In re Interest of Samantha L. & Jasmine L.

856 	284 NEBRASKA REPORTS
I n re I nterest of samantha L. and JasmIne L.,
chILdren under 18 years of age.
state of nebraska, department of heaLth and
human servIces, appeLLant, v. keLLy L.
and WILLIam h., appeLLees.
824 N.W.2d 691
Filed December 14, 2012. 	No. S-12-150.
1. Contempt: Appeal and Error. When reviewing a contempt order, an appellate
court reviews for abuse of discretion the trial court’s determination of whether a
party is in contempt and the appropriateness of the sanction it imposed.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in matters submitted
for disposition.
3. Courts. Nebraska courts, through their inherent judicial power, have the authority
to do all things necessary for the proper administration of justice.
4. Contempt: Courts. The power to punish for contempt is incident to every judi-
cial tribune.
5. ____: ____. The authority to punish for contempt is derived from a court’s con-
stitutional power, without any expressed statutory aid, and is inherent in all courts
of record.
6. Juvenile Courts. Separate juvenile courts and county courts sitting as juvenile
courts are courts of record.
7. Contempt: Courts: Notice. Before a court can exercise its inherent contempt
powers, the contemnor is entitled to reasonable notice and an opportunity to
be heard.
8. Contempt: Courts. Contempts committed in the presence of the court, also
known as direct contempts, give the court personal knowledge of the facts and do
not require the court to inform itself of the contemptuous conduct through wit-
nesses and evidence.
9. ____: ____. The events constituting indirect contempt occur outside the presence
of the court, and the court must inform itself of the facts through witnesses or
other evidence.
10. ____: ____. If the court must inform itself through witnesses or evidence
of any material facts of contemptuous conduct, then summary punishment is
inappropriate.
Appeal from the Separate Juvenile Court of Douglas County:
vernon danIeLs, Judge. Vacated and remanded for further
proceedings.
Jon Bruning, Attorney General, and John M. Baker, Special
Assistant Attorney General, for appellant.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

IN RE INTEREST OF SAMANTHA L. & JASMINE L. 	857
Cite as 284 Neb. 856
Molly Adair-Pearson for appellee Kelly L.
Matt Saathoff, of Saathoff Law Group, P.C., L.L.O., for
appellee William H.
heavIcan, c.J., WrIght, connoLLy, stephan, mccormack,
mILLer-L erman, and casseL, JJ.
mccormack, J.
NATURE OF CASE
The Nebraska Department of Health and Human Services
(DHHS) appeals from an order of the juvenile court requir-
ing DHHS to pay opposing counsel’s costs. The court took
judicial notice that for the third straight hearing, DHHS had
failed to provide opposing counsel prior notice of the exhibits
to be offered. DHHS appeals the order and asserts that the
juvenile court lacked the statutory authority to require payment
of costs.
BACKGROUND
On October 22, 2010, an amended petition was filed in the
separate juvenile court of Douglas County alleging improper
parental care of minor children Samantha L. and Jasmine L.
A hearing was held on February 28, 2011, and a review and
permanency planning hearing was scheduled for August 23.
The court ordered that all reports to be submitted at the next
hearing be provided to opposing counsel at least 3 business
days before the hearing.
At the hearing on August 23, 2011, opposing counsel
objected to reports offered by DHHS, because the reports had
not been made available 3 days prior. The court continued the
hearing for that reason.
At a hearing on October 27, 2011, DHHS again offered
reports that were not previously provided to opposing counsel.
The court sustained opposing counsel’s objection and contin-
ued the hearing for a second time.
The third attempt at a review and permanency hearing was
held on January 9, 2012. The court again sustained opposing
counsel’s objection to DHHS’ offering reports without notice.
In its order, the juvenile court noted that the continuances

858 	284 NEBRASKA REPORTS
prevented the court from making a dispositional order and that
this had an adverse impact on the permanency planning for the
children. The juvenile court then ordered opposing counsel’s
costs associated with the preparation and attendance of the
January 9 hearing, as well as the next scheduled hearing, to be
paid by DHHS.
ASSIGNMENT OF ERROR
DHHS assigns as error the juvenile court’s January 9, 2012,
order requiring DHHS to pay the costs associated with the
January 9 hearing and the subsequent scheduled hearing, argu-
ing that the order was beyond the juvenile court’s statu-
tory authority.
STANDARD OF REVIEW
[1,2] When reviewing a contempt order, an appellate court
reviews for abuse of discretion the trial court’s determination
of whether a party is in contempt and the appropriateness of
the sanction it imposed.1 A judicial abuse of discretion exists
when the reasons or rulings of a trial judge are clearly unten-
able, unfairly depriving a litigant of a substantial right and
denying just results in matters submitted for disposition.2
ANALYSIS
The issues presented by this appeal have evolved since
DHHS’ brief was filed. DHHS argued in its brief that the
juvenile code does not authorize a court to order payment of
opposing counsel’s costs. The appellees responded by char-
acterizing the court’s action as a contempt order and arguing
that the juvenile court’s contempt authority is derived inde-
pendently of the juvenile code. DHHS’ brief was silent on the
issue of contempt.
At oral argument, the contempt issue was discussed at
length. When pressed by the court, counsel for DHHS con-
ceded, and we agree, that the order was for contempt. Because
DHHS has now conceded that this order was for contempt,
1 See Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012).
2 Tyler v. Heywood, 258 Neb. 901, 607 N.W.2d 186 (2000).

