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VYHLIDAL v. VYHLIDAL

Cite as 309 Neb. 376

Eric J. Vyhlidal, appellant, v. 

Nessa A. Vyhlidal, appellee.

___ N.W.2d ___

Filed May 28, 2021. No. S-20-663.

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 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. Child Custody: Appeal and Error. Relocation and 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.

3. Judges: Words and Phrases. A judicial abuse of discretion exists if the 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition.

4. Contempt. The power to punish for contempt of court is a power inherent in all courts of general jurisdiction such as the district courts of 

this state.

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.

6. ____. A party to an action who fails to obey an order of the court, made 

for the benefit of the opposing party, is, ordinarily, guilty of a mere 

civil contempt.

7. Contempt: Proof: Stipulations. In order to prove civil contempt, unless 

the alleged contemptuous acts occurred within the presence of the judge, 

or the parties stipulate otherwise, an evidentiary hearing is necessary 

Nebraska Supreme Court Online Library

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

07/23/2021 08:09 AM CDT
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VYHLIDAL v. VYHLIDAL

Cite as 309 Neb. 376

so that the moving party can offer evidence to demonstrate both that a 

violation of a court order occurred and that the violation was willful.

8. Child Custody: Words and Phrases. Under the Parenting Act, the concept of child custody encompasses both physical custody and legal custody, with legal custody focusing entirely on decisionmaking authority.

9. ____: ____. The term “joint legal custody” is the joint authority and 

responsibility for making major decisions regarding the child’s welfare, 

while the term “sole legal custody” establishes that one party will have 

the final say in such decisions.

10. Child Custody. In child custody cases, the decision of where a child 

will attend school is a fundamental decision.

Appeal from the District Court for Garfield County: Mark 

D. Kozisek, Judge. Reversed and remanded for further 

proceedings.

Loralea L. Frank and Nathan P. Husak, of Bruner, Frank, 

Schumacher & Husak, L.L.C., for appellant.

Vikki S. Stamm and Sarah M. Hammond, of Stamm, Romero 

& Associates, P.C., L.L.O., for appellee.

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

Papik, and Freudenberg, JJ.

Funke, J.

Eric J. Vyhlidal appeals the denial of his motion for an 

order to show cause based on Nessa A. Vyhlidal’s relocation of 

their minor child. In denying the motion, the district court for 

Garfield County, Nebraska, found the parties’ parenting plan 

did not require the minor child to attend school in Burwell, 

Nebraska, rather than Springfield, Nebraska. As such, the court 

determined that the order to show cause was not warranted. On 

appeal, Eric argues the district court abused its discretion in 

denying his motion. Because we agree, we reverse, and remand 

for further proceedings.

BACKGROUND

Eric and Nessa were married in 2013, and one child was 

born of their marriage. The parties divorced in 2018, and 
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VYHLIDAL v. VYHLIDAL

Cite as 309 Neb. 376

the decree of dissolution dissolving their marriage awarded 

the parties joint legal and physical custody of the minor child. 

At the time of the divorce, Eric and Nessa entered into a marital settlement agreement and a parenting plan. The parenting 

plan, in relevant part, provides as follows:

C. REGULAR TIME-SHARING:

[Minor child] will be with Mom during the school year, 

except for one night each week from after school until 

8 p.m. Dad will give Mom 2 weeks’ notice of what night 

he will exercise that parenting time.

The parents agree to alternate weekends, with Dad having [minor child] two weekends in a row from Friday at 

6 p.m. until Sunday at 6 p.m., then Mom having [minor 

child] the third weekend. On the Sundays when Mom 

works at night, Dad will have [minor child] until he drops 

him off for school on Monday morning. The parents shall 

follow a 2 weekend with dad/1 weekend with mom rotation. This weekend rotation shall resume the first Friday 

after school resumes with dad commencing the weekend 

rotation annually.

The parents agree that they will work together to adjust 

[minor child’s] schedule if their time with [minor child] 

interferes with the work schedule.

Neither parent may make plans for the child during the 

other parent’s parenting time without talking with that 

parent in advance and obtaining that parent’s consent.

. . . .

K. DECISION MAKING: The parents will discuss 

matters concerning the child, such as health and medical, school related problems and decisions, and any 

behavioral or disciplinary issues that could impact both 

households.

. . . .

O. CHANGE OF PARENT’S RESIDENCE: In the 

event that one of the parents plan to change his/her 

residence, that parent shall notify the other parent of 
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VYHLIDAL v. VYHLIDAL

Cite as 309 Neb. 376

such change of residence. If one of the parents is living 

or moving to an undisclosed location because of safety 

concerns, the address or return address shall only include 

the county and state.

