Lawson v. Lawson

right to timely notice was satisfied. Without sufficient proof that
Mann was afforded procedural due process, we find that the dis-
trict court erred in finding that Mann received adequate notice
of the March 21 hearing and in permitting the hearing to con-
tinue without Mann being present. We reverse the court’s order
modifying the decree of paternity and remand the case back to
the district court for a new hearing on Rich’s motion to modify
the decree of paternity.
Because we find insufficient evidence to establish that Mann
was provided with timely notice of the March 21, 2007, hearing
and we remand the case for further proceedings, we decline to
address Mann’s remaining assignments of error. See Wagner v.
Union Pacific RR. Co., 11 Neb. App. 1, 23, 642 N.W.2d 821,
841 (2002) (“[a]n appellate court is not obligated to engage in
an analysis which is not needed to adjudicate the case and con-
troversy before it”).
VI. CONCLUSION
Upon our de novo review of the record, we find insufficient
evidence to establish that Mann received notice of the hearing
on Rich’s motion to modify the decree of paternity. We find that
Mann was not afforded procedural due process, and we reverse
the order of the district court which modified the decree of
paternity and remand the case for a new hearing on the issue of
custody of the parties’ minor children.
R eveRsed and ReManded foR
fuRtheR pRoceedinGs .
david e. lawson , appellant , v .
bRenda lawson , appellee .
753 N.W.2d 863
Filed July 22, 2008. 	No. A-07-1158.
1. Modification of Decree: Appeal and Error. Modification of a dissolution decree
is a matter entrusted to the discretion of the trial court, whose order is reviewed
de novo on the record, and which will be affirmed absent an abuse of discretion
by the trial court.
854 	16 NeBRASkA APPeLLATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
3. Contempt: Final Orders: Appeal and Error. An appellate court, reviewing a
final judgment or order in a contempt proceeding, reviews for errors appearing on
the record.
4. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, the inquiry is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
5. Contempt: Appeal and Error. A trial court’s factual finding in a contempt pro-
ceeding will be upheld on appeal unless the finding is clearly erroneous.
6. Contempt: Proof. A party’s contempt must be established by proof beyond a rea-
sonable doubt.
Appeal from the District Court for Cass County: R andall
l. R ehMeieR, Judge. Affirmed as modified, and cause remanded
with directions.
Charles M. Bressman, Jr., of Anderson & Bressman Law
Firm, P.C., L.L.O., for appellant.
No appearance for appellee.
Julie e. Bear, of Reinsch, Slattery & Bear, P.C., L.L.O., for
children.
inbody, Chief Judge, and iRwin and caRlson, Judges.
inbody, Chief Judge.
INTRODUCTION
David e. Lawson contends that the Cass County District
Court erred in denying his motion for enforcement of visita-
tion and application for contempt against his ex-wife, Brenda
Lawson, for allegedly interfering with his visitation rights. For
the reasons set forth herein, we affirm as modified, and remand
the cause with directions.
STATeMeNT OF FACTS
David and Brenda were divorced on August 29, 2005, with
Brenda granted custody of the parties’ two minor children, Davis
e. Lawson, born August 29, 1992, and Charlene M. Lawson,
born August 27, 2001, subject to David’s rights of visitation
pursuant to the parties’ stipulated parenting plan which was
LAWSON v. LAWSON 	855
Cite as 16 Neb. App. 854

