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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

PEKAREK V. PEKAREK

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

RACHAEL A. PEKAREK, APPELLANT,

V.

SHAUN M. PEKAREK, APPELLEE.

Filed July 11, 2023. No. A-22-735.

Appeal from the District Court for Nemaha County: JULIE D. SMITH, Judge. Affirmed.

Angelo M. Ligouri, of Ligouri Law Office, for appellant.

Ryan K. McIntosh, of Brandt, Horan, Hallstrom & Stilmock, for appellee.

RIEDMANN, BISHOP, and WELCH, Judges.

RIEDMANN, Judge.

INTRODUCTION

Rachael A. Pekarek appeals from the order of the Nemaha County District Court that found 

her in contempt. On appeal, she assigns error to various factual findings of the district court, to the 

finding that the parties share legal custody of the children, as well as to the finding that she was in 

contempt. After reviewing the record, we affirm the order of the district court.

BACKGROUND

Rachael and Shaun M. Pekarek were married in 2011, and the marriage was dissolved by 

a decree issued in 2014; the parties have two children. The parties entered into a stipulated 

parenting plan that awarded Rachael sole legal and physical custody of the children with parenting 

time set forth for Shaun. The dissolution decree, however, states

The parties agree that it would be in the best interest of the minor children of the parties, 

[], that [Rachael] and [Shaun] have joint legal custody, and [Rachael] have sole physical 
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custody of said minor children, subject to visitation with [Shaun] as set forth in the 

Parenting Plan attached hereto as Exhibit “1”.

Therefore, the agreement as to joint legal custody referenced in the decree differs from the 

agreement as to legal custody in the parenting plan.

Since the 2014 entry of the decree, it has been modified, but no issue was raised with 

respect to legal custody of the parties’ children. Pursuant to the parenting plan, Shaun had 

parenting time on alternating weekends and on every Wednesday evening; a holiday schedule was 

also provided. In June 2022, Shaun filed an application for contempt, alleging that Rachael had 

refused him parenting time with the children. Specifically, Shaun alleged that beginning in March, 

Rachael had severed contact between Shaun and the children. An order to show cause was issued. 

Rachael filed a denial of the allegations of contempt, as well as a complaint to modify which asked 

for a change in parenting time and any other relief the court deemed just and equitable.

The district court ordered mediation and scheduled an evidentiary hearing. At the 

evidentiary hearing both Shaun and Rachael testified, as did the parties’ children, who testified 

outside the presence of the parties and whose testimony was sealed; Shaun’s wife and older stepson 

also testified. At the time of trial, the parties’ daughter was 14 years old, and the parties’ son was 

10 years old.

Evidence presented at the hearing showed that in September 2021 Rachael found letters 

written by the parties’ daughter which led Rachael to believe there was inappropriate contact 

between the daughter and Shaun’s older stepson. Rachael contacted Shaun, and he looked through 

the daughter’s room at his home but could not find anything related to this issue. Shaun spoke with 

his wife, and they spoke with Shaun’s stepson, who told them nothing was going on; Shaun also 

looked through his stepson’s phone. Shaun believed he had fully investigated the matter and he 

did not believe that any inappropriate relationship had occurred. There was no interruption of 

Shaun’s parenting time after the incident in September. Shaun’s stepson testified that he and the 

parties’ daughter had never had any inappropriate contact. Shaun testified that he rarely leaves the 

children by themselves except when everyone was going to sleep.

Shaun was to have parenting time the weekend of March 18, 2022, but when he messaged 

Rachael about it, she told him the children were on spring break and he could not have his parenting 

time. He was able to exercise his parenting time on the weekend of April 2, but that was the last 

time he had had parenting time until the hearing. Rachael testified that when she looked through 

the daughter’s belongings after the children returned from Shaun’s parenting time the weekend of 

April 2, she found additional items that made her believe that the daughter and Shaun’s older 

stepson were involved in an inappropriate relationship. Rachael decided to contact her lawyer to 

see what her options were.

A text message shows that Shaun asked to see the children in April 2022 but was told that 

Easter was Rachael’s weekend pursuant to the parenting plan, and that the weekend after was also 

her weekend. On April 29 Shaun sent a text message to Rachael asking about plans for exchanging 

the children that weekend and Rachael informed him that the children had plans. In May, Racheal’s 

attorney contacted Shaun and asked him to attend mediation. The letter the attorney sent to Shaun 

also notified him that Rachael had suspended visitation for the safety and welfare of the children. 