P. CHANGE OF CHILD’S RESIDENCE: Both parents shall provide notification to the other if s/he plans 

to change the residence of the child. Neither parent may 

move the child outside of the [S]tate of Nebraska without 

permission of the Court. If intending to move that parent 

must first:

• Make written application to the Court at least 45 days in 

advance, including the proposed changes to the parenting 

time schedule and costs of transportation[;]

• Give notice of the application and hearing to the other 

parent; and,

• Establish that the move is in the best interest of the 

child.

On July 28, 2020, Nessa informed Eric that she intended to 

move with the minor child from Burwell to Springfield. Eric 

objected to the proposed relocation, and the parties attempted 

to resolve the matter through mediation. After mediation failed, 

Nessa proceeded with the move.

On August 11, 2020, Eric filed a motion, with an accompany

ing affidavit, asking the court to issue an ex parte order that 

would require Nessa to keep the minor child in the Burwell 

School District. In his motion, Eric stated that he and Nessa 

share joint legal and joint physical custody of the minor child 

and that Nessa made a unilateral decision to move the minor 

child without his consent. On the same day, Eric filed a motion 

for order to show cause, with an accompanying affidavit, asking the court to issue an order requiring Nessa to appear and 

show cause as to why she should not be held in contempt of 

court. Eric also asked the court to award him attorney fees. 

Additionally, Eric filed a motion for writ of assistance, requesting the court to direct law enforcement to take custody of the 

minor child and deliver the minor child to him.
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VYHLIDAL v. VYHLIDAL

Cite as 309 Neb. 376

On August 12, 2020, the district court entered a one-page 

order, denying Eric’s motions for an order to show cause and 

for a writ of assistance. The court found that the parenting plan 

requires an application to the court and notice of hearing before 

a child may be moved out of the state, but found “no provision 

in the Parenting Plan requiring [minor child] to attend school 

in Burwell.” The district court also noted that Nessa was 

granted custody during the school year except for one night per 

week that the minor child would spend with Eric. Eric timely 

appealed, and we moved the matter to our docket.

ASSIGNMENT OF ERROR

Eric assigns, consolidated, that the district court abused its 

discretion in denying his motion for an order to show cause.

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. 1

[2,3] Relocation and 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. 2 A judicial abuse of discretion exists if the reasons 

or rulings of a trial judge are clearly untenable, unfairly 

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

N.W.2d 17 (2018); Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 

(2012).

2 See, Korth v. Korth, ante p. 115, ___ N.W.2d ___ (2021); Schrag v. Spear, 

290 Neb. 98, 858 N.W.2d 865 (2015).
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VYHLIDAL v. VYHLIDAL

Cite as 309 Neb. 376

depriving a litigant of a substantial right and denying just 

results in matters submitted for disposition. 3

ANALYSIS

Contempt

[4] The power to punish for contempt of court is a power 

inherent in all courts of general jurisdiction such as the district 

courts of this state. 4 Under Neb. Rev. Stat. § 25-2121 (Reissue 

2016), “[e]very court of record shall have power to punish by 

fine and imprisonment, or by either, . . . (3) willful disobedience of or resistance willfully offered to any lawful process or 

order of said court . . . .”

[5-7] 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. 5 A party to an action who fails to obey an 

order of the court, made for the benefit of the opposing party, 

is, ordinarily, guilty of a mere civil contempt. 6 As noted by the 

Nebraska Court of Appeals, in order to prove civil contempt, 

unless the alleged contemptuous acts occurred within the presence of the judge, or the parties stipulate otherwise, an evidentiary hearing is necessary so that the moving party can offer 

evidence to demonstrate both that a violation of a court order 

occurred and that the violation was willful. 7

In the instant matter, the district court’s denial of Eric’s 

motion for an order to show cause deprived Eric of the opportunity to preserve and enforce his rights as a parent with 

joint legal custody and his rights to parenting time. In doing 

so, the court incorrectly focused on Nessa’s compliance with 

3 Id.

4 State ex rel. Beck v. Frontier Airlines, Inc., 174 Neb. 172, 116 N.W.2d 281 

(1962).

5 Martin v. Martin, 294 Neb. 106, 881 N.W.2d 174 (2016).

6 Rhodes v. Rhodes, 210 Neb. 373, 314 N.W.2d 271 (1982).

7 See deBoer v. deBoer, 24 Neb. App. 612, 892 N.W.2d 879 (2017).
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VYHLIDAL v. VYHLIDAL

Cite as 309 Neb. 376

notification requirements and failed to consider Eric’s rights set 

out in the decree of dissolution of marriage.

