CLAYTON B. SCHROEDER, APPELLANT,
MARIA A. SCHROEDER, NOW KNOWN AS MARIA A. MICHAELIS, APPELLEE
Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge.
Brandie M. Fowler and Matthew Stuart Higgins, of Higgins Law, for appellant.
C.G. " Dooley" Jolly, of Adams & Sullivan, P.C., L.L.O., for appellee.
IRWIN, RIEDMANN, and BISHOP, Judges. Bishop, Judge, concurring in part, and in part dissenting.
This appeal involves a contempt action initiated by Maria A. Schroeder, now known as Maria A. Michaelis, resulting from her belief that her ex-husband, Clayton B. Schroeder, failed to abide strictly by the terms of a custody order entered by the district court. Below is a summary of the procedural and factual background of the case.
In 2006, the district court entered a decree of dissolution, dissolving the marriage between Maria and Clayton. The decree contained a custody order and parenting plan which was to govern the parties' actions as to their daughter, Alexis
Schroeder, born in May 2004. Since the entry of the decree, there have been multiple modifications made to the original custody order and parenting plan. It is clear, simply from the number of times these parties have appeared in court requesting such modifications, that they do not communicate well [22 Neb.App. 857] with each other and that they have a contentious relationship which hinders their ability to make decisions together regarding their daughter.
The current custody order and parenting plan contains the following provision:
Both parties have further agreed that the minor child should have access to telephone contact with the non-possessory parent, and each parent should have the same degree of telephone access with the child. The parent with whom the child is staying at any one time shall assist the child in initiating calls to or receiving calls from the other parent, and shall not unreasonably interfere with such access. Telephone access shall be exercised by the non-possessory parent at reasonable times, and for reasonable durations, to take into account the child's school and extracurricular activity schedule, bedtime, and meals.
Clayton's compliance with this telephone schedule provision forms the basis of the current appeal.
In June 2013, Maria filed a motion for an order to show cause. In this motion, she alleged that Clayton had willfully failed to comply with the tenets of the telephone schedule provision and that he should be found by the court to be in contempt. Specifically, Maria alleged in her affidavit accompanying the motion:
Despite the clear and unambiguous language of the [telephone schedule provision], [Clayton] steadfastly, arbitrarily and baselessly refuses to assist Alexis in the initiation and/or receipt of telephone calls with me. In fact, when [Clayton] is exercising his parenting time with Alexis, I rarely, if ever, am afforded the opportunity to speak with Alexis. As such, I often go multiple days without any communication whatsoever with Alexis.
A hearing was held on Maria's motion for an order to show cause. At this hearing, Maria testified that she regularly attempts to telephone Alexis at least two or three times when Alexis is with Clayton, that she often does not make contact with Alexis, and that if she does make contact, the telephone calls are very short in duration. Maria testified that [22 Neb.App. 858] she believes her desire to speak with Alexis on the telephone every day that Alexis is with Clayton is " reasonable." To the contrary, Clayton testified that he believes Maria's telephone calls to Alexis are excessive, unreasonable, and place unnecessary stress on Alexis. In addition, he testified that he does not hinder Alexis' ability to speak with Maria, but, rather, leaves it up to Alexis to decide when she does and does not want to speak with Maria on the telephone.
After the hearing, the district court entered an order finding that Clayton is guilty of contempt of court for his failure to abide by the terms of the telephone schedule provision. The court indicated that it read the provision to provide each parent the right to reasonable contact with Alexis when she was in the care of the other parent. The court went on to find, " Reasonable contact . . . could be a daily contact. There's nothing wrong with a parent contacting their child on a daily basis when they don't have the child." In addition, the court's order finding Clayton in contempt also required the parties to have breakfast with each other and Alexis one time per month. The court indicated:
During this breakfast, the parties are to act respectful [sic] to each other, each
party is to tell one age appropriate joke, and have one age appropriate human interest story to discuss. The purpose of this is to demonstrate to the minor child that the two people the minor child loves the most can get along.
Clayton appealed from the district court's order. However, we dismissed this initial appeal as prematurely filed because Clayton had not been sentenced for his contempt conviction.
