- 759 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

State of Nebraska on behalf of Mariah B. and

Renee B., minor children, appellee, 

v. Kyle B., appellant.

___ N.W.2d ___

Filed January 26, 2018. No. S-16-1142.

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. Contempt: Due Process: Judgments: Appeal and Error. Though the 

ability to pay the purge amount in a civil contempt proceeding is a factual question that is reviewed for clear error, whether the facts result in 

a due process violation is a question of law.

3. Contempt: Words and Phrases. Civil contempt requires willful disobedience as an essential element. “Willful” means the violation was 

committed intentionally, with knowledge that the act violated the 

court order.

4. Contempt. If it is impossible to comply with the order of the court, the 

failure to comply is not willful.

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

6. Contempt: Proof: Evidence: Presumptions. Outside of statutory procedures imposing a different standard, it is the complainant’s burden 

to prove civil contempt by clear and convincing evidence and without 

any presumptions.

7. Contempt: Presumptions: Child Support. Neb. Rev. Stat. § 42-358(3) 

(Reissue 2016) provides that a rebuttable presumption of contempt shall 

be established if a prima facie showing is made that court-ordered child 

or spousal support is delinquent.

Nebraska Supreme Court Online Library

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

03/23/2018 01:14 AM CDT
- 760 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

8. ____: ____: ____. Necessarily, the rebuttable presumption of contempt 

provided by Neb. Rev. Stat. § 42-358(3) (Reissue 2016) encompasses 

the essential element of willfulness.

9. Contempt: Evidence: Child Support. In contempt proceedings, both 

Neb. Rev. Stat. § 42-358(3) (Reissue 2016) and logic dictate that a valid 

child support order is evidence of the parent’s ability to pay the amount 

specified therein.

10. Child Support. The parent’s ability to pay is an important consideration in setting the amount of a child support order.

11. Child Support: Rules of the Supreme Court: Presumptions. Child 

support established under the Nebraska Child Support Guidelines is 

presumed correct, unless one or both parties present sufficient evidence 

to rebut that presumption.

12. Trial: Witnesses: Evidence. Triers of fact have the right to test the 

credibility of witnesses by their self-interest and to weigh it against the 

evidence, or the lack thereof.

13. Constitutional Law: Criminal Law: Contempt: Due Process. 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.

14. Contempt: Sentences. A present inability to comply with a contempt 

order is a defense, not necessarily to contempt, but to the sanction of 

incarceration.

15. Contempt: Judgments. When a purge order involves payment of 

money, the sum required to purge oneself of contempt must be within 

the contemnor’s ability to pay within the time period provided in the 

order, taking into consideration the assets and financial condition of the 

contemnor and his or her ability to raise money.

16. Contempt. Contemnors in civil contempt must carry the keys of their 

jail cells in their own pockets.

17. Contempt: Presumptions: Child Support. The statutory presumption 

of contempt under Neb. Rev. Stat. § 42-358(3) (Reissue 2016) is inapplicable to the question of whether the purge plan is punitive.

18. Contempt: Judgments. Despite any overlap with the finding of willful 

disobedience in the underlying contempt, a court that imposes incarceration as part of civil contempt proceedings shall make express findings 

regarding the contemnor’s ability to comply with the purge order.

19. Contempt: Proof. It is the contemnor who has the burden to assert and 

prove the inability to comply with the contempt order as a defense to 

incarceration.
- 761 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

20. ____: ____. The burden of both production and persuasion is on the 

contemnor to show the present inability to comply.

21. ____: ____. A showing of inability to comply with a purge order 

entails attempts to exhaust all resources and assets or borrow sufficient 

funds and the inability to thereby secure the funds to comply with 

the order.

22. Contempt. The contemnor’s inability to comply with a contempt order 

cannot be voluntarily created, for example by not diligently seeking a 

job at one’s earning potential.

23. ____. The inability-to-pay threshold for determining that the contemnor 

lacks the keys to his or her own jail cell is higher than the indigence 

threshold for appointing counsel. Thus, a finding of indigency for 

purposes of retaining legal counsel does not preclude a finding that 

the contemnor is able to pay whatever purge amount has been set by 

the court.

24. Child Support. The support of one’s children is a fundamental obligation which takes precedence over almost everything else.

