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STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 26 Neb. App. 421

State of Nebraska on behalf of Kaaden

a minor child, appellee, v. Jeffery 

appellant, and Mandy S., appe

___ N.W.2d ___

Filed October 16, 2018. No. A-17-1210.

1. Paternity: Appeal and Error. In a filiation proceeding, questions concerning child custody determinations are reviewed on appeal de novo on 

the record to determine whether there has been an abuse of discretion 

by the trial court, whose judgment will be upheld in the absence of an 

abuse of discretion. In such de novo review, when the evidence is in 

conflict, the appellate court considers, and may give weight to, the fact 

that the trial court heard and observed the witnesses and accepted one 

version of the facts rather than another.

2. Minors: Names: Appeal and Error. An appellate court reviews a trial 

court’s decision concerning a requested change in the surname of a 

minor de novo on the record and reaches a conclusion independent of 

the findings of the trial court.

3. 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.

4. Paternity: Attorney Fees: Appeal and Error. In a paternity action, 

attorney fees are reviewed de novo on the record to determine whether 

there has been an abuse of discretion by the trial judge, and absent such 

an abuse, the award will be affirmed.

5. Modification of Decree: Divorce: Child Custody. If trial evidence 

establishes a joint physical custody arrangement, courts will so construe 

it, regardless of how prior decrees or court orders have characterized 

the arrangement.

Nebraska Supreme Court Online Library

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

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6. Child Custody. The amount of time children spend with each parent is 

less important than how the time is allocated when determining whether 

joint physical custody exists.

7. Child Custody: Appeal and Error. 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.

8. Child Custody. Joint physical custody should be reserved for those 

cases where, in the judgment of the trial court, the parents are of such 

maturity that the arrangement will not operate to allow the child to 

manipulate the parents or confuse the child’s sense of direction, and will 

provide a stable atmosphere for the child to adjust, rather than perpetuating turmoil or custodial wars.

9. Child Custody: Evidence. When considering joint custody, the focus 

is on the parents’ ability to communicate with each other and resolve 

issues together.

10. Evidence: Appeal and Error. Where 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 court heard and observed the witnesses 

and accepted one version of the facts rather than another.

11. Child Support: Rules of the Supreme Court: Appeal and Error. The 

Nebraska Child Support Guidelines, specifically Neb. Ct. R. § 4-215(B) 

(rev. 2011), estimate $480 as an ordinary amount of nonreimbursed 

medical expenses, and that figure is then subsumed within the amount 

of child support that is ordered.

12. Minors: Names. The question of whether the name of a minor child 

should be changed is determined by what is in the best interests of 

the child.

13. Minors: Names: Proof. The party seeking the change in surname 

has the burden of proving that the change in surname is in the child’s 

best interests.

14. Minors: Names. In Nebraska, there is no preference for a surname—

paternal or maternal—in name change cases; rather, the child’s best 

interests is the sole consideration.

15. ____: ____. Nonexclusive factors to consider in determining whether a 

change of surname is in a child’s best interests are (1) misconduct by 

one of the child’s parents; (2) a parent’s failure to support the child; 

(3) parental failure to maintain contact with the child; (4) the length of 

time that a surname has been used for or by the child; (5) whether the 

child’s surname is different from the surname of the child’s custodial 

parent; (6) a child’s reasonable preference for one of the surnames; (7) 

the effect of the change of the child’s surname on the preservation and 
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development of the child’s relationship with each parent; (8) the degree 

of community respect associated with the child’s present surname and 

the proposed surname; (9) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and (10) the identification of the child as a part of a 

family unit.

16. Contempt: Sentences. A civil sanction is coercive and remedial; the 

contemnors carry the keys of their jail cells in their own pockets, 

because the sentence is conditioned upon continued noncompliance and 

is subject to mitigation through compliance.

17. Criminal Law: Contempt: Sentences. A criminal sanction is punitive; 

the sentence is determinate and unconditional, and the contemnors do 

not carry the keys to their jail cells in their own pockets.

18. Contempt. In order for the punishment 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.

19. ____. A fine is an appropriate sanction in a civil contempt proceeding 

so long as the contemnor may avoid the fine by complying with the 

court’s order.

20. ____. An unconditional fine is not an appropriate sanction in a civil 

contempt proceeding because the contemnor is unable to avoid the fine 

through his or her conduct.