incorporated, by reference, into the dissolution decree. David’s
visitation consisted of one evening during the week, every other
week, from 5 until 8 p.m.; every other weekend from Friday at
5 p.m. until Sunday at 8 p.m.; and alternating holidays. each
party was also granted unlimited telephone contact when the
children were not in that party’s physical custody. The divorce
was contentious, and David and Brenda’s relationship has con-
tinued to deteriorate since the entry of the dissolution decree.
David’s relationship with his children deteriorated following the
divorce also, but Brenda and David each contend that the other
was mostly to blame for the decline.
Almost 1 year after the divorce, on August 9, 2006, David
filed a motion for enforcement of visitation pursuant to Neb.
Rev. Stat. § 42-364.15 (Reissue 2004), alleging that Brenda has
engaged in parental alienation and interfered with his relation-
ship with the parties’ minor children in the following ways,
among others: by repeatedly making derogatory, demeaning, and
disparaging statements about David; by making false allegations
and filing reports with governmental agencies relating to alleged
abuse of the parties’ children; by mailing correspondence to
David with stamps stating “‘Stop Family Violence’” in a man-
ner intended to harass and/or provoke him; by refusing to have
the minor children available for visitation; and in moving from
Brenda’s residence and refusing to provide David with a tele-
phone number or an address where he can contact the children.
David requested enforcement of the decree, that Brenda pay a
bond to insure her compliance with the provisions of the dissolu-
tion decree, attorney fees and costs, and further, any other relief
as the court deemed equitable. A hearing thereon was held on
August 2 and September 6, 2007.
Barbara Jean Ray testified that she and her husband socialized
with the Lawsons when the Lawsons were married. She testified
that prior to the divorce, Davis was respectful toward David
and well behaved and that David and Davis spent time together
camping and hunting. Likewise, Mark Tincher testified that he
has known the Lawsons for 10 to 12 years. he testified that prior
to the divorce, Davis was respectful and well mannered and that
when he observed Davis and David together, they acted appro-
priately and appeared to have fun together.
856 	16 NeBRASkA APPeLLATe RePORTS

David testified that prior to the parties’ divorce, he spent a
lot of time with his children and they had strong, good relation-
ships. David stated that he and Davis used to spend time together
mushroom hunting, camping, riding four-wheelers, and attend-
ing auctions and that he taught Davis how to drive a pickup and
how to work on equipment. David stated that he reviewed Davis’
report cards, helped him with his homework, and met with his
teachers. David and Charlene spent time together going to a
few auctions, mushroom hunting, playing with dogs, and riding
some of David’s work equipment.
David claims that since the parties’ divorce, Brenda has inter-
fered with his visitation on more than one occasion. Brenda
denies interfering with David’s visitation and claims that it is
not true that she wants to keep Davis and Charlene from seeing
David, although she believed that the last time that David had
visitation with his children was at the end of 2006.
Brenda admitted that she has told several people, including
professionals, that David abused her and the minor children. She
further reported that she suspected that David is a child abuser.
She claimed that she saw David abuse Davis both physically and
verbally. She further admitted that after she moved into a shelter
during the summer of 2006, David did not have any visitation
with the children for several months. David testified that during
the time Charlene made allegations to Child Protective Services,
which charges were dismissed, David received very little visita-
tion for a period of 9 months. David testified that since the entry
of the dissolution decree, he has had a total of six visitations
with Davis in 3 years.
According to Brenda, she would drive the children to visita-
tion with David, and Davis, who was 13 or 14 years old, would
refuse to get out of the car. She stated that although she would
tell him that he needed to go because the visitations were court
ordered and she would promise him a “pizza night,” Davis still
refused to go.
Despite the fact that there was court-ordered counseling with
Dr. Joseph Rizzo, Brenda canceled several appointments with
him and took the minor children to other counselors without
notifying David. According to David, he missed the first thera-
peutic visitation with Charlene because he did not understand
LAWSON v. LAWSON 	857
Cite as 16 Neb. App. 854