Appeal from the District Court for Lancaster County: Kevin

R. McManaman, Judge. Affirmed.

Nancy R. Wynner, of Olson, Zalewski & Wynner, L.L.P., 

for appellant.

Joe Kelly, Lancaster County Attorney, and Jason M. Cooper 

and Braden W. Storer, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and

Funke, JJ.

Heavican, C.J.

NATURE OF CASE

A father appeals from an order of civil contempt for failure to pay child support. He was found indigent for purposes 

of appointment of counsel in the contempt proceedings. He 

asserts that he did not willfully disobey the support order. 

Further, he argues that the purge plan set forth in the contempt 

order is impossible to perform, making it a punitive rather than 

coercive sanction. We affirm.
- 762 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

BACKGROUND

Paternity and Child

Support Order

In a paternity action filed by the State due to the involvement of the “Title IV-D Division”1

 of the Department of 

Health and Human Services (DHHS), Kyle B. was established 

as the father of Mariah B. and Renee B. Genetic testing had 

determined with a probability of 99.999 percent that Kyle was 

the biological father of the children.

Kyle was ordered to pay $230 in child support per month 

beginning on December 1, 2015. The amount of Kyle’s monthly 

child support obligation was established in accordance with the 

child support guidelines. The district court referee calculated 

that Kyle was capable of earning $8 per hour and of working 40 hours per week, for a total monthly earning capacity 

of $1,387. By failing to respond to the State’s request for 

admissions, Kyle was deemed to have admitted this earning 

potential. Attached to the referee’s report was evidence that 

Kyle had earned $4,306.90 working at a roofing company from 

October to December 2014 and had earned $3,578.62 working 

there from July to September 2014.

Kyle did not attend the hearing at which evidence was 

submitted pertaining to paternity and child support, and his 

counsel withdrew. Kyle did not appeal from the child support order.

Contempt Order

On June 7, 2016, the court issued an order for Kyle to 

appear at a hearing scheduled for July 7 and show cause why 

he should not be in contempt for willfully failing to comply 

with the December 2015 order. The order to appear required 

Kyle to bring to the hearing his income tax returns for the 

past 3 years, as well as his last three wage statements. Kyle 

was appointed counsel on July 8, 2016, upon a finding of 

1 Neb. Rev. Stat. § 43-3341(12) (Reissue 2016).
- 763 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

indigency. On September 12, the court issued another order to 

appear, at a hearing scheduled for November 2, on the order to 

show cause.

Kyle appeared at the November 2, 2016, hearing, represented by his appointed counsel. At the hearing, the State 

introduced a certified copy of a history of Kyle’s payments 

to DHHS. The document demonstrated that Kyle had never 

made payments on the December 2015 order and that he was 

$2,551.59 in arrears.

Kyle did not submit income tax returns, wage statements, 

or any other financial documentation. The only evidence presented by Kyle at the hearing was his own testimony. Kyle testified that he was unemployed. Kyle stated that his “last good 

job” was working as a “roof loader” for the roofing company. 

That job ended in November 2015 when he was laid off for 

the winter.

Kyle testified that he had been applying for three jobs per 

week for the past 2 months, as required by a workforce development program he was participating in. The most recent jobs 

he applied for were at a supermarket, a home improvement 

store, and a discount department store. Kyle explained that he 

had not applied for work at a fast food restaurant or for other 

food service work, because he was still “trying to get [his] 

food handler’s permit to go that route.”

Kyle refused to describe how many and what jobs he had 

applied for in the approximately 10-month period between the 

November 2015 layoff and beginning the workforce development program. After repeated evasiveness on Kyle’s part, the 

court instructed him to “calm[] down” and “listen carefully” 

to the State’s questions. But Kyle still refused to describe in 

detail his search for employment, stating, “I’m not gonna sit 

here and just keep beating around the bush about I’m not trying to get a job or this or that.”

Kyle stated that he had done some subcontracting work 

since being laid off at the roofing company. He did not say 

how long he had worked as a subcontractor, nor how much he 

had earned.
- 764 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

Kyle indicated that he had not pursued more subcontracting work because he was disabled. Kyle testified that he had a 

“third grade reading and writing disability” and “a back problem and a neck problem” related to a fall out of a tree in 2005. 

Kyle testified that he had applied for disability benefits the day 

before the hearing.

Kyle testified that he paid $506 per month for rent and utilities. He spent an unknown amount on cigarettes. He also had a 

third child, a 6-month-old daughter, to support.