IN RE INTEREST OF SAMANTHA L. & JASMINE L. 	859
Cite as 284 Neb. 856
we will address this appeal as an appeal of a contempt finding
and sanction.
[3-6] We have held that Nebraska courts, through their inher-
ent judicial power, have the authority to do all things necessary
for the proper administration of justice.3 The authority includes
the power to punish for contempt, which is incident to every
judicial tribune.4 It is derived from a court’s constitutional
power, without any expressed statutory aid, and is inherent in
all courts of record.5 Separate juvenile courts and county courts
sitting as juvenile courts are courts of record.6 Therefore, the
juvenile court does have the inherent authority to order DHHS
to pay attorney fees and costs through contempt.
[7] But, as argued by counsel for DHHS, before a court
can exercise its inherent contempt powers, the contemnor is
entitled to reasonable notice and an opportunity to be heard.7
Under Neb. Rev. Stat. § 25-2122 (Reissue 2008), “[c]ontempts
committed in the presence of the court may be punished sum-
marily; in other cases the party upon being brought before the
court, shall be notified of the accusation against him, and have
a reasonable time to make his defense.” The appellees argue
that DHHS’ failure to give notice 3 days prior to the hearing
was done in the presence of the court and was subject to sum-
mary punishment. We disagree.
[8] Contempts committed in the presence of the court,
also known as direct contempts, give the court personal
knowledge of the facts and do not require the court to inform
itself of the contemptuous conduct through witnesses and
evidence.8 The most basic form of direct contempt is when
a party verbally abuses a judge during court.9 Such direct
3 Laschanzky v. Laschanzky, 246 Neb. 705, 523 N.W.2d 29 (1994).
4 Tyler v. Heywood, supra note 2.
5 See, id.; Neb. Rev. Stat. § 25-2121 (Reissue 2008).
6 See, e.g., In re Interest of Thomas M., 282 Neb. 316, 803 N.W.2d 46
(2011); In re Interest of Tyler T., 279 Neb. 806, 781 N.W.2d 922 (2010);
In re Interest of Krystal P. et al., 251 Neb. 320, 557 N.W.2d 26 (1996).
7 See In re Interest of Thomas M., supra note 6.
8 See Tyler v. Heywood, supra note 2.
9 See id.

860 	284 NEBRASKA REPORTS
evidence of contempt allows the court to punish the offending
party summarily.10
[9,10] In contrast, the events constituting indirect contempt
occur outside the presence of the court and the court must
inform itself of the facts through witnesses or other evi-
dence.11 Even in instances of direct contempt, if the court must
inform itself through witnesses or evidence of any material
facts of the contemptuous conduct, then summary punishment
is inappropriate.12
Thus, in In re Contempt of Potter,13 we held that summary
punishment was inappropriate for an attorney who failed to
arrive at the announced time for the resumption of judicial
proceedings. Although the attorney’s tardiness was witnessed
by the court, a valid reason occurring outside the presence of
the court might explain the attorney’s tardiness. Therefore, the
contemnor had the right to reasonable notice and an opportu-
nity to be heard.14 Likewise, in In re Interest of Simon H.,15 the
Nebraska Court of Appeals directed the juvenile court to vacate
its contempt order that summarily required DHHS to pay a
$1,000 fine for filing a case plan and court report late, because
the contempt order was procedurally deficient. The lower court
could not have known why the case plan and court report were
not filed on time, because such excuses occurred outside the
presence of the court.
Here, DHHS’ failure to give notice to opposing coun-
sel occurred outside the presence of the court. Unlike In re
Contempt of Potter and In re Contempt of Simon H., the juve-
nile court had no way of directly witnessing that notice had not
been given to opposing counsel 3 days prior to the hearing. The
10 Id.
11 See id.
12 See, In re Contempt of Potter, 207 Neb. 769, 301 N.W.2d 560 (1981);
In re Interest of Simon H., 8 Neb. App. 225, 590 N.W.2d 421 (1999),
overruled on other grounds, Smeal Fire Apparatus Co. v. Kreikemeier, 279
Neb. 661, 782 N.W.2d 848 (2010).
13 In re Contempt of Potter, supra note 12.
14 Id.
15 In re Interest of Simon H., supra note 12.

PETERSON v. HOUSTON 	861
Cite as 284 Neb. 861
court became aware of this fact only after opposing counsel
raised an objection at the hearing. Furthermore, the juvenile
court could not have known why notice was not given by
DHHS, because the relevant interactions between the parties
occurred outside the presence of the court.
Despite not having firsthand knowledge of the contemptuous
conduct, the juvenile court summarily held DHHS in contempt.
The juvenile court did not give DHHS prior notice of the con-
tempt accusations, hold a civil contempt proceeding, or provide
DHHS a reasonable time to make its defense.16 Therefore,
the juvenile court abused its discretion by summarily holding
DHHS in contempt for conduct that occurred outside the pres-
ence of the court.
CONCLUSION
The juvenile court’s inherent power to issue contempt orders
is subject to the contemnor’s receiving proper notice and an
opportunity to be heard when the contempt is not commit-
ted in the presence of the court. In this instance, the juvenile
court abused its discretion by summarily imposing a sanction
for conduct that did not occur in its presence. We vacate the
January 9, 2012, contempt order and remand for further pro-
ceedings consistent with this opinion.
vacated and remanded for
further proceedIngs.
16 See § 25-2122.
tImothy L. peterson, appeLLant, v. robert p. houston,
dIrector, nebraska department of correctIonaL
servIces, state of nebraska, appeLLee.
824 N.W.2d 26
Filed December 14, 2012. 	No. S-12-242.
1. Affidavits: Appeal and Error. A district court’s denial of in forma pauperis sta-
tus under Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is reviewed de novo on the
record based on the transcript of the hearing or the written statement of the court.
2. Constitutional Law: Judgments. Except in those cases where the denial of in
forma pauperis status would deny a defendant his or her constitutional right to