that the session was scheduled and because he was waiting for
confirmation of the appointment, which never came. Since then,
David has had two visits with Charlene at the therapist’s office.
According to David, he and Charlene got along fine and were
happy to see each other.
David admitted that during the last 2 years, he had not sent
his children any birthday gifts or cards or Christmas gifts, but
stated that he did not know where they lived. he further stated
that he did not call his children, because until 3 or 4 months ago,
he did not have any telephone numbers for them. he further tes-
tified that since he has obtained the telephone numbers, he has
not called, because he is afraid that he will get arrested. David
testified that although he was recently married, he did not invite
his children to his wedding.
David testified that he has disciplined Davis by talking to
him, but that he has also spanked him on the bottom with his
hand and with a belt. David further testified that Brenda often
sent him letters with stamps on them that stated “Stop Fam-
ily Violence.”
Brenda acknowledged that she does not have a disability
which prevents her from working, but that she is not working
because she is a full-time student. She further admitted that
David paid her $25,000 pursuant to the dissolution decree, the
day after the decree was entered. Despite being ordered by the
court to pay $1,500 of Dr. Glenda Cottam’s fees, at the time
of the August 2007 hearing, Brenda had not paid any of that
amount. however, Brenda admitted that David was current on
his child support. Further, David has paid for all of the counsel-
ing services by Rizzo and he paid the $1,500 court-ordered fee
for Cottam.
Rizzo, a licensed clinical psychologist, testified that his prac-
tice includes helping people dealing with family problems,
divorce problems, and reunification of children following a
divorce. Rizzo testified that he was retained to make an assess-
ment and to try to assist in the relationship between David and
the minor children. Rizzo testified that Brenda and David’s
divorce was a very high conflict divorce and that Davis was
an anxious and very angry child and was very frank about not
wanting to see David. Rizzo testified that Brenda was very
858 	16 NeBRASkA APPeLLATe RePORTS

injured and bitter toward David and that Brenda was not follow-
ing the parenting plan. Further, Rizzo noted that in July 2007,
Davis’ anger was becoming more intense toward David, and
that because there was no real contact with David which would
account for the increase, the increased anger had to be attribut-
able to a different source. Rizzo further testified that parental
alienation was occurring with respect to Brenda’s alienating the
minor children against David. Rizzo also testified that during
one of Davis’ final meetings with him, Davis confronted him
about one of the letters that Rizzo had sent to Davis’ parents;
Davis told Rizzo that Brenda had given Davis the letter and that
he had read it.
The other licensed clinical psychologist, Cottam, submitted
a report which was received into evidence. This report reflects,
in part:
I believe that this case may be rather typical for a high
conflict family. My impression is that [David] probably
does have an anger problem (as well as an addiction to
Percocet) - and has said/done things to [Brenda] and possi-
bly to the children - so that Davis may have some genuine
dislike of his father. [David] probably lacks insight into
how his own behaviors have contributed to this sad family
situation - in which his son does not want to see him. On
the other hand, [Brenda] is obviously so angry, vindictive,
and dramatic that I believe she has probably exaggerated
her claims of being a “victim” - to her own benefit. I have
no doubt that she has shared her negative impressions
of [David] with one or both of the children. I believe she
will try to sabotage any effort to improve relations between
[David] and the children. I perceive both parents as being
very “gamey” - despite their best efforts to make a posi-
tive impression in my office. Both parents need individual
counseling. The children are horribly in the middle of this
conflict - and, if they are like most children, they will have
the strongest alliance to the parent with whom they reside
- in this case, [Brenda].”
Davis, who was 15 years old at the time of the hearing, testified
that he had been both physically and verbally abused by David
a couple of times each week for as long as he could remember.
LAWSON v. LAWSON 	859
Cite as 16 Neb. App. 854