Appeal from the District Court for Jefferson County: Ric

A. Schreiner, Judge. Affirmed in part, vacated in part, and

part reversed and remanded with directions.

Ronald R. Brackle for appellant.

Angelica W. McClure, of Kotik & McClure Law, for appellee Mandy S.

Pirtle, Riedmann, and Welch, Ju

Riedmann, Jud

INTRODUCTION

Jeffery T. appeals the order of the district court for 

Jefferson County which awarded custody, parenting time, and 

child support regarding the minor child Jeffery shares with 

Mandy S. The court also held Mandy in contempt of court 
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and imposed a fine of $50. For the reasons that follow, we 

affirm in part, vacate in part, and in part reverse and remand 

with directions.

BACKGROUND

Jeffery and Mandy are the parents of a minor child, Kaaden 

S., born in June 2014. They were never married and did not 

have a relationship prior to conception of the child. Jeffery 

was present at the hospital on the day Kaaden was born, but he 

claims that Mandy would not allow him to be part of Kaaden’s 

life after that time and repeatedly insisted that he was not 

Kaaden’s father. On the other hand, Mandy alleges that she 

notified Jeffery when she learned she was pregnant but that 

he refused to be involved other than attending one medical 

appointment and Kaaden’s birth.

In August 2014, Jeffery contacted an attorney with the 

Nebraska Department of Health and Human Services in order 

to commence the present paternity action. Thus, the State filed 

a complaint on February 17, 2015, asking the court to establish 

paternity of Kaaden and order child support. Jeffery filed a 

cross-claim requesting that the court enter a custody order and 

change Kaaden’s last name from Mandy’s surname to Jeffery’s 

surname. Genetic testing subsequently confirmed that Jeffery 

was Kaaden’s biological father.

During the pendency of this action, Jeffery continued to 

have difficulty visiting Kaaden. In October 2015, Mandy 

began allowing Jeffery to have supervised visits with Kaaden 

for 11⁄2 hours per week. At some point in 2015, Jeffery began 

paying voluntary child support to Mandy. In June 2016, the 

district court entered a temporary order ordering Jeffery to 

pay $694 per month in child support and awarding him supervised visitation for 60 days. After the initial 60 days, Mandy 

was to have primary physical custody and Jeffery received 

unsupervised parenting time every other weekend from Friday 

at 6 p.m. until Sunday at 6 p.m. and each Wednesday from 

5 until 7 p.m. Despite the temporary order, Mandy refused 
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to allow Jeffery to have overnight visits with Kaaden, and at 

some point, she terminated Jeffery’s Wednesday evening visits 

as well.

Around the time Jeffery’s contact with Kaaden increased, 

Kaaden began exhibiting escalating behavior problems, such 

that Mandy began taking him to see a counselor in November 

2016. The counselor initially diagnosed Kaaden with “separation trauma and extreme anxiety,” but testified at trial that 

Kaaden experienced significant growth during the 5 months 

that she worked with him. She also opined that Mandy had 

“significant unresolved issues” toward Jeffery and recommended that Mandy participate in treatment to address her 

emotional trauma. The counselor believed, as of the time of 

trial, that it was best for Kaaden that contact between Jeffery 

and Mandy be limited.

At the same time Kaaden’s behavior began changing, the 

already tense relationship between Jeffery and Mandy also 

started to deteriorate. On November 30, 2016, Jeffery audio 

recorded an exchange with Mandy when he was returning 

Kaaden from a visit. During the exchange, Mandy can be heard 

yelling at Jeffery and belittling his attempts at building a relationship with Kaaden. Mandy made clear that she did not want 

Jeffery in Kaaden’s life and believed Jeffery’s efforts at being 

a father to Kaaden were harmful to the child. At the conclusion 

of the recording, Mandy sprayed Jeffery in the face with pepper spray and apparently called the police on him. Jeffery was 

met at his residence by two sheriff’s deputies, but after Jeffery 

played the recording for them, they did not arrest him. At trial, 

Mandy acknowledged that after the November 2016 incident, 

she did not try to communicate with Jeffery about Kaaden and 

said that it became even more difficult for the two of them to 

communicate at all.