Later in May, Rachael informed Shaun in a text message that she had full legal and physical 
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custody and that he “had visitation rights only. And those have been suspended. By me.” At the 

hearing, Rachael confirmed her belief that as the custodial parent, she had the right to make 

decisions that were in the best interests of the children, and that if Shaun’s “input is not in the best 

favor of the children, then regardless of [Shaun’s input],” it was her job to make those decisions.

Rachael stated that she did not sever Shaun’s parenting time, but that she only suspended 

it so they could work out safety issues. Rachael stated that suspending meant she was not taking 

away Shaun’s visitation or trying to take the children from their father, but she was making sure 

that the children would be in a safe space. She confirmed her belief that as the legal custodian, she 

had the authority and responsibility to make fundamental decisions regarding the children’s 

welfare, including exerting continuous parenting time for sufficient periods of time. She confirmed

her belief that the children’s health and welfare were in jeopardy during their visits.

Rachael testified that in September 2021, when Shaun told her he would take care of it she 

hoped he would, but when she found the information in April 2022, she was concerned that things 

had not been addressed. She said that she had attempted to work things out with Shaun but that he 

kept “blowing [her] off.” Rachael claimed she thought suspending visitation so that the parties 

could go to mediation would resolve things without court intervention.

Information regarding other issues was also presented. There was evidence that in early 

2021, Shaun “slam[med]” the parties’ son’s head into a wall. Shaun denied that he had slammed 

his son’s head into a wall but acknowledged that his son did not want to see him after an incident 

that occurred at his house. The children missed their next scheduled parenting time with Shaun 

after the incident, but then parenting time resumed as it had been. Rachael alleged that the children 

were allowed to drink alcohol at Shaun’s home. Shaun testified that on New Year’s Eve, the 

parties’ daughter started to take a drink of his wife’s drink and he told her to put it down and walk 

away, which she did. Shaun stated that he does not allow the children to drink alcohol in his home 

or outside of his home.

Additionally, there was evidence that Shaun had, while communicating with the parties’

daughter, referred to Rachael as the daughter’s “egg donor.” There was also testimony that on 

previous occasions, Shaun would drink alcohol in the vehicle while driving with the children in 

the vehicle.

In its order following the hearing, the district court noted there was “ambiguity” between 

the parenting plan and the divorce decree with regard to legal custody. Before analyzing whether 

Rachael would be held in contempt, the district court observed that the parenting plan was not 

signed by the district court judge who presided over the parties’ divorce, but the divorce decree 

was. It, therefore, determined that the parties had joint legal custody. As it related to the issue of 

contempt, the district court noted that even a parent with sole legal custody did not have the 

unfettered right to suspend the other parent’s parenting time unilaterally and without any effort to 

seek court approval of the deviation of court ordered parenting time.

The district court found the delay of time between Rachael first approaching Shaun about 

her concerns regarding the parties’ daughter and Shaun’s older stepson and her decision to suspend 

parenting time to be concerning. The district court also found that any allegations that the parties’

daughter and Shaun’s older stepson engaged in sexual contact were unsubstantiated. It noted that 

Rachael acted on her own without leave of court, and that she could have requested an ex parte 

order from the district court to determine temporary custody and to place restrictions on parenting 
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time to ensure the children’s safety. While the district court acknowledged that Rachael attempted 

to mediate the matter, the children had not seen their father all summer without any court order in 

place to allow for suspension of Shaun’s parenting time.

The district court found Shaun had met his burden by clear and convincing evidence to 

show that Rachael was in willful contempt of court for failing to allow him to exercise his weekend 

parenting time between March 2022 and the date the contempt action was filed in June 2022. (We 

note, however, that Shaun exercised parenting time the weekend of April 2.) Rachael was ordered 

to serve 30 days in jail beginning on January 5, 2023. She was ordered to pay Shaun’s attorney 

fees in the amount of $1,500, by November 15, 2022, as well as accrued interest. The district court 

stated that Rachael could purge herself of the contempt by ensuring the children attended all 

parenting time with Shaun between the date of the order and January 5, 2023. It also temporarily 

ordered certain conditions during parenting time, including conditions related to alcohol 

consumption and the supervision required of the parties’ daughter around her stepbrothers. Rachael 

appeals.

