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Nebraska Supreme Court Advance S

304 Nebraska Report

KREJCI v. KREJCI

Cite as 304 Neb. 302

Mark S. Krejci, appellant

Christina Krejci, appell

___ N.W.2d ___

Filed October 18, 2019. No. S-18-908.

1. Appeal and Error. As a threshold matter, an appellate court must 

determine what assignments of error were properly raised and argued 

on appeal.

2. ____. The cross-appeal section of an appellate brief must set forth a 

separate title page, a table of contents, a statement of the case, assigned 

errors, propositions of law, and a statement of the facts, and when a brief 

of an appellee fails to present a proper cross-appeal, an appellate court 

declines to consider its merits.

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 is reviewed for abuse of discretion.

4. Judges: Words and Phrases. A judicial abuse of discretion exists when 

a judge, within the effective limits of authorized judicial power, elects 

to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial 

right or a just result in matters submitted for disposition through a judicial system.

5. Contempt. Civil contempt proceedings are instituted to preserve and 

enforce the rights of private parties to a suit when a party fails to comply with a court order made for the benefit of the opposing party.

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

element of contempt; “willful” means the violation was committed 

intentionally, with knowledge that the act violated the court order.

Nebraska Supreme Court Online Library

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

12/20/2019 09:07 AM CST
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KREJCI v. KREJCI

Cite as 304 Neb. 302

7. Contempt: Presumptions: Proof. Outside of statutory procedures 

imposing a different standard or an evidentiary presumption, all elements of contempt must be proved by the complainant by clear and 

convincing evidence.

8. Visitation: Statutes. In Nebraska, grandparent visitation is controlled 

by statute.

9. Due Process: Notice. It is fundamental to due process that a person 

has reasonable notice and an opportunity to be heard appropriate to the 

nature of the proceeding and the character of the rights which might be 

affected by it.

Appeal from the District Court for Douglas County: J.

Michael Coffey, Judge. Affirmed in part, and in part reverse

and vacated.

Edith T. Peebles, of Brodkey, Cuddigan, Peebles, Belmont & 

Line, L.L.P., for appellant.

Barry S. Grossman for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Miller-Lerman,

NATURE OF CASE

After the father of two children passed away in 2014, the 

children’s paternal grandfather obtained a decree for grandparent visitation in 2016. On one planned visit in 2018, the 

children refused to visit their grandfather and the mother 

was unable to compel them. The grandfather brought a civil 

contempt proceeding against the mother, and the mother filed 

a complaint for modification of grandparent visitation. With 

regard to the contempt proceeding, following a hearing, the 

Douglas County District Court found that the mother did not 

willfully and contumaciously violate the visitation decree. 

Although the court dismissed the complaint for modification and did not hold a separate hearing on modification, it 

ultimately modified the decree to, inter alia, reduce summer visitation with the grandfather. The grandfather appeals, 
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KREJCI v. KREJCI

Cite as 304 Neb. 302

and the mother attempts to cross-appeal. We affirm the dismissal of the complaint for contempt but vacate the order of 

modification.

STATEMENT OF FACTS

At the time the proceedings giving rise to this appeal were 

initiated, the minor children—a girl who was 15 years old and 

a boy who was 11 years old—lived in Nebraska with their 

mother, Christina Krejci. The biological father of the two children died in 2014. Following his death, Mark S. Krejci, the 

children’s paternal grandfather, sought and obtained a decree 

for grandparent visitation under Neb. Rev. Stat. § 43-1802(1) 

and (2) (Reissue 2016). The decree, filed in December 2016, 

ordered visitation that included 17 consecutive days each summer and part of a weekend every 3 months, or as agreed in 

advance by the parties in writing. Mark and his wife live in 

Florida. Visits under the decree went smoothly until May 

19, 2018.