In January 2017, Jeffery filed a motion to hold Mandy in 

contempt of court for denying him the parenting time awarded 

in the temporary order and refusing to provide him with 

Kaaden’s medical information. Trial on the issues of custody, 
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parenting time, child support, and the contempt motion was 

held on May 9. At trial, Jeffery explained that he was requesting primary physical custody of Kaaden, and he believed that 

such an arrangement would be in Kaaden’s best interests. He 

testified that if awarded custody, he would support Kaaden’s 

relationship with Mandy and adhere to any visitation order the 

court imposed.

The evidence established that throughout the case, Mandy 

would allow Jeffery some daytime visits with Kaaden, but she 

permitted only two weekends of overnight visitation, both of 

which occurred in April 2017. The evidence additionally established that after the November 2016 recorded incident, she 

refused to allow Jeffery to see Kaaden again until December 

24 and 31, and further denied him the extended overnight 

holiday visits allocated to him in the temporary order. Mandy 

admitted that she did not adhere to the temporary order, but 

she said that she denied overnight visits because Kaaden was 

scared and not ready for them and that she was following the 

recommendations of Kaaden’s therapist. During the pendency 

of the matter, the parties attempted mediation twice, but were 

unsuccessful in reaching an agreement. Mandy admitted that 

she refused to even sit in the same room as Jeffery at both 

mediation sessions.

After trial, the district court entered an order on custody, parenting time, child support, and contempt. The court observed 

that Mandy loves Kaaden but that she wants nothing to do 

with Jeffery, nor does she want Kaaden to have anything to 

do with Jeffery. The court recognized that Jeffery complained 

that Mandy intentionally withheld his parenting time from 

him and was openly hostile during exchanges of Kaaden. The 

court cited the November 2016 exchange as an example of 

Mandy’s hostility toward Jeffery, noting that Mandy “launched 

into a vulgar and accusatory tirade directed at Jeffery before 

spraying him in the face with pepper spray.” The district 

court found that Mandy had been Kaaden’s primary caregiver 

since birth, but the fact that she has had more time to parent 
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Kaaden and may have developed a stronger relationship with 

him appears entirely due to her absolute unwillingness to 

allow Jeffery to be involved in Kaaden’s life. Nonetheless, 

the court determined that in the limited time Jeffery has had 

with Kaaden, he has managed to form a relationship and bond 

with Kaaden and parents him appropriately. The court found 

that although Kaaden “fusses” during exchanges with Jeffery, 

Kaaden appears to adjust well once in Jeffery’s care, and that 

both parents adequately provide for Kaaden’s welfare and 

appear concerned with his continued development.

The district court concluded that Jeffery was a fit and proper 

person to have custody of Kaaden, but that the complicating 

factor in this case is the lack of a relationship between Jeffery 

and Mandy, as well as Mandy’s “obvious resentment” toward 

Jeffery and the situation. The court found that Mandy appears 

to do everything she can to limit or monitor Jeffery and 

Kaaden’s relationship and has done everything in her power to 

prevent Jeffery from being a father to Kaaden. Although it is 

obvious that Mandy loves Kaaden, the court observed that her 

anger toward Jeffery “clouds her judgment” regarding what is 

in Kaaden’s best interests at times, especially when it comes to 

allowing Jeffery to be involved in Kaaden’s life.

The district court appointed a guardian ad litem (GAL) in 

April 2017, and in its order, the court found that the GAL’s 

report was thorough and well-reasoned. The court observed 

the GAL reported that Mandy’s obstructive behavior continued 

after trial and that it was her opinion those behaviors were 

detrimental to Kaaden’s well-being. The court observed that 

the GAL recommended placing primary custody of Kaaden 

with Jeffery and that she felt “‘completely confident’” in that 

recommendation.

The district court iterated that during the pendency of this 

matter, it attempted to encourage Mandy “to see past her hurt, 

fear, and anger” and allow Kaaden to have Jeffery in his life, 

but it appeared that her behavior had not changed and that she 

was still placing “more value on her hate and anger than she 
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[was] on Kaaden’s ability to have a father actively engaged in 

his life.”

Based on the foregoing and with the “firm belief that doing 

so best ensures compliance with the order of custody so that 

Kaaden can enjoy the full benefits of having both parents 

involved in his life to the greatest degree possible,” the court 

concluded that it was in Kaaden’s best interests to place his 

primary legal and physical custody with Jeffery subject to 

liberal parenting time with Mandy. The parties were therefore 

awarded alternating weekly parenting time. The court utilized 

the joint physical custody worksheet and ordered Jeffery to pay 

child support of $93 per month and the first $480 of Kaaden’s 

nonreimbursed health care costs. The court’s order did not specifically deny Jeffery’s request to change Kaaden’s last name, 

but the order states that any request for relief by any party not 

specifically granted by the order was denied. The district court 

also found Mandy in willful contempt of the court’s temporary 

order and imposed a fine of $50.