ASSIGNMENTS OF ERROR

Rachael assigns several errors on appeal. She alleges the district court erred (1) in finding 

that the parties’ daughter’s testimony about Shaun’s younger stepson was not relevant for the 

contempt action; (2) in determining that the parties had joint legal custody and terminating her sole 

legal custody; (3) in determining that Rachael made an “unfettered” suspension of Shaun’s 

visitation (4) in determining that a several months’ elapse was too long for Rachael to be truly 

concerned about the safety and welfare of the minor children while on visits; (5) in determining 

Rachael was in willful contempt within the same order in which the district court modified the 

parenting plan on visitation to address the same issues/concerns that Rachael tried to address with 

Shaun individually and through mediation, which he refused, thus creating Shaun’s allegations for 

contempt against her; (6) in sanctioning her to serve 30 days in jail beginning January 5, 2023, 

without stating the facts on which she was determined to be in contempt of the parenting plan 

adopted by the court; (7) in sanctioning her to pay $1,500 in attorney fees in full by November 15, 

2022, with interest accruing immediately, without allowing her to purge herself of the contempt; 

and (8) that the district court’s order violates public policy and the fundamental rights of the 

custodial parent pursuant to the parties’ agreed upon parenting plan, constituting an abuse of 

discretion.

STANDARD OF REVIEW

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. Kitsmiller v. Kitsmiller, 31 

Neb. App. 473, 983 N.W.2d 147 (2022).

A trial court’s determination of requests for sanctions and for attorney fees are both 

reviewed for an abuse of discretion. Id.
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ANALYSIS

Evidence Regarding Shaun’s Younger Stepson.

Rachael argues the district court erred in finding that allegations against Shaun’s younger 

stepson were not relevant for the contempt action. Because these allegations were made in the 

privacy of the court’s chambers and are contained in the sealed transcripts, we will not repeat them 

here. The district court found that there was no evidence that either party was aware of these 

allegations and that they were not relevant for the contempt action, although they may be relevant 

for the purpose of a temporary order.

Rachael argues that Nebraska law does not require her to know the exact person causing 

harm to her children, and that the evidence clearly established that she knew harm was occurring. 

She argues that the evidence was relevant because it supported her decision to suspend Shaun’s 

parenting time.

We note that the information related to this issue was not excluded from evidence; rather, 

the district court found it not relevant for purposes of determining whether Rachael was in 

contempt. The issue before this court on appeal, therefore, is whether the district court erred in 

finding it not relevant to its contempt analysis.

Because there was no evidence that Rachael was aware of these allegations, it could not 

have been a basis for her decision to suspend Shaun’s parenting time. Furthermore, as will be 

discussed later in this opinion, the district court did not abuse its discretion in finding Rachael in 

contempt for unilaterally suspending Shaun’s parenting time. Even if the allegations related to 

Shaun’s younger stepson had been considered by the district court, Rachael did not have the 

authority to suspend Shaun’s court approved parenting time without seeking approval from the 

district court.

Legal Custody.

Rachael assigns the district court erred in determining the parties had joint legal custody 

thereby terminating her sole legal custody. She argues that the parties agreed that she would have 

sole legal and physical custody in their signed parenting agreement and that the agreement was 

“adopted and incorporated ‘in total’ within the Court’s decree by the [judge] on the record at the 

final hearing of dissolution of marriage on June 11, 2014.” Brief for appellant at 18. While we 

agree that the parenting plan attached to the 2014 decree provides for Rachael’s sole legal and 

physical custody, the divorce decree states

The parties agree that it would be in the best interest of the minor children of the parties, 

[], that [Rachael] and [Shaun] have joint legal custody, and [Rachael] have sole physical 

custody of said minor children, subject to visitation with [Shaun] as set forth in the 

Parenting Plan attached hereto as Exhibit “1”.

Rachael provided this court with the record of the dissolution hearing to support her 

position that the court adopted and incorporated the parenting plan into the decree and that she was 

awarded sole legal custody. The Nebraska Supreme Court has stated “once the court adopts the 

agreement and sets it forth as a judgment of the court with corresponding ordering language, the 
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contractual character of the property settlement agreement is subsumed into the court-ordered 

judgment.” Rice v. Webb, 287 Neb. 712, 723, 844 N.W.2d 290, 298 (2014).