Kyle explained that he had not paid child support for Mariah 

and Renee because he was struggling financially. Kyle elaborated that during the times that he was employed as a subcontractor, it was not “that much money or that much work.” 

What money he had made “[p]robably” went toward his rent 

and utilities. Beyond Kyle’s odd jobs, the mother of Kyle’s 

6-month-old daughter had been paying their rent, utilities, and 

other expenses with her Social Security income. That relationship had recently ended, however, and Kyle testified that he 

had “no money” at the time of the hearing.

Kyle did not clearly indicate whether he had applied for or 

received unemployment benefits at any point since he was laid 

off in November 2015. He testified that he was not receiving 

any assistance at the time of the hearing.

Kyle expressed that the amount of the support order was 

too high. Kyle indicated that the amount of the support order 

may have been set too high because he had failed to attend the 

paternity hearing in December 2015. He claimed he had missed 

the hearing because he did not receive the paperwork informing him of the court date. Though Kyle claimed he had since 

brought the amount of the child support order to the court’s 

attention two or three times, there is no evidence that Kyle 

moved for modification of the order.

Kyle did not deny being aware of the December 2015 child 

support order as of its effective date. He specifically acknowledged that he was aware of the child support order, though his 

testimony was imprecise as to when. He said:
- 765 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

Well, I think the first time that I was aware that I was 

starting to pay child support, the guy who was representing me did not give me the paperwork to where I was 

supposed to make the payment to the child support, this 

and that. I don’t know. It’s my first time going through 

this stuff. I got reading and writing and disability problems myself. I’ve just been trying to figure out — it’s 

been set at such a high — such high — like 200-whatever 

dollars, and I’ve been telling them that it’s been hard for 

me to afford to pay my own bills and to still be able to 

afford to pay the child support.

Kyle did not assert that ignorance of the order was the reason 

for his failure to pay child support.

The court found Kyle in willful contempt of the December 

2015 order. In its written contempt order, the court specifically 

found that during the period applicable to the contempt citation, Kyle had the ability to pay the support ordered. Pursuant 

to the contempt order, Kyle was committed to 60 days’ jail 

time, to be suspended as long as he paid to the clerk of the 

court “$230.00 a month on current child support and $100.00 

[a month] on arrearage, commencing January 1, 2017.” In the 

event that Kyle complied with this payment schedule for 18 

months, he would be purged of contempt. In the event commitment was issued as a result of noncompliance, he would be 

released and purged of contempt upon payment of $1,000. The 

court did not set forth an explicit finding that Kyle was at that 

time able to pay the purge amount. Nor does the record reflect 

that the court pronounced its order in Kyle’s presence.

Kyle timely appeals the contempt order.

ASSIGNMENTS OF ERROR

Kyle assigns that the district court abused its discretion in 

(1) finding him in civil contempt; (2) imposing an unreasonable, arbitrary, capricious, and punitive sanction; and (3) setting for the purge plan payment amounts that were impossible 

to perform.
- 766 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

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.2

[2] Though the ability to pay the purge amount is a factual 

question that we review for clear error, whether the facts result 

in a due process violation is a question of law.3

ANALYSIS

Kyle appeals from a contempt order imposed to enforce 

the prior judgment of paternity and child support.4 The parties 

agree that the underlying proceedings were instituted and tried 

as civil contempt. Kyle’s attorney asserts on appeal that the 

district court erred in finding Kyle in contempt because he did 

not willfully disobey the support order and, further, that the 

court erred in setting a purge amount that resulted in a punitive rather than coercive sanction. Kyle asserts that for these 

reasons, the district court’s order was unreasonable, arbitrary, 

and capricious.

Willful

[3-5] We first address whether the court clearly erred in 

finding that Kyle’s violation of the child support order was 

2 Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012).