Thereafter, Jeffery filed a motion to alter or amend, which 

the court denied. Jeffery timely appeals to this court.

ASSIGNMENTS OF ERROR

Jeffery assigns that the district court erred in (1) awarding 

in substance joint physical custody; (2) ordering him to pay 

child support, using the joint custody worksheet, and ordering him to pay the first $480 of Kaaden’s health care costs; 

(3) failing to order Mandy to pay child support; (4) failing 

to change Kaaden’s last name; (5) failing to fine Mandy in a 

greater amount for her contempt of court; and (6) refusing to 

award him attorney fees.

STANDARD OF REVIEW

[1] In a filiation proceeding, questions concerning child 

custody determinations are reviewed on appeal de novo on 

the record to determine whether there has been an abuse of 

discretion by the trial court, whose judgment will be upheld in 

the absence of an abuse of discretion. In such de novo review, 
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when the evidence is in conflict, the appellate court considers, 

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

observed the witnesses and accepted one version of the facts 

rather than another. Derby v. Martinez, 24 Neb. App. 17, 879 

N.W.2d 58 (2016).

[2] An appellate court reviews a trial court’s decision concerning a requested change in the surname of a minor de novo 

on the record and reaches a conclusion independent of the findings of the trial court. State on behalf of Connor H. v. Blake G., 

289 Neb. 246, 856 N.W.2d 295 (2014).

[3] 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. State on behalf of Mariah B. & Renee B. v. 

Kyle B., 298 Neb. 759, 906 N.W.2d 17 (2018).

[4] In a paternity action, attorney fees are reviewed de novo 

on the record to determine whether there has been an abuse of 

discretion by the trial judge. Drew on behalf of Reed v. Reed, 

16 Neb. App. 905, 755 N.W.2d 420 (2008). Absent such an 

abuse, the award will be affirmed. Id.

ANALYSIS

Joint Physical Cust

Jeffery first argues that the court abused its discretion in 

essentially awarding joint physical custody. We agree and 

determine that even though the district court stated that it 

was awarding primary physical custody to Jeffery, the court 

awarded de facto joint physical custody. We additionally conclude that an award of joint physical custody was an abuse 

of discretion given our de novo review of the record and the 

court’s factual findings. We therefore reverse that portion of 

the court’s order and remand the cause for a modification of 
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Mandy’s parenting time consistent with an award of primary 

physical custody to Jeffery.

[5] If trial evidence establishes a joint physical custody 

arrangement, courts will so construe it, regardless of how prior 

decrees or court orders have characterized the arrangement. 

Hill v. Hill, 20 Neb. App. 528, 827 N.W.2d 304 (2013). “Joint 

physical custody means mutual authority and responsibility 

of the parents regarding the child’s place of residence and the 

exertion of continuous blocks of parenting time by both parents 

over the child for significant periods of time.” Neb. Rev. Stat. 

§ 43-2922(12) (Reissue 2016).

[6] In Hill v. Hill, supra, this court outlined several cases 

discussing how to distinguish joint physical custody from sole 

physical custody with liberal parenting time. We observed that 

Nebraska case law establishes that the amount of time children 

spend with each parent is less important than how the time 

is allocated when determining whether joint physical custody 

exists. Id. We recognized that joint physical custody has been 

defined as joint responsibility for minor day-to-day decisions 

and the exertion of continuous physical custody by both parents 

for significant periods of time. Id., citing Elsome v. Elsome, 

257 Neb. 889, 601 N.W.2d 537 (1999). We noted that this type 

of arrangement is distinguishable from that where one parent 

enjoys liberal parenting time such as alternating weekends, one 

overnight visit per week, one additional overnight visit on the 

off weekends, and additional breaks and holidays. See, Hill v. 

Hill, supra; Drew on behalf of Reed v. Reed, supra. In Hill, we 

concluded that the physical custody arrangement amounted to 

joint physical custody where the children lived day in and day 

out with both parents on a rotating basis, and each parent was 

equally responsible for the physical and emotional demands of 

the children’s day-to-day care.

