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Deboer v. Deboer

Court of Appeals of Nebraska

March 28, 2017

Jennifer Deboer, Now Known as Jennifer Dunford, Appellee,
v.
Henk Deboer, Appellant.

         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 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.

         2. 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.

         3. 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.

         4. Rules of Evidence: Contempt. The Nebraska Evidence Rules apply generally to all civil and criminal proceedings, including contempt proceedings except those in which the judge may act summarily.

         5. 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 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.

         Appeal from the District Court for Douglas County: Gary B. Randall, Judge.

          C.G. (Dooley) Jolly, of Adams & Sullivan, PC, L.L.O., for appellant.

          No appearance for appellee.

          Riedmann, Bishop, and Arterburn, Judges.

          ARTERBURN, JUDGE.

         INTRODUCTION

         Henk deBoer appeals from an order of the district court dismissing his contempt actions against his ex-wife, Jennifer deBoer, now known as Jennifer Dunford, in the proceedings to modify their decree of dissolution of marriage. On appeal, Henk argues that the district court erred in dismissing his applications for contempt without holding a full evidentiary hearing and without providing him notice. Upon our review, we determine that the district court erred when it dismissed Henk's contempt actions without holding an evidentiary hearing. Accordingly, we reverse, and remand for an evidentiary hearing on Henk's applications for contempt.

         BACKGROUND

         Henk and Jennifer were married in 2002 and had two children during their marriage. They divorced in 2010. Pursuant to the decree of dissolution of marriage, Jennifer was awarded primary physical custody of the children, subject to Henk's parenting time. The terms of Henk's parenting time were set forth in a ...


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