3 See, United States v. Armstrong, 781 F.2d 700 (9th Cir. 1986); Arbor 

Farms v. GeoStar Corp., 305 Mich. App. 374, 853 N.W.2d 421 (2014); 

Reed v. Reed, 265 Mich. App. 131, 693 N.W.2d 825 (2005); In re Wilson, 

879 A.2d 199 (Pa. Super. 2005).

4 See Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 

848 (2010), disapproved on other grounds, Hossaini v. Vaelizadeh, supra

note 2.
- 767 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

willful. Civil contempt requires willful disobedience as an 

essential element.5 “Willful” means the violation was committed intentionally, with knowledge that the act violated the court 

order.6 If it is impossible to comply with the order of the court, 

the failure to comply is not willful.7 Willfulness is a factual 

determination to be reviewed for clear error.8

[6-8] Outside of statutory procedures imposing a different standard, it is the complainant’s burden to prove civil 

contempt by clear and convincing evidence and without any 

presumptions.9 But, as this is a case involving child support payable to DHHS, the presumption set forth in Neb. 

Rev. Stat. § 42-358(3) (Reissue 2016) is applicable. Section 

42-358(3) provides in part that “[a] rebuttable presumption 

of contempt shall be established if a prima facie showing is 

made that the court-ordered child or spousal support is delinquent.” Necessarily, the rebuttable presumption of contempt 

provided by § 42-358(3) encompasses the essential element 

of willfulness.10

It is undisputed that the State made such a prima facie showing that Kyle was delinquent in his court-ordered child support by providing a certified copy of payments, balances, and 

arrearages maintained by the Title IV-D Division of DHHS.11

5 Hossaini v. Vaelizadeh, supra note 2.

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

Hossaini v. Vaelizadeh, supra note 2.

7 Novak v. Novak, 245 Neb. 366, 513 N.W.2d 303 (1994), overruled on 

other grounds, Smeal Fire Apparatus Co. v. Kreikemeier, supra note 4.

8 See, In re Interest of Thomas M., 282 Neb. 316, 803 N.W.2d 46 (2011); 

State on behalf of Lockwood v. Laue, 24 Neb. App. 909, 900 N.W.2d 582 

(2017). See, also, e.g., In re Hollis, 150 B.R. 145 (D. Md. 1993); People 

v. Penson, 197 Ill. App. 3d 941, 557 N.E.2d 230, 145 Ill. Dec. 460 (1990); 

McLarty v. Walker, 307 S.W.3d 254 (Tenn. App. 2009).

9 Smeal Fire Apparatus Co. v. Kreikemeier, supra note 4.

10 See D’Angelo v. Guarino, 88 So. 3d 683 (La. App. 2012).

11 See Neb. Rev. Stat. § 43-3342.01 (Reissue 2016).
- 768 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

We conclude that the district court did not err in finding that 

Kyle’s testimony failed to rebut the presumption of contempt 

established pursuant to § 42-358(3).

Contrary to the assertions of Kyle’s attorney on appeal, Kyle 

did not indicate at the contempt hearing that he was ignorant of 

the fact that he was violating a court order. The only testimony 

regarding Kyle’s lack of knowledge related to his failure to 

attend the paternity hearing. Kyle’s testimony that he was confused at some point about where he was supposed to send his 

payments did not rebut the presumption of willfulness; instead, 

it demonstrated his knowledge of the support order.

Neither do we find merit to Kyle’s argument that the district 

court erred in concluding that it was possible to comply with 

the support order. Kyle argues that the district court erred in 

finding his conduct willful because there was no evidence 

that he was able to pay the court-ordered child support. But 

the State presented evidence establishing a presumption that 

Kyle was able to comply with the 2015 order when it made 

a prima facie showing that the court-ordered child support 

was delinquent.12

[9] Other jurisdictions hold under either common law or a 

statutory presumption that a child support order calculated in 

accordance with applicable guidelines creates a presumption 

that the parent was able to pay the amount so ordered during 

the time period subject to contempt.13 The parent rebuts this 

presumption of ability to pay by demonstrating that circumstances beyond the parent’s control have intervened since the 

time the child support order was entered.14 We similarly hold 

that in contempt proceedings, both § 42-358(3) and logic dictate that a valid child support order is evidence of the parent’s 

ability to pay the amount specified therein.

12 See § 42-358(3).

13 See, Polli v. Vina, 557 So. 2d 55 (Fla. App. 1989). See, also, 18 U.S.C. 

§ 228(b) (2012).

