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State v. Jeffery T.

Court of Appeals of Nebraska

October 16, 2018

State of Nebraska on behalf of Kaaden S., A MINOR CHILD, APPELLEE,
v.
JEFFERY T. APPELLANT, AND MANDY S., APPELLEE.

         1. Paternity: Appeal and Error. In a filiation proceeding, questions concerning child custody determinations are reviewed on appeal de novo on the record to determine whether there has been an abuse of discretion by the trial court, whose judgment will be upheld in the absence of an abuse of discretion. In such de novo review, when the evidence is in conflict, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

         2. Minors: Names: Appeal and Error. An appellate court reviews a trial court's decision concerning a requested change in the surname of a minor de novo on the record and reaches a conclusion independent of the findings of the trial court.

         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. Paternity: Attorney Fees: Appeal and Error. In a paternity action, attorney fees are reviewed de novo on the record to determine whether there has been an abuse of discretion by the trial judge, and absent such an abuse, the award will be affirmed.

         5. Modification of Decree: Divorce: Child Custody. If trial evidence establishes a joint physical custody arrangement, courts will so construe it, regardless of how prior decrees or court orders have characterized the arrangement.

         [26 Neb.App. 422] 6. Child Custody. The amount of time children spend with each parent is less important than how the time is allocated when determining whether joint physical custody exists.

         7. 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.

         8. Child Custody. Joint physical custody should be reserved for those cases where, in the judgment of the trial court, the parents are of such maturity that the arrangement will not operate to allow the child to manipulate the parents or confuse the child's sense of direction, and will provide a stable atmosphere for the child to adjust, rather than perpetuating turmoil or custodial wars.

         9. Child Custody: Evidence. When considering joint custody, the focus is on the parents' ability to communicate with each other and resolve issues together.

         10. Evidence: Appeal and Error. Where credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

         11. Child Support: Rules of the Supreme Court: Appeal and Error. The Nebraska Child Support Guidelines, specifically Neb. Ct. R. § 4-215(B) (rev. 2011), estimate $480 as an ordinary amount of nonreimbursed medical expenses, and that figure is then subsumed within the amount of child support that is ordered.

         12. Minors: Names. The question of whether the name of a minor child should be changed is determined by what is in the best interests of the child.

         13. Minors: Names: Proof. The party seeking the change in surname has the burden of proving that the change in surname is in the child's best interests.

         14. Minors: Names. In Nebraska, there is no preference for a surname- paternal or maternal-in name change cases; rather, the child's best interests is the sole consideration.

         15.__:__. Nonexclusive factors to consider in determining whether a change of surname is in a child's best interests are (1) misconduct by one of the child's parents; (2) a parent's failure to support the child; (3) parental failure to maintain contact with the child; (4) the length of time that a surname has been used for or by the child; (5) whether the child's surname is different from the surname of the child's custodial parent; (6) a child's reasonable preference for one of the surnames; (7) the effect of the change of the child's surname on the preservation and [26 Neb.App. 423] development of the child's relationship with each parent; (8) the degree of community respect associated with the child's present surname and the proposed surname; (9) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and (10) the identification of the child as a part of a family unit.

         16. Contempt: Sentences. A civil sanction is coercive and remedial; the contemnors carry the keys of their jail cells in their own pockets, because the sentence is conditioned upon continued noncompliance and is subject to mitigation through compliance.

         17. Criminal Law: Contempt: Sentences. A criminal sanction is punitive; the sentence is determinate and unconditional, and the contemnors do not carry the keys to their jail cells in their own pockets.

         18. Contempt. In order for the punishment to retain its civil character, the contemnor must, at the time the sanction is imposed, have the ability to purge the contempt by compliance and either avert punishment or, at any time, bring it to an end.

         19. __. A fine is an appropriate sanction in a civil contempt proceeding so long as the contemnor may avoid the fine by complying with the court's order.

         20. __ . An unconditional fine is not an appropriate sanction in a civil contempt proceeding because the contemnor is unable to avoid the fine through his or her conduct.

          Appeal from the District Court for Jefferson County: Ricky A. Schreiner, Judge. Affirmed in part, vacated in part, and in part reversed and remanded with directions.

          Ronald R. Brackle for appellant.

          Angelica W. McClure, of Kotik & McClure Law, for appellee

          Mandy S. Pirtle, Riedmann, ...


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