Joint Legal Custody

[8,9] Under the Parenting Act, adopted by the Nebraska 

Legislature, the concept of child custody encompasses both 

“physical custody” and “legal custody,” 8 with legal custody 

focusing entirely on decisionmaking authority. 9 The Parenting 

Act defines the term “joint legal custody” as meaning “mutual 

authority and responsibility of the parents for making mutual 

fundamental decisions regarding the child’s welfare, including 

choices regarding education and health.” 10 In other words, joint 

legal custody is the “joint authority and responsibility for making major decisions regarding the child’s welfare,” 11 while sole 

legal custody essentially establishes that one party will have 

the final say in such decisions. 12

[10] Here, the parenting plan, developed by the parties and 

approved by the court, clearly indicates that the parties were to 

share joint legal custody of the minor child, and neither party 

was granted exclusive final decisionmaking authority. As a 

result, it is undisputed that the parties share mutual authority 

for making fundamental decisions regarding the minor child’s 

welfare, including choices regarding education, such as where 

the minor child will attend school. We have classified the 

decision of where a child will attend school as a fundamental decision. 13

8 See Neb. Rev. Stat. § 43-2922(7) (Cum. Supp. 2020).

9 State on behalf of Kaaden S. v. Jeffery T., 303 Neb. 933, 932 N.W.2d 692 

(2019).

10 § 43-2922(11).

11 Brown v. Brown, 260 Neb. 954, 961, 621 N.W.2d 70, 77 (2000), quoting 

Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999) (internal quota

tion marks omitted).

12 See § 43-2922(13).

13 See State on behalf of Kaaden S., supra note 9 (stating that father had final 

say on fundamental decisions regarding child’s welfare, such as where he 

attends school, because he was awarded legal custody of the child).
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VYHLIDAL v. VYHLIDAL

Cite as 309 Neb. 376

Over Eric’s objection and absent application to the court, 

Nessa removed the minor child from the Burwell School 

District and enrolled him into a new school in Springfield. 

Whether Nessa’s unilateral decision to change the child’s 

school is a willful violation of the decree of dissolution of 

marriage entered by the court is a matter to be considered at an 

evidentiary hearing where Eric can offer evidence to demonstrate both that a violation of the court order occurred and that 

the violation was willful.

Thus, we conclude the district court’s decision to deny Eric’s 

motion for an order to show cause was an abuse of discretion 

that unfairly deprived Eric of his rights as a joint legal custodian of the minor child.

Parenting Time

In denying Eric’s motion for an order to show cause, the 

district court noted that Eric’s weekday parenting time with 

the minor child would be impacted. The Parenting Act defines 

“parenting time” as “communication or time spent between the 

child and parent.” 14 However, the trial court’s analysis went no 

further in considering the loss of Eric’s parenting time and who 

was responsible for that loss. The court failed to consider the 

significant interference Nessa’s relocation has on Eric’s parenting time during the school year.

In the instant case, the distance between Burwell and 

Springfield is considerable. At oral argument, Nessa conceded 

that the distance is approximately a 4-hour drive. During the 

school year, Eric has parenting time one night each week 

from after school until 8 p.m., in addition to two out of every 

three weekends. Eric also has parenting time with the minor 

child from Sunday until Monday morning when Nessa is 

working at night. Although the parties have agreed to meet 

halfway to exchange the minor child, Nessa’s relocation of 

the minor child makes Eric’s weekday parenting time and his 

14 § 43-2922(19).
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VYHLIDAL v. VYHLIDAL

Cite as 309 Neb. 376

Sunday overnight parenting time virtually impossible. Nessa 

conceded at oral argument that since her move, Eric has not 

been afforded his weekday visits. As a result, the district court 

abused its discretion in failing to issue an order to show cause 

as to why Nessa did not willfully violate the decree of dissolution of marriage in regard to Eric’s parenting time.

CONCLUSION

Joint legal custody means Eric and Nessa share mutual decisionmaking authority when it comes to making fundamental 

decisions regarding the minor child’s welfare and education, 

such as where the child will attend school. Because Nessa’s 

unilateral decision to relocate the minor child ran contrary 

to the parties’ joint legal custody arrangement and because it 

has deprived Eric of court-ordered parenting time, the district 

court’s denial of Eric’s motion for an order to show cause was 

an abuse of discretion.

Reversed and remanded for 

further proceedings.