The same is true in the present case. Despite the district 

court’s characterization of the arrangement, Jeffery and Mandy 

are each responsible for the day-to-day care of Kaaden during the week they are exercising their parenting time. This is 
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the standard joint physical custody arrangement. Each parent 

is equally responsible for getting Kaaden to and from childcare while the parents are working and for handling his daily 

emotional demands. As a result, the arrangement in this case 

is properly characterized as joint physical custody, rather than 

primary custody with liberal parenting time. Even Mandy 

concedes in her brief that “[w]hile the court referred to the 

arrangement in this case as sole custody, the time allotted 

meets the statutory definition of joint custody because each 

party has equal continuous blocks of parenting time with 

the child.” Brief for appellee at 18. We must now determine 

whether an award of joint physical custody was an abuse of the 

court’s discretion.

[7-9] 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. 

Erin W. v. Charissa W., 297 Neb. 143, 897 N.W.2d 858 (2017). 

Joint physical custody should be reserved for those cases 

where, in the judgment of the trial court, the parents are of 

such maturity that the arrangement will not operate to allow 

the child to manipulate the parents or confuse the child’s sense 

of direction, and will provide a stable atmosphere for the child 

to adjust, rather than perpetuating turmoil or custodial wars. 

Id. When considering joint custody, the focus is on the parents’ ability to communicate with each other and resolve issues 

together. Aguilar v. Schulte, 22 Neb. App. 80, 848 N.W.2d 

644 (2014).

In the instant case, the district court found that Jeffery 

was a fit and proper person to have custody of Kaaden. The 

court observed that Jeffery has a suitable residence and stable 

employment and that he encourages healthy behaviors with 

Kaaden. The court also recognized Mandy’s resentment toward 

Jeffery and found that “she has done everything in her power 

to prevent Jeffery from being a father to Kaaden.” The court 

found that the GAL issued a thorough and well-reasoned 
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report, which reported that Mandy’s “obstructive behavior” 

continued and was “detrimental to Kaaden’s emotional wellbeing.” Thus, the GAL recommended awarding primary physical custody of Kaaden to Jeffery and felt “completely confident” in that recommendation.

The district court iterated that it “tried to encourage Mandy 

to see past her hurt, fear, and anger” and allow Kaaden to 

have Jeffery in his life, but Mandy did not heed the court’s 

advice as it “appears she is still putting more value on her 

hate and anger than she is on Kaaden’s ability to have a father 

actively engaged in his life and the benefits of that relationship.” Therefore, when considering all of the evidence and 

circumstances of this case, including Mandy’s defiance of 

the temporary order, so that Kaaden can enjoy the full benefits of having both parents involved in his life to the greatest degree possible, the district court concluded that it was 

in Kaaden’s best interests to place his primary legal and 

physical custody with Jeffery subject to liberal parenting time 

with Mandy.

[10] We consider and give weight to the district court’s factual findings and concerns, which are well-founded and supported by the record. Where 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 court heard and observed 

the witnesses and accepted one version of the facts rather 

than another. Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 

(2014). Notwithstanding the temporary order awarding Jeffery 

overnight parenting time with Kaaden every other weekend 

and alternating Wednesday evenings, Mandy refused to allow 

Jeffery his allotted parenting time. She also refused to provide 

Jeffery with Kaaden’s medical information despite his numerous requests. The parties attempted mediation on two separate 

occasions, but Mandy refused to even sit in the same room as 

Jeffery on each occasion. And her anger and hatred of Jeffery 

is evident in the recorded exchange. She made clear that she 

did not want Jeffery to be part of Kaaden’s life and that she 
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believed his desire to exercise his parenting time was harming Kaaden.

The undisputed evidence also establishes that Jeffery and 

Mandy have virtually no ability to communicate with each 

other regarding Kaaden. Mandy acknowledged at trial that it 

has become more difficult for them to communicate at all, and 

she did not believe they could communicate well enough to 

make joint custody successful. Kaaden’s counselor believed it 

was best for Kaaden that contact between Jeffery and Mandy 

be limited at that time. And the district court’s order reports 

that the GAL was concerned that “[Mandy] and her mother 

feed off one another in their loathing of Jeffery and are unable 

to give him credit for anything he does right when it comes 

to Kaaden.”

Therefore, considering the foregoing, the evidence and the 

district court’s factual findings do not support a conclusion that 

joint physical custody is in Kaaden’s best interests. To the contrary, the district court determined that it was in Kaaden’s best 

interests to place his legal and physical custody with Jeffery, 

and we find that decision was not an abuse of discretion. 

