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Schroeder v. Schroeder

Court of Appeals of Nebraska

August 21, 2018

CLAYTON B. SCHROEDER, APPELLEE,
v.
MARIA A. SCHROEDER, NOW KNOWN AS MARIA A. MICHAELIS, APPELLANT.

         1. Child Custody: Appeal and Error. Child custody determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion.

         2. Judgments: Pleadings: Appeal and Error. A motion to alter or amend a judgment is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.

         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 are reviewed for abuse of discretion.

         4. Contempt: Proof. Outside of statutory procedures imposing a different standard, it is the complainant's burden to prove civil contempt by clear and convincing evidence.

         5. Child Custody. While the wishes of a child are not controlling in the determination of custody, if a child is of sufficient age and has expressed an intelligent preference, the child's preference is entitled to consideration.

         6. Judgments. In the absence of a request by a party for specific findings, a trial court is not required to make detailed findings of fact and need only make its findings generally for the prevailing party.

         7. Trial. Even where the civil procedure code mandates specific findings, it does so only upon a party's request.

         [26 Neb.App. 228] 8. Trial: Time. Motions for specific findings of fact pursuant to Neb. Rev. Stat. § 25-1127 (Reissue 2016) must be made before the final submission of the case to the court.

         9. Contempt: Words and Phrases. When a party to an action fails to comply with a court order made for the benefit of the opposing party, such an act is ordinarily a civil contempt, which requires willful disobedience as an essential element. "Willful" means the violation was committed intentionally, with knowledge that the act violated the court order.

         10. 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.

         11. Divorce: Attorney Fees: Costs. Customarily in dissolution cases, attorney fees and costs are awarded only to prevailing parties or assessed against those who file frivolous suits.

         12. Modification of Decree: Attorney Fees: Appeal and Error. In an action for modification of a dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion.

         13. Attorney Fees. Attorney fees and expenses may be recovered only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.

         14. Divorce: Modification of Decree: Attorney Fees. A uniform course of procedure exists in Nebraska for the award of attorney fees in dissolution and modification cases.

         15. Attorney Fees. The award of attorney fees depends on multiple factors that include the nature of the case, the services performed and results obtained, the earning capacity of the parties, the length of time required for preparation and presentation of the case, customary charges of the bar, and general equities of the case.

          Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge. Affirmed.

          Benjamin E. Maxell, of Govier, Katskee, Suing & Maxell. PC, L.L.O., for appellant.

          Matthew Stuart Higgins, of Higgins Law, for appellee.

          Pirtle, Riedmann, and Bishop, Judges.

         [26 Neb.App. 229] PIRTLE, JUDGE.

         INTRODUCTION

         Maria A. Schroeder, now known as Maria A. Michaelis, appeals the order of modification entered by the district court for Douglas County on June 20, 2017, and the order overruling her motion to alter or amend, filed August 7. The court denied Maria's request to hold her former husband, Clayton B. Schroeder, in contempt of court and granted Clayton's request for legal custody and attorney fees. The court denied Clayton's request to hold Maria in contempt of court. For the reasons that follow, we affirm.

         BACKGROUND

         Clayton and Maria were married in June 2002 and divorced in June 2006. Their daughter, Alexis Schroeder (Lexi), was born in May 2004. The original decree of dissolution was entered on June 8, 2006. The parties have returned to the district court for Douglas County numerous times for the purpose of modifying their decree or to allege violations of the decree by the other party.

         In the present matter, Clayton filed a complaint to modify and an application for contempt citation on March 15, 2016. He alleged that Maria had scheduled and fostered Lexi's participation in a number of activities without giving Clayton notice or obtaining his consent. He argued that third parties, including coaches and school officials, were not honoring the authority given to him by the district court in an order entered in December 2015. He argued that Maria defied his authority by interacting with third parties on Lexi's behalf ...


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