Yori v. Helms

307 Neb. 375

949 N.W.2d 325

Connie S. YORI, appellee,

v.Kirk P. HELMS, appellant.

Nos. S-19-520

S-19-840.

Supreme Court of Nebraska.

Filed October 2, 2020

Gregory D. Barton, of Barton Law, P.C., L.L.O., for appellant.

Amie C. Martinez, Lincoln, and Megan M. Zobel, of Anderson, Creager & Wittstruck, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

The district court found Kirk P. Helms in contempt of court for violating parenting provisions of a dissolution decree, imposed a suspended jail sentence, and modified terms of the parenting plan. Helms appealed, arguing that the modifications were punitive and not reasonably necessary (first appeal). While that appeal was pending, the district court entered an order of commitment and a purge order which contained a reduction in Helms’ parenting time but set the matter for a review hearing in 4½ months. Helms appealed that order (second appeal). Because the modifications involved in the first appeal were part of the equitable relief that the court was authorized to provide, we find no abuse of discretion and affirm. We dismiss the second appeal for lack of a final order.

BACKGROUND

MARRIAGE AND DISSOLUTION

Helms married Connie S. Yori in 1996, and a child was born to the marriage in July 2004. The parties subsequently sought to dissolve their marriage and entered into a mediated agreement.

On March 1, 2017, the district court entered a decree of dissolution. The decree awarded the parties joint legal and physical custody of the child. The parenting plan attached to the decree contained the terms of the parties’ mediated agreement and addressed topics such as day-to-day decisionmaking, alcohol consumption and testing, and parental responsibility and cooperation.

CONTEMPT PROCEEDINGS

Yori claimed that Helms violated provisions of the parenting plan and mediated agreement. She filed an application for an order to show cause in October 2017 and thereafter filed several amended applications. The operative pleading, filed in September 2018, alleged over 60 violations by Helms of the mediated agreement and decree of dissolution. In particular, Yori alleged that Helms violated the provisions regarding payment of expenses for the child, medical appointments for the child, cooperation between the parents, and Helms’ consumption of alcohol and compliance with alcohol testing.

Trial began in October 2018 but needed to be continued to December. In November, Helms moved to continue the hearing. The court sustained the motion, subject to provisions contained in a temporary order. Trial resumed in March 2019.

The December 2018 temporary order addressed transportation of the child and also gave Yori "final say on matters relating to the minor child's sports and athletics." It ordered that during the pendency of the proceedings, Yori or her designated representative be allowed to provide the child's transportation to and from all religious confirmation or youth group activities, educational meetings or events relating to an educational action plan, athletic practices, and athletic tournaments or games.

During a February 2019 hearing, the court clarified its intent with respect to the December 2018 temporary order. The court explained that its intent was for Yori to transport the child to the various activities, even if the activities occurred during Helms’ parenting time. The court stated that Yori "either is to return the child or, if ... Helms is present at that activity, I don't think there was any objection to him taking the child home from that activity, at least, from an email here it says you can take him home afterwards." The court repeated, "The purpose and intent of this is to make sure the child makes it to all the activities ...."

During the hearings on Yori's application for an order to show cause, a number of witnesses testified on Yori's behalf. Tim McGovern, who coached the child's basketball team with Yori, testified that during a meeting with the players’ parents, Helms said that Yori was bullying the children and should not be trusted to be in charge of their sons. It appeared to McGovern that "trying to make [Yori] look bad was the goal." McGovern testified that he observed Helms at the child's basketball tournaments and had concerns that Helms was under the influence of alcohol.

