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.
Appeal and Error: Words and Phrases. An
appellate court may, at its option, notice plain error. Plain
error exists where there is an error, plainly evident from
the record but not complained of at trial, which
prejudicially affects a substantial right of a litigant and
is of such a nature that to leave it uncorrected would cause
a miscarriage of justice or result in damage to the
integrity, reputation, and fairness of the judicial process.
Constitutional Law: Courts: Jurisdiction:
Contempt. A court can issue orders that are
necessary to carry its judgment or decree into effect. The
power to punish for contempt is incident to every judicial
tribune. It is derived from a court's constitutional
power, without any expressed statutory aid, and is inherent
in all courts of record.
Contempt: Proof. Outside of statutory
procedures imposing a different standard, it is the
complainant's burden to prove civil contempt by clear and
from the District Court for Boyd County, Mark D. Kozisek,
Judge, on appeal thereto from the County Court for Boyd
County, Alan L. Brodbeck, Judge. Judgment of District Court
reversed and remanded with directions.
Neb.App. 939] Lyle J. Koenig, of Koenig Law Firm, for
D. Cwach, of Birmingham & Cwach Law Offices. P.L.L.C, for
Chief Judge, and Riedmann and Welch, Judges.
Weeder appeals from the decision of the Boyd County District
Court affirming the county court's order finding that he
had not complied with a mediation agreement, which was
entered as a judgment, requiring him to repair his half of a
boundary fence and awarding Richard Muller $4, 998.30. He
also appeals the district court's order granting
Muller's cross-appeal and awarding Muller an additional
$1, 417.50 for the cost of tree and brush removal. Having
determined, based upon plain error review, that the county
court applied the wrong standard of proof in connection with
the evidentiary hearing, placing the burden of proof on
Weeder, we reverse the district court's order and remand
the cause with directions.
2013, Muller obtained real property in Boyd County, Nebraska,
which property shares a fence line with property owned by
Weeder. In 2014, both Muller and his brother determined that
the fence "was beyond repair," leading Muller to
replace his half of the fence. After Weeder refused to
replace his part of the fence, Muller filed a fence dispute
complaint in the Boyd County Court requesting that Weeder be
ordered to pay him $5, 959.34 "and costs of this action
for construction, repair or maintenance of a division fence
between adjoining properties." The parties agreed to
attend mediation and reached an agreement on May 26, 2015.
The mediation agreement provided, in relevant part:
(1) The right hand rule is agreed to as [delineating] the
fence responsibility for each party.
(3) [26 Neb.App. 940] Weeder will clear trees, shrubs[, ]
etc[.] that could damage the fence from his portion of the
fence. Weeder will repair or replace his portion of the fence
such that the fence will be a 4 wire fence complying with
current state statutes.
(6) If Weeder fails to complete the actions described in
paragraph 3 by October 15, 2015, Muller may complete those
actions. In the event that Muller complete[s] the actions
required in paragraph 3[, ] Muller shall be entitled to the
entry of a judgement against Weeder in an amount equal to ...