Prior to the May 19, 2018, event from which this action 

arises, the parties made arrangements for Mark and his wife to 

visit. As planned, Mark and his wife flew to Omaha, Nebraska, 

in May 2018. However, the children informed Christina that 

they did not want to visit with the grandfather because May 

19 was the date of their deceased father’s birthday. The grandfather and his wife made several attempts to contact Christina 

to pick up the children, and Christina replied, generally, that 

the birthday was “a touchy day for all of [us]” and that she 

felt it was “hard . . . to force them to go somewhere they don’t 

want to [go]” and she did not want to “add to the[ir] pain.” 

The grandfather was ultimately unable to exercise his visitation on May 19.

The grandfather brought a civil contempt proceeding and 

complaint for interference of visitation against Christina, and 

Christina filed a complaint for modification of the visitation 

decree. The district court dismissed the motion for modification on its own motion without holding a separate hearing 
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KREJCI v. KREJCI

Cite as 304 Neb. 302

because it found that it lacked jurisdiction “to allow grandparent visitation to take place or not take place upon the wishes of 

the minor children.”

As part of the hearing on the civil contempt action to determine whether Christina had willfully and contumaciously violated the court’s visitation order, the granddaughter appeared 

in chambers. She testified that Christina had not told her not 

to visit her grandfather. She testified that on May 19, 2018, 

“I didn’t even want to be around my mom” and “I just think 

that on that day I should have been asked and not told” to 

have the visitation. She testified that she understood that her 

brother felt similarly. In addition to her objections to exercising grandparent visitation on her father’s birthday, she generally expressed that she did not wish to be out of town for as 

long in the summer as in the past because a lengthy visitation 

affected her ability to work a summer job, complete driver’s 

education classes, and participate in school activities. She 

testified in particular that she was not able to participate in 

cheerleading because of the grandparent visitation schedule. 

However, she acknowledged that visitation with her grandfather was an “important ingredient” to sustaining a relationship with him.

The record also contained email and text message exchanges 

between Christina and Mark and Christina and Mark’s wife in 

which Christina raised concerns that the length of visitation 

was “a really long time for them to be gone.” Mark submitted 

photographs showing the vacations the children had enjoyed 

with him and correspondence showing his efforts to arrange 

the visitation according to the decree.

In an order filed July 2, 2018, the district court found 

that Christina had not interfered with visitation and had not 

willfully and contumaciously violated the visitation decree. 

Accordingly, the court dismissed the complaint for contempt 

and for interference of visitation. In the same order, the district court determined that in light of the children’s ages, the 
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KREJCI v. KREJCI

Cite as 304 Neb. 302

children’s desire to remember their deceased father privately 

on his birthday, and the summer activities that children have 

as they get older, the decree of grandparent visitation should 

be modified. The order modified the decree so that future 

visitation would not include the date of the deceased father’s 

birthday or the anniversary of his death and that summer visitation would be reduced from 17 days to 8 days of continuous 

vacation visitation.

Mark appeals, and Christina attempts to cross-appeal.

ASSIGNMENTS OF ERROR

On appeal, Mark claims, summarized and restated, that 

the district court erred when it (1) determined that Christina 

was not in contempt and (2) modified the decree of grandparent visitation.

[1,2] Christina also attempts to raise a cross-appeal related 

to her complaint to modify the decree. As a threshold matter, 

we must determine what assignments of error were properly 

raised and argued on appeal. In re Estate of Graham, 301 Neb. 

594, 919 N.W.2d 714 (2018). Neb. Ct. R. App. P. § 2-109(D)(4) 

(rev. 2014) provides:

Where the brief of appellee presents a cross-appeal, it 

shall be noted on the cover of the brief and it shall be set 

forth in a separate division of the brief. This division shall 

be headed “Brief on Cross-Appeal” and shall be prepared 

in the same manner and under the same rules as the brief 

of appellant.