Davis further testified that he had personally witnessed David
physically abuse Brenda. Davis testified that he was hit with
screwdrivers and rubber tie-down straps. Davis described one
occasion when he accidentally drove a four-wheeler over a stick
and got the stick lodged in the four-wheeler’s fan. Davis claims
that upon removing the stick from the four-wheeler, David used
the stick to hit him on the back and the arms.
Davis further testified that he did not wish to exercise any form
of visitation with David at that time, including therapeutic visita-
tion, because Davis did not feel that the therapeutic visitation was
helpful in repairing his relationship with David. Davis acknowl-
edged walking out of the scheduled visits with Rizzo.
Davis claims that Brenda encourages him to attend visitations
with David, but that he does not want to talk to David, attend
visitations, or have a good relationship with David because of
things that David has done in the past. he further claims that
Brenda never says bad things about David to him and never talks
about David. Davis further stated that Brenda showed him one
of the letters written by Rizzo, but Davis stated that he did not
read the letter. Brenda testified that she allowed Davis to read
correspondence from Rizzo.
On October 4, 2007, the district court declined to hold Brenda
in contempt, finding that
although the court believes that [Brenda] has helped sabo-
tage [David’s relationship] with the children, the court
further believes that [David] is equally at fault with regard
to creating the problems that are confronting him with
regard to visitations at this time. Accordingly, the court
does not find that it would be proper to find [Brenda] in
contempt to force the visitations. . . . [T]he same may be
counterproductive at this time without further intervention
and the restoration of a relationship between [David] and,
in particular, Davis.
Regarding the motion to enforce visitation, the court found
that Brenda shall not interfere with David’s relationship with
the minor children, that she shall not make any negative remarks
about David to the minor children, and that she shall encourage
the children to exercise their visitations with David. No other
860 	16 NeBRASkA APPeLLATe RePORTS

relief was granted pursuant to David’s motion to enforce visita-
tion. David has timely appealed to this court.
ASSIGNMeNTS OF eRROR
On appeal, David contends that the district court erred in
failing to grant his motion for enforcement of visitation and in
finding that Brenda was not in contempt of court.
STANDARD OF ReVIeW
[1,2] Modification of a dissolution decree is a matter entrusted
to the discretion of the trial court, whose order is reviewed de
novo on the record, and which will be affirmed absent an abuse
of discretion by the trial court. Finney v. Finney, 273 Neb. 436,
730 N.W.2d 351 (2007). An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Zahl v. Zahl, 273 Neb. 1043, 736
N.W.2d 365 (2007).
ANALYSIS
Denial of Motion to Enforce Visitation.
David contends that the court erred in failing to grant his
motion for enforcement of visitation.
David filed his motion for enforcement of visitation under
§ 42-364.15, which provides:
In any proceeding when a court has ordered a parent to
pay, temporarily or permanently, an amount for the support
of a minor child and in the same proceeding has ordered
visitation with any minor child on behalf of such parent the
court shall enforce its visitation orders as follows:
(1) Upon the filing of a motion which is accompanied
by an affidavit stating that either parent has unreasonably
withheld or interfered with the exercise of the court order
after notice to the parent and hearing, the court shall enter
such orders as are reasonably necessary to enforce rights of
either parent including the modification of previous court
orders relating to visitation. The court may use contempt
powers to enforce its court orders relating to visitation. The
court may require either parent to file a bond or otherwise
LAWSON v. LAWSON 	861
Cite as 16 Neb. App. 854

give security to insure his or her compliance with court
order provisions.
(2) Costs, including reasonable attorney’s fees, may be
taxed against a party found to be in contempt pursuant to
this section.
Because David brought his motion pursuant to this section,
the district court was limited in the relief which it was autho-
rized by statute to grant. The district court found that Brenda
shall not interfere with David’s relationship with the minor chil-
dren, that she shall not make any negative remarks about David
to the minor children, and that she shall encourage the children
to exercise their visitations with David. however, the court did
not grant any other relief pursuant to David’s motion to enforce
visitation. Based upon our de novo review of the record, and
the specific circumstances present in this case, we find that the
district court fashioned relief in a manner which the court found
was in the minor children’s best interests. We cannot deem the
court’s determination was an abuse of discretion.
Failure to Find Brenda in Contempt.
David contends that the district court erred in failing to find
Brenda in contempt of court for interfering with his visitation.
[3-6] An appellate court, reviewing a final judgment or order
in a contempt proceeding, reviews for errors appearing on the
record. Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d
172 (1997); Novak v. Novak, 245 Neb. 366, 513 N.W.2d 303
(1994). When reviewing a judgment for errors appearing on the
record, the inquiry is whether the decision conforms to the law, is
supported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. Klinginsmith v. Wichmann, supra; Law
Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d
303 (1997); Dillard Dept. Stores v. Polinsky, 247 Neb. 821, 530
N.W.2d 637 (1995). A trial court’s factual finding in a contempt
proceeding will be upheld on appeal unless the finding is clearly
erroneous. Klinginsmith v. Wichmann, supra; Novak v. Novak,
supra. A party’s contempt must be established by proof beyond
a reasonable doubt. Klinginsmith v. Wichmann, supra.
In the instant case, the district court declined to find Brenda
in contempt, finding that
862 	16 NeBRASkA APPeLLATe RePORTS

