. App. 425

camp. However, Jaime’s argument ignores important differences between Belitz and the present case. In Belitz, the district court declined to hold the mother in contempt based on 

the lack of a concrete return date, ongoing discussions about 

the child remaining with the mother, and the mother filing 

to modify custody and complying with the ex parte order to 

return the child. In contrast, here, the district court did find 

Jaime in contempt, a decision which we are reviewing only 

for an abuse of discretion. Although there were ongoing discussions regarding a trade of days between David and Jaime 

so Karissa could attend the tournament and camp, no agreement was ever reached. Furthermore, Jaime was aware that 

David was missing his scheduled parenting time and that he 

requested a trade of days in order for Karissa to attend the 

events in question.

[6] As stated above, our review is only to determine whether 

the district court’s finding of contempt was an abuse of discretion, not whether we would have reached the same conclusion 

based on the facts presented. See Sickler v. Sickler, 293 Neb. 

521, 878 N.W.2d 549 (2016). The evidence supports the district 

court’s determination that Jaime’s denial of David’s parenting 

time was, in fact, willful. Despite the fact that Belitz, supra, 

also involved ongoing discussions between the parents about 

changing the parenting time schedule, that case is distinguishable on both its facts and its procedural posture. Given the 

e-mail communications and Jaime’s awareness that David did 

not intend to relinquish his scheduled parenting time without 

arranging to trade days, we cannot conclude that the district 

court’s finding of contempt was an abuse of discretion. Jaime’s 

cross-appeal is without merit.

2. David’s Appe

Given our determination that the district court did not err in 

finding Jaime to be in contempt, we turn now to David’s arguments regarding the adequacy of the remedy imposed and the 

amount of attorney fees he was awarded.
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PATERA v. PATERA

Cite as 24 Neb. App. 425

(a) Purge Order

David argues that the district court erred in ordering David 

to have parenting time with Karissa alone, rather than with 

Karissa and Joseph together, and in not allowing David additional parenting time as part of the purge order. David does 

not challenge the court’s factual finding that he was deprived 

of 7 days of parenting time with Karissa. Rather, David argues 

that when he was deprived of parenting time with Karissa, 

he missed out on time with his family as a whole, including 

Karissa’s spending time with Joseph and with David’s children from his current marriage. David also argues that the 

court should have awarded him more parenting time than he 

actually missed with Karissa because such additional parenting time would coerce Jaime into complying with the parenting plan in the future. We find no merit to this assignment 

of error.

The district court determined, and David does not contest, 

that David missed 7 total days of parenting time with Karissa 

only. In fact, David’s own evidence, the timeline he e-mailed 

to Jaime in late July 2015, supports the court’s determination 

that David lost 7 days with Karissa due to her attendance at 

the softball tournament and church camp. Given that the court 

compensated David for the amount of parenting time he actually missed with Karissa, we cannot say that its decision not 

to impose additional parenting time or to order parenting time 

with Joseph was an abuse of discretion.

(b) Attorney Fees

Lastly, David argues that the district court erred in ordering Jaime to pay only $250 of his attorney fees. David argues 

that Jaime should be ordered to pay the full amount of his 

requested attorney fees, $2,500. We find no merit to this 

assignment of error.

[7] Costs, including reasonable attorney fees, can be 

awarded in a contempt proceeding. Smeal Fire Apparatus 

Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010), 
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disapproved on other grounds, Hossaini v. Vaelizadeh, 283 

Neb. 369, 808 N.W.2d 867 (2012).

At trial, David claimed he had missed 9 days of parenting 

time with both Karissa and Joseph. The court ultimately determined that David had missed only 7 days of parenting time 

with Karissa, not Joseph, and that David was not entitled to 

additional parenting time, as discussed above. Given this finding only partially in David’s favor, the court’s partial award of 

attorney fees to David was reasonable.

VI. CONCLUSION

The district court did not err in finding Jaime to be in contempt of the court-ordered parenting plan. Furthermore, the 

court did not err in ordering that Jaime could purge the contempt by allowing David 7 days of parenting time with Karissa 

or in ordering Jaime to pay $250 of David’s attorney fees.

Affirmed