Thus, the cross-appeal section of an appellate brief must set 

forth a separate title page, a table of contents, a statement 

of the case, assigned errors, propositions of law, and a statement of the facts. In re Estate of Graham, supra. However, 

Christina’s cross-appeal section fails to set forth a separate 

title page and a table of contents. When a brief of an appellee 

fails to present a proper cross-appeal pursuant to § 2-109, as in 

this case, we decline to consider its merits. See In re Estate of 

Graham, supra.
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KREJCI v. KREJCI

Cite as 304 Neb. 302

STANDARD OF REVIEW

[3,4] 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 is reviewed for abuse of discretion. Martin v. Martin, 

294 Neb. 106, 881 N.W.2d 174 (2016). A judicial abuse of 

discretion exists when a judge, within the effective limits of 

authorized judicial power, elects to act or refrain from acting, 

but the selected option results in a decision which is untenable 

and unfairly deprives a litigant of a substantial right or a just 

result in matters submitted for disposition through a judicial 

system. Id.

ANALYSIS

Contempt.

Mark claims that the district court erred when it determined 

that Christina was not in contempt of the decree of grandparent 

visitation as a result of the May 19, 2018, event. We find no 

merit to this assignment of error.

[5-7] We recently described civil contempt proceedings as 

follows:

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. See, Hossaini v. Vaelizadeh, 

283 Neb. 369, 808 N.W.2d 867 (2012); Smeal Fire 

Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 

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

Vaelizadeh, supra. Willful disobedience is an essential 

element of contempt; “willful” means the violation was 

committed intentionally, with knowledge that the act 

violated the court order. Hossaini v. Vaelizadeh, supra. 
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KREJCI v. KREJCI

Cite as 304 Neb. 302

Outside of statutory procedures imposing a different standard or an evidentiary presumption, all elements of contempt must be proved by the complainant by clear and 

convincing evidence. See, id.; Smeal Fire Apparatus Co. 

v. Kreikemeier, supra.

Martin v. Martin, 294 Neb. at 117, 881 N.W.2d at 182.

We are aware that a parent may use a child’s hesitation to 

visit a noncustodial person as a subterfuge for contumaciously 

interfering with the visitation. Mark relies on the event of 

May 19, 2018, to establish his claim of contempt. However, in 

Martin, we observed that a “singular event,” which is not in 

accordance with a court decree, may be defensible. Id. at 119, 

881 N.W.2d at 183. Except for this event, the record shows 

that grandparent visitation had gone smoothly. To illustrate 

this history, we refer to the order dismissing the contempt 

complaint in which the district court found “[e]vidence was 

also adduced that as recently as March of 2018 [the granddaughter] traveled to Florida to visit with her grandfather over 

spring break. Her brother was unable to attend because of a 

recent ear surgery.” This case presents a singular event, but 

not a pattern.

The district court heard the evidence and stated that the 

“primary reason” for the failure of grandparent visitation was 

the fact that it was scheduled on the deceased father’s birthday, 

which the court described as an “upsetting day.”

In its order, the district court stated: “[The granddaughter] 

testified that she and her brother were very upset because the 

visitation was to take place on the birthday of their deceased 

father. She further testified that her mother, [Christina], did in 

no way encourage them not to participate in the visitation.” 

The district court accepted this testimony and did not err in 

doing so. The district court specifically found that with respect 

to the granddaughter, “[i]t definitely was her decision not 

to visit.”

While we do not endorse the proposition that the responsibility for adhering to a visitation plan devolves to the children, 
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KREJCI v. KREJCI

Cite as 304 Neb. 302

a logical conclusion which results from the district court’s 

findings in this contempt case is that Christina did not encourage or instruct the minor children to refuse to participate in 

the grandparent visitation. The district court viewed the event 

of May 19, 2018, in the overall context of a general history 

of compliance with the decree and the unusual circumstances 

of that particular day persuaded it that Christina’s failure to 

strictly enforce the terms of the order on that date was not willful. The district court’s determination that Christina was not in 

contempt was not an abuse of discretion.

Modification.

Mark claims that the district court erred when it modified 

the grandparent visitation decree in its order filed after the 

contempt hearing. Given the procedural history of this case, we 

find merit to this assignment of error. Accordingly, we reverse 

that portion of the order of July 2, 2018, which modified 

the decree of grandparent visitation, and we vacate the order 

of modification.

