SUMMARY: The court’s order for DHHS to pay opposing counsel’s attorneys fees was improper because failure to send reports prior to the hearing is not direct contempt and thus requires reasonable notice and opportunity to be heard.
A petition was filed as to the children on October 22, 2010, and a hearing was held on February 28, 2011, where the court ordered that all reports to be submitted at the next hearing be provided to opposing counsel at least 3 days before the hearing. At the next hearing on August 23, 2011, opposing counsel objected to DHHS’ reports because DHHS did not provide them 3 days prior to the hearing. The court continued the hearing. At the next hearing on October 27, 2011, opposing counsel again objected for the same reason and the court again continued the hearing. At the third attempted hearing on January 9, 2012, opposing counsel again objected for the same reason. The court sustained the objection and ordered opposing counsel’s costs for the January 9th hearing to be paid by DHHS. DHHS appealed.
The Nebraska Court of Appeals vacated the order. It reaffirmed the court’s discretion in ensuring proper administration of justice, which included its ability to punish for contempt and to order DHHS to pay attorneys fees and costs through contempt. However, it noted that the contemnor is entitled to reasonable notice and an opportunity to be heard unless it is a direct contempt committed in the presence of the court. The Court of Appeals reasoned that DHHS’ failure to provide the reports to opposing counsel 3 days before the hearing happened outside the presence of the court and therefore the court did not have firsthand knowledge of the contempt and, in any event, could not have known the reasons for the failure of delivery (the Court of Appeals cited In re Contempt of Potter, 207 Neb. 769, 301 N.W.2d 560 (1981), and In re Interest of Simon H., 8 Neb. App. 225, 590 N.W.2d 421 (1999) in explaining that even events happening in court, like a tardy attorney or late court report were not direct contempt because it was required of the judge to know facts existing outside of the court process).