Accordingly, we reverse the parenting plan ordered in this case, 

and remand the cause to the district court for implementation 

of a parenting time arrangement whereby Jeffery has primary 

physical custody subject to Mandy’s parenting time.

Child Support a

Health Care Expen

Given our conclusion that the district court abused its discretion in awarding de facto joint physical custody, we also find 

that the court’s use of the joint custody worksheet in order to 

calculate child support was in error. We therefore reverse the 

child support award and remand the cause for recalculation 

using the appropriate worksheet.

[11] Likewise, we reverse the requirement that Jeffery pay 

the first $480 of Kaaden’s nonreimbursed health care costs. 

Children’s health care expenses are specifically included in 
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the guidelines amount of up to $480 per child per year. See 

Neb. Ct. R. § 4-215(B) (rev. 2011). As such, the guidelines 

estimate $480 as an ordinary amount of such nonreimbursed 

medical expenses, and that figure is then subsumed within 

the amount of child support that is ordered. State on behalf 

of Martinez v. Martinez-Ibarra, 281 Neb. 547, 797 N.W.2d 

222 (2011). All nonreimbursed health care costs in excess of 

$480 per child per year shall be allocated to the obligor parent. § 4-215(B). Thus, we reverse this portion of the order, 

and upon recalculation of child support, the district court shall 

also allocate nonreimbursed health care costs in excess of 

$480 accordingly.

Name Chang

Jeffery assigns that the district court erred in denying his 

request to change Kaaden’s name from Mandy’s last name to 

Jeffery’s last name. We find no merit to this argument.

[12,13] The question of whether the name of a minor child 

should be changed is determined by what is in the best interests 

of the child. State on behalf of Connor H. v. Blake G., 289 Neb. 

246, 856 N.W.2d 295 (2014). The party seeking the change in 

surname has the burden of proving that the change in surname 

is in the child’s best interests. Id. Cases considering this question have granted a change of name only when the substantial 

welfare of the child requires the name to be changed. Id. On 

appeal, a trial court’s decision is reviewed de novo on the 

record. See id.

[14,15] In Nebraska, there is no preference for a surname—

paternal or maternal—in name change cases; rather, the child’s 

best interests is the sole consideration. Id. Courts review a list 

of nonexclusive factors to determine whether a change of surname is in the child’s best interests. Id. These factors include 

(1) misconduct by one of the child’s parents; (2) a parent’s 

failure to support the child; (3) parental failure to maintain 

contact with the child; (4) the length of time that a surname 

has been used for or by the child; (5) whether the child’s 
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surname is different from the surname of the child’s custodial 

parent; (6) a child’s reasonable preference for one of the surnames; (7) the effect of the change of the child’s surname on 

the preservation and development of the child’s relationship 

with each parent; (8) the degree of community respect associated with the child’s present surname and the proposed surname; (9) the difficulties, harassment, or embarrassment that 

the child may experience from bearing the present or proposed 

surname; and (10) the identification of the child as a part of a 

family unit. Id.

In the present case, the district court’s order did not consider 

any of the foregoing factors or make a finding of Kaaden’s 

best interests with respect to his surname. Upon our de novo 

review of the record, we observe that there was little evidence 

presented at trial as to changing Kaaden’s name. Jeffery indicated that he wanted Kaaden to share his last name, and we 

note that Jeffery is now the custodial parent. Mandy testified 

that she did not want Kaaden’s name to be changed, but she 

did not further elaborate. At not quite 3 years old, Kaaden was 

too young to express a preference or to appreciate a change in 

his surname. Neither parent is married nor has any other children, so there is no concern as to whether Kaaden will share a 

name as part of a family unit. There was no evidence as to how 

changing Kaaden’s surname from Mandy’s to Jeffery’s would 

serve Kaaden’s best interests. Therefore, based on the totality 

of the evidence, we conclude that Jeffery failed to establish 

that the substantial welfare of the child requires the name to 

be changed. Accordingly, we affirm the decision of the district 

court denying Jeffery’s request.

Contempt of Cour

Jeffery argues that the fine imposed on Mandy for being 

in contempt of court was an abuse of discretion. We disagree 

with Jeffery’s argument that the court should have imposed 

a fine greater than $50, but we find plain error in the fine 

as imposed.
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STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 26 Neb. App. 421

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. State on behalf of 

Mariah B. & Renee B. v. Kyle B., 298 Neb. 759, 906 N.W.2d 

17 (2018).