[8] At common law in Nebraska and elsewhere, “‘“grandparents lacked any legal right to visitation and communication 

with their grandchildren if such visitation was forbidden by the 

parents . . . . Indeed, the parents’ obligation to allow such visitation was a moral, not a legal obligation.”’” Hamit v. Hamit, 

271 Neb. 659, 673, 715 N.W.2d 512, 525 (2006), quoting Pier 

v. Bolles, 257 Neb. 120, 596 N.W.2d 1 (1999). However, every 

state has adopted a statutory scheme permitting grandparent 

visitation under varying circumstances

[i]n part due to changing demographics and the presence 

of single-parent households in which grandparents and 

other persons “outside the nuclear family are called upon 

with increasing frequency to assist in the everyday tasks 

of child rearing,” Troxel v. Granville, 530 U.S. 57, 64, 

120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), and in part due 

to a recognition of “the importance of the grandparentgrandchild relationship in the lives of children,” Moriarty 
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KREJCI v. KREJCI

Cite as 304 Neb. 302

v. Bradt, 177 N.J. 84, 97, 827 A.2d 203, 210 (2003), cert. 

denied 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 

(2004) . . . .

Hamit v. Hamit, 271 Neb. at 673-74, 715 N.W.2d at 525. 

Thus, in Nebraska, grandparent visitation is controlled by 

statute. Id.

Modification of grandparent visitation may be ordered pursuant to § 43-1802(3), which provides: “The court may modify 

an order granting or denying such visitation upon a showing 

that there has been a material change in circumstances which 

justifies such modification and that the modification would 

serve the best interests of the child.” Because we determine, 

as explained below, that the process by which the district court 

modified the grandparent visitation plan was flawed in this 

case, we do not address the propriety of combining contempt 

and modification of grandparent visitation in one hearing upon 

proper notice.

As explained in our statement of facts, Christina filed a 

complaint to modify the decree of grandparent visitation on 

June 21, 2018. An evidentiary hearing on Mark’s complaint 

for contempt was conducted on June 28. The district court dismissed Christina’s complaint to modify on its own motion on 

July 2, because it found that it lacked jurisdiction. The result 

of the evidentiary hearing on Mark’s complaint for contempt 

was contained in the district court’s order of July 2, in which it 

dismissed the complaint but proceeded to modify the decree of 

grandparent visitation.

Mark contends in general that he did not receive proper 

notice that modification would be considered at the hearing 

of June 28, 2018, and in particular that he was denied the 

opportunity to present certain evidence that would have pertained to modification. The record is consistent with Mark’s 

contentions.

[9] It is fundamental to due process that a person has reasonable notice and an opportunity to be heard appropriate to 

the nature of the proceeding and the character of the rights 
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KREJCI v. KREJCI

Cite as 304 Neb. 302

which might be affected by it. See Fetherkile v. Fetherkile, 

299 Neb. 76, 907 N.W.2d 275 (2018). The procedural record 

in this case shows that the district court effectively dismissed 

Christina’s complaint to modify prior to the contempt hearing and that it was reasonable for the parties to conclude that 

modification was off the table. In fact, the bill of exceptions 

shows that the court stated at the commencement of the hearing on June 28, 2018, that the purpose of the hearing was to 

consider Mark’s complaint for contempt.

We agree with Mark’s contention that under the circumstances of this case, the court’s consideration and determination of modification as a consequence of the contempt hearing 

were improper due to a lack of notice and an opportunity to be 

heard. Accordingly, we reverse that portion of the order of July 

2, 2018, which modified the decree of grandparent visitation, 

and we vacate the order of modification.

CONCLUSION

For the reasons explained above, we affirm the district 

court’s ruling dismissing Mark’s complaint for contempt but 

we reverse the portion of the order which modified the decree 

of grandparent visitation and vacate the order of modification.

 Affirmed in part, and in

reversed and vacate