Here, the decree makes no reference to the parenting plan being adopted and incorporated; 

rather, the language of the decree references the parenting plan only in conjunction with Shaun’s 

visitation schedule. A decree is a judgment, and once a decree for dissolution becomes final, its 

meaning, including a settlement agreement incorporated therein, is determined as a matter of law 

from the four corners of the decree itself. Vyhlidal v. Vyhlidal, 311 Neb. 495, 973 N.W.2d 171 

(2022). It is inherent to a judgment’s finality that all are bound by the original language used, and 

all ought to interpret the language the same way. Bayne v. Bayne, 302 Neb. 858, 925 N.W.2d 687 

(2019). See also Neujahr v. Neujahr, 223 Neb. 722, 393 N.W.2d 47 (1986) (even when 

“interpretation” of decree is necessary interpretation will be based upon language of decree and 

not based upon what parties believed court meant but did not say).

Therefore, although the parenting plan is attached to the decree, it was not adopted and 

incorporated into the decree and the plain language of the decree awards the parties joint legal 

custody. Consequently, the district court did not err in determining the parties’ shared joint legal 

custody.

Suspension of Visitation.

Rachael argues the district court erred in determining she made an “unfettered” suspension 

of Shaun’s visitation at his residence. She argues that prior caselaw lends support to the idea that 

if a custodial parent has concerns about the child’s mental, emotional, or physical wellbeing, they 

need not force the child to visit with the other parent just because a parenting plan is in place and 

that the courts must look at the custodial parent’s conduct. Rachael is essentially arguing the 

district court erred in finding her in willful contempt. We disagree. When a party to an action fails 

to comply with a court order made for the benefit of the opposing party, such act is ordinary civil 

contempt, which requires willful disobedience as an essential element. Kitsmiller v. Kitsmiller, 31 

Neb. App. 473, 983 N.W.2d 147 (2022). Outside of statutory procedures imposing a different 

standard, it is the complainant’s burden to prove civil contempt by clear and convincing evidence. 

Id.

Here, Shaun showed that Rachael made the decision to stop his parental visitation with 

their children. While Rachael sought mediation, she did not seek a court order or ask the court to 

intervene. The letter Shaun received from her attorney stated that Rachael had suspended visitation 

for the safety and welfare of the children, and that Rachael was willing to go to mediation. Rachael 

informed Shaun that he had only visitation rights and that she was suspending those rights. This 

shows she was aware that Shaun was entitled to court ordered visitation, and that she was not going 

to allow him to exercise those rights. But Rachael did not have the authority to unilaterally 

determine if Shaun could exercise his parental visitation.

It is understandable that a parent, believing her child to be in an unsafe environment, would 

wish to take steps to protect that child. But here, Rachael chose to take steps without regard to the 

parental visitation schedule ordered by the court. Rachael’s belief that her child was in an unsafe 

environment when she attended parenting time with Shaun, regardless of whether she believed she 

had sole custody, did not give her the ability to “suspend” Shaun’s court ordered parenting time 
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without seeking approval from the district court. The district court did not err in finding Rachael 

to be in contempt of the parenting plan.

Delay in Suspending Visits.

Rachael argues the district court erred in determining she waited too long a period of time 

to truly be concerned about the children’s safety on visitation. At issue here is Rachael’s discovery 

of the information in September 2021, after which she did not suspend visits, and her discovery in 

April 2022, after which she suspended visits. But even assuming, solely for the sake of argument, 

that Rachael did not wait an unreasonable amount of time, or that waiting to take action until 

finding additional information in April was reasonable, this does not change the outcome of this 

case. It is the steps Rachael took to address the issues that caused her to be in contempt, not her 

reasons or the timeframe she chose for taking the action. The length of time involved does not 

change the fact that Rachael did not have the authority to suspend visits without seeking 

intervention from the district court.

Contempt Finding and Temporary Order.

Rachael argues the district court erred in finding her in willful contempt of the parenting 

plan and in the same order amending the parenting plan to disallow the very conduct she was 

refusing to allow for the best interest, safety, and welfare of the minor children. She argues she 

stopped visitation specifically to mediate the very concerns outlined within the district court’s 

temporary order which amended the parenting plan; she argues she should not be held in willful 

contempt of the parenting plan for seeking the same safety and protection for her children that the 

district court adopted within its order of contempt.