14 See Polli v. Vina, supra note 13.
- 769 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

[10,11] The Nebraska Court of Appeals applied a similar 

presumption in In re Interest of Noelle F. & Sarah F.15 when 

it held that a child support order issued in accordance with the 

Nebraska Child Support Guidelines presupposed a financial 

ability that, absent other evidence, defeated a claim of indigence for purposes of appointment of counsel. We have consistently held that in determining the amount of a child support 

award, the trial court must consider the status, character, and 

situation of the parties and attendant circumstances, including 

the financial condition of the parties and the estimated cost of 

support of the children.16 In other words, the parent’s ability 

to pay is an important consideration in setting the amount of 

the child support order.17 We have also held that child support 

established under the Nebraska Child Support Guidelines is 

presumed correct, unless one or both parties present sufficient 

evidence to rebut that presumption.18

The best way to rebut the presumption of an ability to pay 

established by a child support order issued in accordance with 

the Nebraska Child Support Guidelines is evidence to demonstrate a change of circumstances. Though not decisive in a 

contempt proceeding, procedures exist for parents whose situation has changed to timely file a complaint for modification 

of the child support order pursuant to Neb. Rev. Stat. § 42-364 

(Reissue 2016) or to ask DHHS to consider referring the child 

support order to the county attorney or authorized attorney for 

filing an application for modification under Neb. Rev. Stat. 

§ 43-512.15 (Reissue 2016).19

15 In re Interest of Noelle F. & Sarah F., 3 Neb. App. 901, 534 N.W.2d 581 

(1995).

16 Faaborg v. Faaborg, 254 Neb. 501, 576 N.W.2d 826 (1998).

17 See id. See, also, Bird v. Bird, 205 Neb. 619, 288 N.W.2d 747 (1980).

18 See, State on behalf of A.E. v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340 

(2007); Sylvis v. Walling, 248 Neb. 168, 532 N.W.2d 312 (1995).

19 See, also, Neb. Rev. Stat. § 43-512.12 (Reissue 2016).
- 770 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

Kyle failed to demonstrate a change of circumstances 

defeating the presumption of his ability to pay in accordance 

with the support order. Viewed in the light most favorable to 

the prevailing party, Kyle’s unsupported claims of unemployment and disability stated nothing new or different. Other than 

his testimony that he had applied for three jobs per week for 

the past 2 months with no success, Kyle did not present any 

evidence that his ability to earn $8 per hour and work 40 hours 

per week had diminished since the date of the support order. 

Instead, he was evasive when asked to specify how many jobs 

and what kind of jobs he had applied for during the 11 months 

he failed to pay child support, and none he described appeared 

to be in a field he had experience in. Given that Kyle was 

working as a roof loader with the same alleged disabilities 

until his seasonal layoff in November 2015, Kyle failed to 

adequately explain why he has not since sought employment 

in a similar field.

Kyle’s testimony that he suffered disabilities that diminished 

his earning capacity was simply as follows: “I was actually 

taking on some jobs through a subcontractor subcontracting 

work and finishing up some work there. But physically with 

my disability and this and that, I try to do things hands-on so 

—.” Kyle presented no medical documentation or expert testimony supporting his assertion that he suffered from reading 

and writing disabilities and “a back problem and a neck problem” which prevented him from earning income sufficient to 

pay his child support obligations.

Furthermore, as this testimony illustrates, Kyle was vague 

as to the extent he had actually earned income doing subcontracting work during the 11 months that the support order had 

been in effect. Kyle failed to comply with the court’s prior 

order that he submit at the hearing his tax returns and wage 

statements. Kyle failed to provide the court with any employment records. The court reasonably could have made a negative inference from Kyle’s disobedience of the court’s order. 

Though Kyle stated that his support was sometimes supplied 
- 771 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

entirely by the mother of his 6-month-old daughter, such testimony does not establish his inability to become employed; nor 

do his obligations toward that child relieve him of the duty to 

support Mariah and Renee.20

[12] Triers of fact have the right to test the credibility of 

witnesses by their self-interest and to weigh it against the 

evidence, or the lack thereof.21 In this case, Kyle’s testimony 

was woefully inadequate when weighed against the presumption inherent to the child support order that he was capable of 

paying it. The district court did not clearly err in finding that 

during the period applicable to the contempt citation, Kyle had 

the ability to pay the support ordered by the December 2015 

order. By explicitly finding that Kyle had the ability to pay 

and implicitly finding that Kyle had knowledge of the support order, the district court found that Kyle’s disobedience 

was willful. The court did not clearly err in these findings 

and did not abuse its discretion in determining that Kyle was 

in contempt.

