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Martin v. Martin

Supreme Court of Nebraska

July 8, 2016


          Appeal from the District Court for Lancaster County: Steven D. Burns, Judge.

         Matt Catlett, of Law Office of Matt Catlett, for appellant.

         Corey J. Wasserburger, of Johnson, Flodman, Guenzel & Widger, for appellee.



         Kelch, J.


         This is an appeal from an order of the district court for Lancaster County that found Rhonda J. Martin, now known as Rhonda J. Brown, in contempt of court for willfully violating the parenting provisions of her marital dissolution decree and imposed sanctions. For the reasons set forth below, we affirm.


         Rhonda and Dean P. Martin were divorced in 2002. They share legal custody of their two minor children, Taylor and Ethan Martin. Initially, Rhonda and Dean shared equal physical custody of the boys; but in 2008, the decree was modified to the effect that Rhonda now has physical custody of the boys and Dean has rights of visitation. Dean's visitation rights were modified by a parenting plan entered into by the parties; the plan was approved by the district court in December 2011.

         Pursuant to the 2011 parenting plan, Dean was to have the boys every other weekend from 5 p.m. on Friday to 7 p.m. on Sunday, for 6 weeks during the summer, and on certain holidays. In 2014, it was Dean's year to have the boys for Christmas and his parenting time was to begin at 6 p.m. on December 19 and end at 12 p.m. on December 27.

         As for transportation, Dean was to pick up the boys at the start of his parenting time from Rhonda's home in Prague, Nebraska, and Rhonda was to pick them up from Dean's home in Lincoln, Nebraska, at the conclusion of Dean's parenting time. Previously, Rhonda had taken the boys to Dean's home and he had returned them to Rhonda's home; however, Dean requested the new arrangement because Taylor's involvement in sports required Taylor to be in Prague on Friday nights and Rhonda had taken the position that she was not responsible for transporting Taylor to Dean if his sporting events went past 5 p.m. On such occasions, Rhonda would sometimes deliver Ethan to Dean at 5 p.m. and Dean would drive to Prague to retrieve Taylor after his sporting events.

         On April 3, 2015, Dean filed a motion for an order for Rhonda to show cause why she should not be held in contempt for her alleged failure to allow Dean to exercise parenting time on the following days: (a) during the weekend of December 12, 2014; (b) from December 19 to 24; (c) on January 9, 2015 (with Ethan); (d) on January 23; (e) on March 6; and (f) on March 20 and 21. At the time Dean filed the motion, the boys, Taylor and Ethan, were 16 and 15 years old, respectively.

         1. June 11, 2015, Hearing

         A hearing on Dean's motion was held on June 11, 2015. Both Rhonda and Dean testified, and various exhibits were offered and received. Much of the evidence in this case is in the form of text messages sent back and forth between the parties and their children. We reproduce the messages in their original form.

         (a) Weekend of December 12, 2014

         Under the parenting plan, Dean was to have the boys on the weekend of December 12, 2014. Taylor had a basketball game that Saturday and sent Dean several text messages on December 12 expressing his desire to travel with his team the next day.

         Dean arrived at Rhonda's house at 5 p.m. that night to retrieve the boys. The boys went outside with their bags and approached Dean's vehicle. Taylor got into Dean's vehicle, but Ethan did not. Ethan refused to get in the vehicle and returned to the house. Taylor stayed in the vehicle and talked to Dean for a few minutes before returning to the house. Rhonda testified that Taylor told her that Dean wanted to know whether it was fine if the boys stayed home that weekend. Rhonda testified that she told Ethan that she was " 'not gonna shut [her] door'" on them, but that it was up to Dean whether the boys went with him or stayed with her. According to Dean's testimony, Taylor told him that Rhonda said the boys could stay with her and that they did not have to go with Dean. Dean left without the boys.

         Dean testified that sometime after he left, he received a telephone call from Ethan and eventually spoke with Rhonda about what had happened. Dean testified that Rhonda asked him, " 'Why'd you leave? It's your parenting time. I'm kind of surprised. The boys came back in and I had no idea if there was an issue of any kind.'"

         Further, Rhonda testified, " Physically, there [was] no way that I could grab [Ethan] and shove him into the car and force him to go."

         (b) December 19 to 24, 2014

         Dean was supposed to have the children from 6 p.m. on December 19, 2014, until 12 p.m. on December 27. On December 18, Taylor sent Dean the following text message in the afternoon:

Hey I got my drivers license today for my 16th birthday. You don't have to come get us this weekend because we would like to stay home until the 24th. I can drive to ur house then, but we would like to come on the 24th by noon, stay on Christmas, and then go home on the 26th at 3:30. Please Let us know.
4:09 PM

         Without responding to Taylor, Dean forwarded the text message to Rhonda and asked whether she was going to tell Taylor and Ethan that they needed to go with him on December 19, 2014. Rhonda responded to Dean, " I've encouraged them to do so, but it sounds like they told you what they want."

         Sometime later, Rhonda sent a text message to Dean asking if everything was worked out in terms of his parenting time. Dean replied that it was all worked out and that he would retrieve the boys from their grandparents on December 24, 2014. The boys went to Dean's house on December 24 and stayed until December 26.

         (c) January 9, 2015

         Dean was supposed to have the boys over the weekend of January 9, 2015. Taylor had a basketball game that Friday, and Dean made arrangements to pick Taylor up after his game. As for Ethan, Dean drove to Rhonda's house to pick him up at 5 p.m. However, Ethan refused to go with Dean.

         At that time, Rhonda was in Missouri for a National Guard drill. Dean called Rhonda and told her that Ethan was refusing to get in his vehicle, and he asked Rhonda for help. Rhonda testified that the telephone was put on the speakerphone setting and that on speakerphone, she told Ethan that Dean had been waiting 2 weeks to see him and that he needed to go spend time with Dean. Rhonda testified that Ethan said he did not want to ...

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