although the court believes that [Brenda] has helped sabo-
tage [David’s relationship] with the children, the court
further believes that [David] is equally at fault with regard
to creating the problems that are confronting him with
regard to visitations at this time. Accordingly, the court
does not find that it would be proper to find [Brenda] in
contempt to force the visitations. . . . [T]he same may be
counterproductive at this time without further intervention
and the restoration of a relationship between [David] and,
in particular, Davis.
We cannot say that this determination was arbitrary, capri-
cious, or unreasonable. Therefore, we affirm the district court’s
decision in this regard. however, because we believe that Brenda
needs some motivation in order to adhere to her obligations
under the dissolution decree and the district court’s October 4,
2007, order, we find that she shall be required to post a cash
bond to ensure her compliance with the district court’s orders.
If Brenda does not comply with the district court’s orders, she
is subject to forfeiting the bond. We remand the cause to the
district court for a determination of an appropriate amount for
the cash bond.
CONCLUSION
In sum, we find that due to the specific circumstances pres-
ent in this case, the district court did not abuse its discretion
in failing to grant David broader relief pursuant to his motion
to enforce visitation. We further find that the district court’s
failure to find Brenda in contempt was not arbitrary, capricious,
or unreasonable. however, we do find that Brenda should be
required to post a cash bond to ensure her compliance with the
district court’s orders, and we remand the cause for the district
court to determine an appropriate amount of that cash bond.
Therefore, the order of the district court is affirmed as modified
and this cause is remanded with directions.
affiRMed as Modified , and cause
ReManded with diRections .
iRwin, Judge, concurring in part, and in part dissenting.
I concur with the majority’s analysis and affirmance of the
district court’s denial of David’s motion for enforcement of
LAWSON v. LAWSON 	863
Cite as 16 Neb. App. 854

visitation and refusal to find Brenda in contempt of court.
Despite agreeing with the majority on all of these findings, I
write separately because I cannot agree with the final paragraph
of analysis in the majority opinion, in which paragraph the
majority, without explanation, concludes that Brenda should
be required to post a cash bond to ensure compliance with the
very orders that were the subject of the enforcement and con-
tempt issues.
With respect to David’s motion for enforcement of visita-
tion, I agree that the record presented supports the conclusion
that the district court fashioned relief in a manner which was
in the minor children’s best interests and did not abuse its dis-
cretion. The majority notes the requirements of Neb. Rev. Stat.
§ 42-364.15 (Reissue 2004) and notes that consistent with that
statute, the district court ordered Brenda to not interfere with
David’s relationship with the children, to not make any nega-
tive remarks about David to the children, and to encourage the
children to exercise visitations with David. The majority further
concludes that under the record presented and “the specific
circumstances present in this case,” the relief fashioned was
appropriate. Thus, there was no abuse of discretion or other error
concerning the district court’s ruling on the motion for enforce-
ment of visitation. I agree.
With respect to the contempt issue, I also agree that the
record presented supports the conclusion that the district court’s
decision was not arbitrary, capricious, or unreasonable, and the
record supports the district court’s finding that the visitation
problems have been the fault of both parties. Indeed, the lengthy
factual background provided by the majority supports the dis-
trict court’s conclusions. The district court was presented with
evidence that Brenda had encouraged the children to exercise
visitation, despite her assertions that David had abused them.
There was evidence presented that Davis refused to go, despite
Brenda’s encouragement. Davis was 15 years old at the time of
the hearing, and he testified that he had been both physically
and verbally abused by David weekly for as long as he could
remember, and Davis recounted incidents involving being struck
with screwdrivers and rubber tie-down straps. Davis testified
that he did not wish to exercise any form of visitation with
864 	16 NeBRASkA APPeLLATe RePORTS