Ability to Comply With

Purge Order

[13,14] We turn next to whether the court erred in setting a 

purge amount in excess of Kyle’s present ability to pay, thereby 

making the sanction of incarceration punitive. 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.22 A present inability to comply with a 

contempt order is a defense, not necessarily to contempt, but 

20 See Richardson v. Anderson, 8 Neb. App. 923, 604 N.W.2d 427 (2000).

21 Ohnstad v. Omaha Public Sch. Dist. No. 1, 232 Neb. 788, 442 N.W.2d 859 

(1989); First Nat. Bank of Omaha v. First Cadco Corp., 189 Neb. 734, 205 

N.W.2d 115 (1973).

22 Sickler v. Sickler, supra note 6.
- 772 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

to the sanction of incarceration.23 Though the ability to pay 

the purge amount is a factual question that we review for clear 

error, whether the facts result in a due process violation is a 

question of law.24

[15,16] When a purge order involves payment of money, 

the sum required to purge oneself of contempt must be within 

the contemnor’s ability to pay within the time period provided 

in the order, taking into consideration the assets and financial condition of the contemnor and his or her ability to raise 

money.25 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.26 Contemnors 

in civil contempt must carry the keys of their jail cells in their 

own pockets.27

[17] Though related and involving similar evidence, the 

due process question of whether Kyle is able to pay the 

purge amount is not the same as whether Kyle willfully violated the December 2015 child support order and was thereby 

in contempt. The statutory presumption of contempt under 

§ 42-358(3) does not determine the question of whether the 

purge plan is punitive. And while a presumption of an ability to pay the child support order made in accordance with 

the Nebraska Child Support Guidelines may be relevant, it is 

not conclusive as to the reasonableness of the purge amount. 

Kyle’s ability to pay in accordance with the child support order 

was evaluated over the 11-month period since its issuance,28

23 See id.

24 See, United States v. Armstrong, supra note 3; Arbor Farms v. GeoStar 

Corp., supra note 3; Reed v. Reed, supra note 3; In re Wilson, supra

note 3.

25 See id.

26 Id.

27 See id.

28 See id.
- 773 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

but whether the purge plan was punitive was evaluated at the 

time of the order of contempt. A past ability to comply with an 

order does not show a present ability to purge the contempt.29

But past failure coupled with unpersuasive or unsupported 

claims of present inability is sufficient.

[18] We reiterate our recent holding in Sickler v. Sickler30

that, despite any overlap with the finding of willful disobedience in the underlying contempt, a court that imposes incarceration as part of civil contempt proceedings shall make 

express findings regarding the contemnor’s ability to comply 

with the purge order. Such a finding is required because of 

“the importance of the ability to comply in distinguishing 

between civil and criminal contempt and its due process 

implications.”31

While the district court stated in its order that Kyle had the 

ability to pay the support obligation, it failed to explicitly find 

that Kyle had the present ability to comply with the contempt 

order. Kyle does not assign as error the court’s failure to make 

a specific finding regarding his ability to comply with the 

contempt order, however. And we find no plain error, because 

the record supports the court’s implicit conclusion that Kyle 

failed to prove an inability to comply.

[19-22] It is the contemnor who has the burden to assert 

and prove the inability to comply with the contempt order as 

a defense to incarceration.32 The burden of both production 

and persuasion is on the contemnor to show the present inability to comply.33 Such a showing entails attempts to exhaust 

all resources and assets or borrow sufficient funds and the 

inability to thereby secure the funds to comply with the purge 

29 Sickler v. Sickler, supra note 6.

30 Id.

31 Id. at 543, 878 N.W.2d at 566.

32 See Sickler v. Sickler, supra note 6.

33 Id.
- 774 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

order.34 In general, the contemnor’s inability to comply cannot 

be voluntarily created, for example by not diligently seeking a 

job at one’s earning potential.35

As already discussed, the evidence suggested that Kyle was 

able to work as a roof loader despite his claimed disabilities. 

The district court did not find credible Kyle’s testimony to 

the contrary.