Upon our remand, the district court held a sentencing hearing where it sentenced Clayton to an " admonish[ment]" for his failure to comply with the telephone schedule provision. The court indicated that " [i]f there are no further violations of the Decree by [Clayton] within the next six months, the Contempt findings of this court shall be vacated." At this hearing, the court also indicated that it was going to continue to require the parties to participate in a monthly breakfast with each other and Alexis for " a period of three to four months."
[22 Neb.App. 859] Clayton has now filed a second appeal. In this appeal, he alleges that the district court erred in finding him in contempt of court for failing to abide by the terms of the telephone schedule provision and in ordering him to participate in monthly breakfasts with Maria and Alexis.
Clayton first alleges that the district court erred in finding him to be in contempt of court for his failure to abide by the tenets of the telephone schedule provision. Specifically, Clayton alleges that there was insufficient evidence to establish that he willfully disobeyed the tenets of the telephone schedule provision because such tenets were not " clear and unambiguous enough to put [him] on notice that his conduct would be in violation of [the court's order]." Brief for appellant at 17. Clayton's argument clearly has merit.
When a party to an action fails to comply with a court order made for the benefit of the opposing party, such act is ordinarily a civil contempt, which requires willful disobedience as an essential element. Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012). " Willful" means the violation was committed intentionally, with knowledge that the act violated the court order. Id. In her motion for a show cause order, Maria alleged that Clayton willfully violated the telephone schedule provision. However, this provision is not specific enough to provide either party with knowledge about exactly what was required of them. As a result, any violation of the provision on Clayton's part could not be intentional or willful.
A careful review of the language of the provision indicates that each parent was merely required to " assist the child in initiating calls to or receiving calls from the [nonpossessory] parent" and that each parent " shall not unreasonably interfere with such access." The provision does not contain a definition of what constitutes reasonable access, nor does it provide any indication of how often a nonpossessory parent should be permitted to speak with Alexis. Although the district court specifically found that daily contact with Alexis by the nonpossessory parent " could" be reasonable, this is not a specific requirement of the telephone schedule provision as it existed prior to the contempt hearing.
[22 Neb.App. 860] The evidence presented at the hearing revealed that Maria was able to speak with Alexis during her time with Clayton, just not as often as Maria would have liked. The evidence also revealed that the parties have very different ideas about what constitutes reasonable telephone access under the tenets of this provision. Given this evidence, and given the ambiguous language contained in the telephone
schedule provision, we reverse the district court's order finding Clayton to be in contempt.
Clayton also alleges that the district court erred in requiring him and Maria to participate together in a monthly breakfast with Alexis. Specifically, he alleges that neither party requested any sort of modification to the custody order and parenting plan and that, as a result, he did not have notice the court was going to order such a modification and was unable to refute the propriety of the modification. Again, Clayton's assertion has merit.
In her initial motion to the court, Maria requested the court to determine only whether Clayton was in contempt of court for violating the telephone schedule provision. She stated:
[Maria] moves the Court for an Order finding [Clayton] in contempt for willful disobedience and resistance of lawful orders of this Court, issued and directed to the parties on February 11, 2009, and on November 6, 2009, for [Maria's] attorneys fees and costs incurred in bringing this application, and all other relief as this Court deems fair, just, and equitable.
There was no request for any sort of modification to the previously entered custody order and parenting plan. The Supreme Court has previously held that absent application and notice requesting modification, a trial court does not have the power to modify a divorce decree during the course of a contempt proceeding. See Mays v. Mays, 229 Neb. 674, 428 N.W.2d 618 (1988). This rule would seem to be equally applicable to the modification of a custody order contained within a divorce decree.
Neither party requested a modification to the previously entered custody order and parenting plan. We therefore reverse [22 Neb.App. 861] the district court's decision to require the parties to participate in monthly breakfasts with each other.
In conclusion, we reverse the district court's contempt order for a failure of proof. See Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012) (explaining that finding of civil contempt requires willful disobedience). As to the " breakfast order," we reverse the district court's decision to require the parties to participate in monthly breakfasts with each other because neither party requested such a modification to the custody order and neither party had notice that such a ...