State of Nebraska on behalf of Mariah B. and Renee B., minor children, appellee.
Kyle B., appellant.
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.
Contempt: Due Process: Judgments: Appeal and
Error. Though the ability to pay the purge amount in
a civil contempt proceeding is a factual question that is
reviewed for clear error, whether the facts result in a due
process violation is a question of law.
Contempt: Words and Phrases. Civil contempt
requires willful disobedience as an essential element.
"Willful" means the violation was committed
intentionally, with knowledge that the act violated the court
Contempt. If it is impossible to comply with
the order of the court, the failure to comply is not willful.
Words and Phrases: Appeal and Error.
Willfulness is a factual determination to be reviewed for
Contempt: Proof: Evidence: Presumptions.
Outside of statutory procedures imposing a different
standard, it is the complainant's burden to prove civil
contempt by clear and convincing evidence and without any
Contempt: Presumptions: Child Support. Neb.
Rev. Stat. § 42-358(3) (Reissue 2016) provides that a
rebuttable presumption of contempt shall be established if a
prima facie showing is made that court-ordered child or
spousal support is delinquent.
Neb. 760] 8. ___: ___: ___. Necessarily, the rebuttable
presumption of contempt provided by Neb. Rev. Stat. §
42-358(3) (Reissue 2016) encompasses the essential element of
Contempt: Evidence: Child Support. In
contempt proceedings, both Neb. Rev. Stat. § 42-358(3)
(Reissue 2016) and logic dictate that a valid child support
order is evidence of the parent's ability to pay the
amount specified therein.
Child Support. The parent's ability to
pay is an important consideration in setting the amount of a
child support order.
Child Support: Rules of the Supreme Court:
Presumptions. Child support established under the
Nebraska Child Support Guidelines is presumed correct, unless
one or both parties present sufficient evidence to rebut that
Trial: Witnesses: Evidence. Triers of fact
have the right to test the credibility of witnesses by their
self-interest and to weigh it against the evidence, or the
Constitutional Law: Criminal Law: Contempt: Due
Process. A criminal or punitive sanction is invalid
if imposed in a proceeding that is instituted and tried as
civil contempt, because it lacks the procedural protections
that the Constitution would demand in a criminal proceeding.
Contempt: Sentences. A present inability to
comply with a contempt order is a defense, not necessarily to
contempt, but to the sanction of incarceration.
Contempt: Judgments. When a purge order
involves payment of money, the sum required to purge oneself
of contempt must be within the contemnor's ability to pay
within the time period provided in the order, taking into
consideration the assets and financial condition of the
contemnor and his or her ability to raise money.
Contempt. Contemnors in civil contempt must
carry the keys of their jail cells in their own pockets.
Contempt: Presumptions: Child Support. The
statutory presumption of contempt under Neb. Rev. Stat.
§ 42-358(3) (Reissue 2016) is inapplicable to the
question of whether the purge plan is punitive.
Contempt: Judgments. Despite any overlap
with the finding of willful disobedience in the underlying
contempt, a court that imposes incarceration as part of civil
contempt proceedings shall make express findings regarding
the contemnor's ability to comply with the purge order.
Contempt: Proof. It is the contemnor who has
the burden to assert and prove the inability to comply with
the contempt order as a defense to incarceration.
Neb. 761] 20. ___: ___. The burden of both production and
persuasion is on the contemnor to show the present inability
___: ___. A showing of inability to comply with a purge order
entails attempts to exhaust all resources and assets or
borrow sufficient funds and the inability to thereby secure
the funds to comply with the order.
Contempt. The contemnor's inability to
comply with a contempt order cannot be voluntarily created,
for example by not diligently seeking a job at one's
___. The inability-to-pay threshold for determining that the
contemnor lacks the keys to his or her own jail cell is
higher than the indigence threshold for appointing counsel.
Thus, a finding of indigency for purposes of retaining legal
counsel does not preclude a finding that the contemnor is
able to pay whatever purge amount has been set by the court.
Child Support. The support of one's
children is a fundamental obligation which takes precedence
over almost everything else.
from the District Court for Lancaster County: Kevin R.
McManaman, Judge. Affirmed.
R. Wynner, of Olson, Zalewski & Wynner, L.L.P.. for
Kelly, Lancaster County Attorney, and Jason M. Cooper and
Braden W. Storer, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and
father appeals from an order of civil contempt for failure to
pay child support. He was found indigent for purposes of
appointment of counsel in the contempt proceedings. He
asserts that he did not willfully disobey the support order.
Further, he argues that the purge plan set forth in the
contempt order is impossible to perform, making it a punitive
rather than coercive sanction. We affirm.
Neb. 762] BACKGROUND
and Child Support Order
paternity action filed by the State due to the involvement of
the "Title IV-D Division" of the Department of Health
and Human Services (DHHS), Kyle B. was established as the
father of Mariah B. and Renee B. Genetic testing had
determined with a probability of 99.999 percent that Kyle was
the biological father of the children.
was ordered to pay $230 in child support per month beginning
on December 1, 2015. The amount of Kyle's monthly child
support obligation was established in accordance with the
child support guidelines. The district court referee
calculated that Kyle was capable of earning $8 per hour and
of working 40 hours per week, for a total monthly earning
capacity of $1, 387. By failing to respond to the State's
request for admissions, Kyle was deemed to have admitted this
earning potential. Attached to the referee's report was
evidence that Kyle had earned $4, 306.90 working at a roofing
company from October to December 2014 and had earned $3,
578.62 working there from July to September 2014.
did not attend the hearing at which evidence was submitted
pertaining to paternity and child support, and his counsel
withdrew. Kyle did not appeal from the child support order.
7, 2016, the court issued an order for Kyle to appear at a
hearing scheduled for July 7 and show cause why he should not
be in contempt for willfully failing to comply with the
December 2015 order. The order to appear required Kyle to
bring to the hearing his income tax returns for the past 3
years, as well as his last three wage statements. Kyle was
appointed counsel on July 8, 2016, upon a finding of [298
Neb. 763] indigency. On September 12, the court issued
another order to appear, at a hearing scheduled for November
2, on the order to show cause.
appeared at the November 2, 2016, hearing, represented by his
appointed counsel. At the hearing, the State introduced a
certified copy of a history of Kyle's payments to DHHS.
The document demonstrated that Kyle had never made payments
on the December 2015 order and that he was $2, 551.59 in
did not submit income tax returns, wage statements, or any
other financial documentation. The only evidence presented by
Kyle at the hearing was his own testimony. Kyle testified
that he was unemployed. Kyle stated that his "last good
job" was working as a "roof loader" for the
roofing company. ...