Again, Rachael focuses on the reasons behind her conduct, rather than her conduct. It was 

not the reason she took her actions, nor the outcome she desired due to her actions, but the actions 

themselves that placed her in contempt of the district court’s parental visitation order. We see no 

issue with the district court finding Rachael to be in contempt of the parenting plan, and at the 

same time entering a temporary order placing restrictions on visits to address issues that had been 

raised in the contempt proceedings. A court’s continuing jurisdiction over a dissolution decree 

includes the power to provide equitable relief in a contempt proceeding. Martin v. Martin, 294 

Neb. 106, 881 N.W.2d 174 (2016). Where a situation exists that is contrary to the principles of 

equity and which can be redressed within the scope of judicial action, a court of equity will devise 

a remedy to meet the situation. Id. The contempt proceedings alerted the court to situations which 

it chose to remedy through the temporary order and it had the authority to do so. See Neb. Rev. 

Stat. § 42-364.15 (Reissue 2016). This assigned error fails.

Factual Findings.

Rachael argues the district court erred in sanctioning her to serve 30 days in jail without 

stating the facts on which she was determined to be in contempt of the parenting plan adopted by 

the district court. But the district court did make factual findings in its order. It stated that Rachael 

“unilaterally suspended [Shaun’s] parenting time without approval of the court.” The district court 

analyzed the evidence presented at trial, organized it into a statement of facts, and then determined 

that, based on those facts, Rachael refused to follow the district court’s order regarding parenting 
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time. The order of contempt makes clear what conduct constituted contempt in this matter, and it 

is clear to Rachael what conduct she must change in order to avoid future findings of contempt.

Attorney Fees.

Rachael argues the district court erred in sanctioning her to pay $1,500 in attorney fees in 

full by November 15, 2022, with interest accruing immediately, without allowing her to purge 

herself of the contempt. She interprets the order to pay attorney fees as part of the sanction for 

contempt of which she may purge herself, rather than an award of attorney fees. She bases this 

interpretation on its inclusion in the portion of the order entitled “Sanction.” While we understand 

her argument, we interpret the order as imposing a jail sentence for contempt while also making a 

separate award of attorney fees to Shaun.

Neb. Rev. Stat. § 42-370 (Reissue 2016) provides that costs, including a reasonable 

attorney fee, may be taxed against a party found to be in contempt. Here, although the award of 

attorney fees is in the portion of the order that lays out the sanction for contempt, along with how 

Rachael may purge herself of the contempt, they are separate. In the sentence immediately 

following the imposition of the jail sentence to begin January 5, 2023, the district court states, “She 

is also ordered to pay [Shaun’s] attorney’s fees in the amount of $1,500.00. Said attorney’s fees 

shall be paid in full by November 15, 2022[,] and shall accrue interest at the rate of 4.567% per 

annum, beginning immediately.” In the next paragraph, the district court provides that Rachael 

may purge herself of contempt by ensuring that the minor children attend all parenting time with 

Shaun as outlined in the parenting plan between the entry of the order of contempt and the start of 

the jail sentence, including additional make up parenting time over Thanksgiving and Christmas.

We believe the order is clear that Rachael was sentenced to 30 days’ jail as a sanction for 

being in contempt, and she may purge herself of such contempt by following the parenting time 

scheduled. The order also orders her to pay an award of attorney fees. This is separate from the 

sanction for contempt. The district court had the authority to award attorney fees, and it did not 

abuse its discretion in doing so.

Public Policy.

Rachael argues the district court’s order violates public policy and the fundamental rights 

of the custodial parent pursuant to the parties’ agreed upon parenting plan, constituting an abuse 

of discretion. She argues she suspended parenting time not to “simply harm Shaun’s visitation, but 

specifically to correct the negative environment that her children were being subjected to on 

visitation.” Brief for appellant at 35. As stated above, the issue is not the reasoning behind 

Rachael’s conduct. The issue on which she was found to be in contempt was in her decision to 

simply ignore the court ordered parental visitation given to Shaun. Rachael had other options 

available to her to address the harm she believed was being caused to her children that would not 

have been in violation of the court order. She chose not to exercise those options. She made the 

decision to unilaterally suspend visitation, and the district court correctly determined that such 

action was a willful violation of a court order.
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CONCLUSION

We find no abuse of discretion in the district court’s order finding Rachael in contempt and 

in awarding attorney fees to Shaun. We affirm the judgment of the district court.

AFFIRMED.