David. Further, there was conflicting psychological evidence
presented, including one report that David has an anger problem
contributing to Davis’ dislike and desire not to exercise visita-
tion. All of this evidence led the majority to affirm the district
court’s finding that both parties have been at fault and that it was
inappropriate to hold Brenda in contempt. I agree.
Despite affirming every finding and conclusion of the dis-
trict court, in the final paragraph of the analysis, the majority
determines that Brenda should be required to post a cash bond
to ensure her compliance with the visitation order, but provides
no rationale or explanation to support such a conclusion. Upon
a de novo review of the record presented in this case, the major-
ity has concluded that there was no abuse of discretion, no error
appearing on the record, and no clearly erroneous factual deter-
mination. The majority has concluded that the decision of the
district court was supported by competent evidence and was not
arbitrary, capricious, or unreasonable. The majority has affirmed
the district court’s determination that both parties were at fault
concerning the visitation issues, and the evidence presented and
recounted in the factual background of the opinion supports that
conclusion. Despite all of this, the majority modifies the district
court’s order and requires Brenda to post a cash bond to secure
her compliance with the visitation order.
Section 42-364.15 provides that the district court “may”
require either parent to file a bond or otherwise give security to
ensure his or her compliance with the court’s visitation orders.
In this case, the district court chose not to require either parent
to file a bond or other security, which was consistent with the
court’s finding that both parties were at fault and that Brenda
was not in contempt. It is fundamental in this state that the word
“may,” when used in a statute, is given its ordinary, permissive,
and discretionary meaning unless it would manifestly defeat
the statutory objective. State v. County of Lancaster, 272 Neb.
376, 721 N.W.2d 644 (2006). When the word “may” appears,
permissive or discretionary action is presumed. Id. There is
no assertion that any statutory objective would be manifestly
defeated by giving the word “may” in § 42-364.15 its ordi-
nary and discretionary meaning. As such, § 42-364.15 grants
the district court discretion to impose a bond, and its decision
LAWSON v. LAWSON 	865
Cite as 16 Neb. App. 854

in that regard should be upheld in the absence of an abuse of
that discretion, something that the majority has not suggested in
its analysis.
Section 42-364.15 required the district court to enter such
orders as were necessary to enforce the rights of the parents.
The court did this, and this court has found the court’s orders to
be appropriate. Section 42-364.15 grants the district court dis-
cretion to use contempt powers to enforce its orders. The court
declined to exercise this discretionary power, finding that both
parties were at fault, and this court has found that the court did
not abuse its discretion or otherwise err in so finding. Section
42-365.15 also grants the district court discretion to require a
bond to secure compliance with its orders. The court declined
to exercise this discretionary power, and without a finding that
the court abused its discretion in some fashion, this court should
affirm that decision as well. Inasmuch as the majority has found
no abuse of discretion—and no clear error or other error appear-
ing on the record—and has provided no rationale to support
imposing a bond in a case where both parties were at fault and
evidence was presented to support the district court’s holdings,
I cannot join in the majority’s imposition of a bond where the
district court declined to impose one. I would affirm the district
court’s order in its entirety.
866 	16 NeBRASkA APPeLLATe RePORTS