Kyle’s evidence that he was unable to comply consisted of 

his self-serving and vague testimony that he had unsuccessfully 

applied for work during the prior 2 months. The only specific 

testimony regarding Kyle’s recent attempts to gain employment were that he had applied for three jobs per week and that 

his most recent three applications were in retail—a field that 

there was no evidence he had experience in. Kyle provided 

scant evidence he was incapable of finding work similar to 

his “last good job” as a roof loader, which he had been able to 

perform despite the disabilities alleged at the hearing. Kyle’s 

failure to find a job in the 2 months preceding the hearing did 

not foreclose the district court from finding that Kyle would be 

able to obtain full-time employment within the 2-month grace 

period of the contempt order.

Furthermore, although Kyle testified that he did not own a 

vehicle or his home, and that he had “no money,” Kyle failed 

to make a full accounting of his assets. Instead, he disobeyed 

the court’s order to produce his tax documents.

Finally, Kyle presented no evidence whatsoever of an inability to borrow sufficient funds to comply with the purge order.

[23] It is true that the district court found Kyle indigent 

on July 8, 2016, for purposes of the appointment of counsel. 

Kyle relies on this finding in asserting that it was impossible 

for him to pay the purge amount. But the inability-to-pay 

threshold for determining that the contemnor lacks the keys to 

34 Id.

35 See Jenkins v. State, 60 Neb. 205, 82 N.W. 622 (1900).
- 775 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

his or her own jail cell is higher than the indigence threshold 

for appointing counsel.36 Thus, a finding of indigency for purposes of retaining legal counsel does not preclude a finding 

that the contemnor is able to pay whatever purge amount has 

been set by the court.

Neb. Rev. Stat. § 29-3901(3) (Reissue 2016) defines indigent as “the inability to retain legal counsel without prejudicing one’s financial ability to provide economic necessities for 

one’s self or one’s family.” A court may find indigency for 

purposes of appointment of counsel based alone on a situation 

where expenses exceed income, and a person is not required to 

prejudice one’s financial ability to provide economic necessities for oneself or one’s family in order to be determined indigent for that purpose.37 Nor must a person dispose of all his or 

her assets or have exhausted all possible sources of borrowing 

money before being eligible for appointment of counsel.38

[24] In contrast, as stated, an inability to comply with a 

purge order entails having exhausted all assets and opportunities to borrow sufficient funds.39 Moreover, a purge order 

involving simply the arrears owed in child support promotes 

rather than prejudices the contemnor’s provision for his or her 

family. As we have said before, “[t]he support of one’s children is a fundamental obligation which takes precedence over 

almost everything else.”40

We read the contempt order as including the $230 monthly 

support obligation as part of the purge amount. It may have 

36 See In re Mancha, 440 S.W.3d 158 (Tex. App. 2013). See, also, Lamb v. 

Eads, 346 N.W.2d 830 (Iowa 1984). But see, Turner v. Rogers, 564 U.S. 

431, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011); Andrews v. Walton, 428 

So. 2d 663 (Fla. 1983); State ex rel. Shaw v. Provaznik, 708 S.W.2d 337 

(Mo. App. 1986).

37 See State v. Masilko, 226 Neb. 45, 409 N.W.2d 322 (1987).

38 Id.

39 See Sickler v. Sickler, supra note 6.

40 State v. Reuter, 216 Neb. 325, 328, 343 N.W.2d 907, 910 (1984).
- 776 -

Nebraska Supreme Court Advance Sheets

298 Nebraska Reports

STATE ON BEHALF OF MARIAH B. & RENEE B. v. KYLE B.

Cite as 298 Neb. 759

been the court’s intention to impose as the purge amount $100 

monthly in arrearages and to simply reiterate that Kyle must 

continue his underlying monthly support obligation during 

that time. But that does not appear on the face of the order to 

be what the court did. While we recognize the purge order in 

this respect is irregular, in that it includes future child support 

installments which have not yet accrued, Kyle does not challenge the propriety of including in the purge amount his ongoing monthly obligation. The question presented is whether it 

was impossible to comply with the order. The record supports 

the court’s conclusion that Kyle did not demonstrate inability 

to pay $330 monthly for 18 months, beginning approximately 

2 months from the time of the contempt hearing, or, alternatively, inability to pay $1,000 once jailed.

We find no merit to Kyle’s claim that the contempt order 

impermissibly imposed a criminal or punitive sanction in a 

civil proceeding.

CONCLUSION

There is no merit to Kyle’s assignments of error challenging 

the underlying finding of contempt and the reasonableness of 

the purge amount. We affirm the order of contempt.

Affirmed.

Wright, J., not participating.