The district court determined that the clear and convincing 

evidence established that Mandy was in willful contempt of 

the temporary order when she deprived Jeffery of his parenting time. The court therefore imposed a sanction of $50. 

There is no challenge on appeal to the finding that Mandy was 

in contempt of court; rather, the sole issue is whether the court 

abused its discretion in imposing a sanction of $50.

[16-18] A civil sanction is coercive and remedial; the contemnors carry the keys of their jail cells in their own pockets, 

because the sentence is conditioned upon continued noncompliance and is subject to mitigation through compliance. 

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

In contrast, a criminal sanction is punitive; the sentence is 

determinate and unconditional, and the contemnors do not 

carry the keys to their jail cells in their own pockets. Id. 

A court can impose criminal, or punitive, sanctions only if 

the proceedings afford the protections offered in a criminal 

proceeding. Id. A criminal or punitive sanction is invalid if 

imposed in a proceeding that is instituted and tried as civil 

contempt, because it lacks the procedural protections that the 

Constitution would demand in a criminal proceeding. Sickler 

v. Sickler, supra. In order for the punishment 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. Id.
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26 Nebraska Appellate Repor

STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 26 Neb. App. 421

In Maddux v. Maddux, 239 Neb. 239, 475 N.W.2d 524 

(1991), overruled on other grounds, Smeal Fire Apparatus Co. 

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

Nebraska Supreme Court found plain error in the trial court’s 

imposition of a punitive sanction in a civil contempt proceeding. Specifically, the trial court held the father in contempt for 

failure to pay child support. The court ordered that unless the 

father paid the amount due, he was sentenced to 30 days in jail 

commencing April 1, 1989. The Supreme Court determined 

that the order ceased to be coercive on April 1, because the 

jail sentence was no longer subject to mitigation. If the child 

support amounts due were not paid by April 1, the father was 

required to serve a punitive 30-day sentence, regardless of 

whether the amounts were paid subsequent to that date, and 

thus, the father no longer would be “‘holding the keys to his 

jail cell’” after April 1. Id. at 242, 475 N.W.2d at 528. The 

Supreme Court iterated that an unconditional penalty is criminal in nature because it is solely and exclusively punitive in 

character. Id.

[19,20] Relying upon Maddux v. Maddux, supra, this court 

has recognized that a fine is an appropriate sanction in a civil 

contempt proceeding so long as the contemnor may avoid the 

fine by complying with the court’s order. See Jessen v. Jessen, 

5 Neb. App. 914, 567 N.W.2d 612 (1997), overruled on other 

grounds, Smeal Fire Apparatus Co. v. Kreikemeier, supra. In 

contrast, an unconditional fine is not an appropriate sanction in 

a civil contempt proceeding because the contemnor is unable to 

avoid the fine through his or her conduct. Id.

In the present case, the district court imposed an unconditional fine upon Mandy. The court provided no method 

for Mandy to avoid the fine through her conduct, and thus, 

the sanction was punitive rather than coercive. Because the 

matter was tried as a civil contempt, a solely punitive sanction was improper. We therefore vacate the punitive sanction 

and remand the cause for imposition of a proper coercive 

sanction.
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STATE ON BEHALF OF KAADEN S. v. JEFFERY T.

Cite as 26 Neb. App. 421

Attorney F

Jeffery asserts that the district court’s denial of his request 

for attorney fees was in error. We find no abuse of discretion.

In a paternity action, attorney fees are reviewed de novo on 

the record to determine whether there has been an abuse of 

discretion by the trial judge. Drew on behalf of Reed v. Reed, 

16 Neb. App. 905, 755 N.W.2d 420 (2008). Absent such an 

abuse, the award will be affirmed. Id.

The district court ordered that each party pay its own attorney fees and costs. We understand Jeffery’s argument that 

Mandy’s actions resulted in his incurring additional attorney 

fees which he otherwise would not have incurred. However, 

given the financial circumstances of the parties, we find that it 

was not an abuse of discretion for the court to order the parties 

to pay their own fees and costs.

CONCLUSION

We affirm in part, vacate in part, and in part reverse and 

remand with directions as explained above.

 Affirmed in part, vacated in part, and 

reversed and remanded with direct