Herbolsheimer v. Koenig, A-18-538.

EDITH M. HERBOLSHEIMER, NOW KNOWN AS EDITH M. WALDRON, APPELLANT, v. CHAD R. KOENIG, APPELLEE.

No. A-18-538.

NEBRASKA COURT OF APPEALS

June 25, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Dodge County: GEOFFREY C. HALL, Judge. Affirmed in part, and in part dismissed.

Alan D. Martin for appellant.

No appearance for appellee.

RIEDMANN, ARTERBURN, and WELCH, Judges.

ARTERBURN, Judge.

INTRODUCTION

Edith M. Herbolsheimer, now known as Edith M. Waldron (Edith), appeals from an order of the district court for Dodge County which denied her request to modify the custodial arrangement for the two minor children she shares with Chad R. Koenig (Chad). In denying her request, the district court found that no material change in circumstances had occurred since the previous custody order and, as such, ordered that Chad continue to have sole physical and legal custody of the children subject to Edith's reasonable right to visitation.

On appeal, Edith argues that the district court erred in denying her request to modify custody, in failing to modify her child support obligation, and in its imposition of sentence after finding Chad in contempt of a court order. Because Edith has failed to provide us with an adequaterecord to review the district court's decisions regarding modification of custody and child support, we must affirm those decisions. Further, we conclude that we do not have jurisdiction to address Edith's assertions regarding the contempt order because she appealed from the contempt action prior to a final order being entered.

BACKGROUND

Edith and Chad are the parents of two sons: one born in August 2001 and the other born in September 2004. The parties were never married. After separating, Edith and Chad reached an agreement as to custody of the children. On January 29, 2009, a stipulated order was entered granting Edith physical custody of the children, subject to Chad's parenting time, and granting both parties legal custody.

Approximately 6 months after the stipulated order was entered, in July 2009, Chad filed an application for modification of custody, alleging that a material change in circumstances had occurred since the entry of the stipulated order which would warrant awarding sole legal and physical custody of the children to him. Chad's modification action was litigated over the next 3 years. On May 23, 2013, the district court entered its order granting Chad's application for modification. The court found that a material change in circumstances regarding the ongoing safety, welfare, and best interests of the children had occurred since the entry of the stipulated order. The court awarded Chad sole legal and physical custody of the children. It also ordered Edith to pay child support.

Edith appealed to this court from the district court's May 2013 modification order. See Herbolsheimer v. Koenig, No. A-13-536, 2014 WL 1584493 (Neb. App. April 22, 2014) (selected for posting to court website). Ultimately, we concluded that the district court did not abuse its discretion in modifying the stipulated order by awarding Chad sole legal and physical custody of the children. We did reverse the district court's child support order, however, after finding that there was insufficient evidence presented regarding each party's income and financial circumstances. We remanded that issue to the district court to conduct further proceedings in order to determine the parties' incomes.

Sometime during the latter part of 2015 or the first part of 2016, Edith filed a new action, apparently requesting another modification of custody. It is not clear exactly what was alleged in this new action, however, as Edith has failed to include a copy of her original pleading in our record. In May 2016, Edith filed a "Motion for Leave to File Amended and/or Supplemental Pleading(s)." In this motion, Edith alleged that her "original Motion to Modify the Divorce Decree did not fully explain all of the issues (the Material Change of Circumstances) that justified the pleading for Modification of the Decree[.]" It is not clear whether the district court granted this motion, but no amended or supplemental pleading has been included in our record.

A hearing on Edith's claims began on July 5 and 6, 2017. At the close of the evidence on July 6, the court announced that, on its own motion, it was continuing the remainder of the hearing for approximately 7 months, until February 2018. The court explained,

I want some progress to happen for the benefit of these two children . . . because I am hoping beyond all hopes that somehow I can get through to both parents, both the Motherand the Father, to try to work together to co-parent these kids, because if you don't, you're going to continue to damage them.

In the interim, the court entered a temporary order. The temporary order provided that Chad was to retain sole legal and physical custody of the children. Edith was awarded visitation with the children every other weekend and every Wednesday evening. She was also given one week of summer visitation in July 2017. Chad was ordered to attend counseling with the parties' oldest son and was ordered to attend anger management and individual counseling. Chad was also ordered to "immediately schedule appointments for [both children] to include dental, vision and general physical examination with adequate licensed healthcare providers."

On January 17, 2018, Edith filed an application for contempt of court. In the application, she alleged, among other things, that Chad had "willfully, repeatedly and contumaciously" failed to comply with the temporary order entered by the district court. Specifically, she alleged that Chad had failed "to obtain the necessary counseling, medical, dental or other evaluations or services delineated in the Temporary Order of this Court." She did note that Chad had obtained an eye exam for both boys.

On March 15, 2018, trial resumed. Prior to the start of the presentation of evidence, the court indicated:

This matter comes on for further hearing. The Court previously entered a temporary order. The matter has been continued to today, and I had an opportunity to speak with counsel in chambers. It's my understanding that we are now in [Chad]'s case in chief. And there is also a pending contempt action brought on behalf of [Edith] that needs to be resolved.

At the close of the evidence, the district court announced its decision from the bench. The court found that Edith had failed to meet her burden of proof to show that a material change in circumstances warranting a change in custody had occurred. The court explained:

Basically, what I heard is that these two boys, and I'm basing this primarily on what these educators told me, that they're doing well; that they both have problems but nothing out of the ordinary. And they're both functioning well and seem to be happy and well adjusted. So, I find that that burden has not been met as to the Complaint to Modify.

The court also found Chad to be in contempt. Specifically, the court found that Chad "is in willful and contumacious contempt of the Court's prior order relating to the fact he did not see [a counselor with his oldest son], [did not see an individual counselor for anger management], or have the children see a dentist." The court scheduled a sentencing hearing for August 3, 2018. However, the court also established a "purge plan" for Chad such that if he scheduled a dental exam for the children by June 30, 2018, and set up both an appointment for a counseling session involving both he and his oldest son and an appointment for a counseling session addressing anger management by May 31, 2018, he could avoid sentencing on the contempt conviction.

The district court entered a written order memorializing its decisions on April 30, 2018. Edith appeals from this order here.

ASSIGNMENTS OF ERROR

In her brief on appeal, Edith assigns 11 errors. For the purpose of our analysis, we consolidate these assigned errors into three general assertions. First, Edith asserts that the district court erred in failing to modify the prior custody order so as to award her sole custody of the children. Second, she asserts that the district court erred in failing to modify her child support obligation. Third, she asserts that the court erred in its imposition of a sentence for Chad after finding him to be in contempt of a court order.

STANDARD OF REVIEW

Child custody and visitation 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. Dragon v. Dragon, 21 Neb. App. 228, 838 N.W.2d 56 (2013). The same standard applies to the modification of child support. Armknecht v. Armknecht, 300 Neb. 870, 916 N.W.2d 581 (2018). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Dragon v. Dragon, supra.

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 the trial court's (1) resolution of issues of law is reviewed de novo, (2) factual findings are reviewed for clear error, and (3) determinations of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion. Patera v. Patera, 24 Neb. App. 425, 889 N.W.2d 624 (2017).

ANALYSIS

Failure to Include Operative Pleadings in Our Record.

B...