Other witnesses echoed McGovern's testimony. Jennifer Cramer, who attended the meeting mentioned by McGovern, testified that Helms told the parents that Yori was abusive to the players and to him during their marriage. Cramer complained to Helms at that meeting about his failure to bring the child to practices or games. At a May 2018 basketball tournament, Cramer observed Helms exhibiting abnormal behavior, including "flip[ping her] off" in the presence of parents and children. Another parent testified about her concerns that Helms was under the influence of alcohol at the child's basketball tournaments. She testified that she smelled alcohol on him and that she observed him "walk across the court, flipping off ... towards our area." Helms denied standing in the middle of a basketball court and flipping off the crowd. He also denied attending any of the child's basketball games or events while under the influence of alcohol. But in February 2019, Helms was arrested for driving under the influence on his way home from attending the child's basketball event. At the time of the hearing, Helms did not have a driver's license and relied on transportation by bicycle or bus or as provided by his family.

Yori testified about difficulties in obtaining reimbursement from Helms for the child's medical expenses. She sent numerous emails to Helms, requesting reimbursement and including itemizations of expenses and copies of each billing statement. Helms did not reimburse Yori because she did not send him the insurer's explanation of benefits and instead sent handwritten information and amounts. He also asked Yori to sign a release so that he could talk with the healthcare provider, but she did not do so.

The parties testified regarding issues with alcohol monitoring through Soberlink. The decree required Helms to keep Soberlink in place and to test during his parenting time at 8 a.m., 2 p.m., and 10 p.m. Six weeks after entry of the decree, Helms submitted a change request form to Soberlink, directing that Yori not be listed as a concerned party. Although a Soberlink form showed a change in the concerned party name to Helms’ sister, Helms testified that he just intended to add his sister as a contact. The same page of the form identified Yori as someone who is to receive test results. Helms testified that Yori never informed him that she was not timely receiving Soberlink reports and that he did not recall her complaining about not being listed as a concerned party.

Helms also reduced the Soberlink monitoring from "Level 2" to "Level 1" monitoring. With Level 1 monitoring, in contrast with Level 2 monitoring, Yori does not receive missed tests alerts and Helms does not have scheduled testing. Helms testified that he switched from Level 2 to Level 1 because it was his understanding that dates and times for testing could not be changed on Level 2. He felt that Level 1 would work better under the parenting agreement, because dates when the child would be with him would not stay the same all year long.

Yori testified that through the summers of 2017 and 2018, Helms routinely missed Soberlink testing at 2 p.m. on Fridays. According to Helms, he tested at all required times when the child was with him. But if his parenting time ended at 3 p.m., he would not take the 2 p.m. test unless he had to pick the child up for some reason. He admitted there was no language in the decree excusing him from taking a test at 2 p.m. on Fridays.

The decree gave Yori "final say" regarding educational and religious issues. Yori informed Helms that she wanted the child to participate in religious confirmation preparation, but she testified that Helms expressed unwillingness to allow the child to participate. Yori testified that because the child was struggling in school, his counselor and teacher devised a plan to help him which included arriving at school 30 minutes early. But of the 11 sessions during Helms’ parenting time, the child attended only 3. Yori testified that in April 2018, during Helms’ parenting time, the child was suspended from school and Helms did not inform her of a meeting with the principal and vice principal. Helms did not respond to Yori's request inquiring of the consequences for the child.

Yori had concerns about the child's attendance at athletic events. She testified that in the summer of 2017, Helms took the child to only 3 of 18 practices. She felt that Helms acted in a retaliatory fashion when he removed the child from an athletic team. Even after the court entered the temporary order allowing Yori to transport the child to and from events, Helms attempted to transport the child.

ORDER OF CONTEMPT

On May 1, 2019, the court entered an order of contempt. The court found that Helms willfully, intentionally, and contumaciously violated multiple provisions of the decree, including the obligation to not consume alcohol, to continue with Soberlink as ordered, and to comply with the parenting responsibilities and cooperation language. It also found that it had the authority to modify the decree as it related to the child in order to remedy the contempt. The court committed Helms to jail for 21 days, but suspended execution of the sentence as long as Helms complied with several terms of the order. Among others, the terms included:

• refraining from consuming alcohol through December 31, 2022;

• refraining from attending any practices for the child;

• allowing Yori or her designee to pick the child up from Helms’ house for various specified reasons and return the child following the event; and

• giving Yori "final say" on "all athletic...