Henke v. Guerrero

692 N.W.2d 762

13 Neb. App. 337

Trudi R. HENKE, appellant and cross-appellee, v. Robert P. GUERRERO, appellee and cross-appellant.

No. A-04-532.

Court of Appeals of Nebraska.

February 15, 2005.

Richard E. Gee, Grand Island, for appellant.

Chris A. Johnson, of Conway, Pauley & Johnson, P.C., Hastings, for appellee.

SIEVERS, MOORE, and CASSEL, Judges.

SIEVERS, Judge.

Trudi R. Henke appeals the order of the Hall County District Court establishing the paternity of and granting support for her minor child, Leauna L. Henke. Robert P. Guerrero, the putative father, cross-appeals the order of support. The matter of child support is complicated by the fact that Trudi and Robert both have spouses and children from their marriages.

FACTUAL AND PROCEDURAL BACKGROUND

On June 5, 2000, Trudi gave birth to Leauna. At the time of Leauna's birth, Trudi was already married to Brian Henke. On July 31, 2002, Trudi filed a petition against Robert to establish paternity. On January 10, 2003, a hearing was held in the Hall County District Court on Trudi's motion for genetic testing. The court granted the motion and ordered testing of both Robert and Brian, but reserved the right to later assess costs for the testing. Following a hearing on the petition to establish paternity, the court entered an order on February 24, 2004, finding that Robert was Leauna's biological father and ordering child support. Only the matter of support is at issue in this appeal.

At the time of Leauna's birth, Robert was married, and he was still married at the time of the hearing. Robert and his wife have three children — a son born December 5, 1994, and twins born March 7, 2002. Trudi and Brian also were still married and have two other children born prior to Leauna's birth, one of whom is not Brian's biological child.

From February 10, 1997, to April 5, 2002, Robert was employed at Mayhew Signs, Inc., which is owned by Trudi's father. While employed at Mayhew Signs, Robert earned $13.50 per hour plus benefits. Within a week or two after quitting Mayhew Signs, Robert began working at another sign company where he earned $11.50 per hour without benefits. Robert's wife resigned from her job in July 2002 to stay at home and care for her and Robert's children. Robert was laid off from the second sign company on October 9, 2003. On December 2, he obtained employment with a heating, air conditioning, and electrical company and was still employed there at the time of trial, earning $9.50 per hour without benefits. Robert has a high school diploma and received a certificate from an "electrical college" but does not have a degree.

Trudi is employed at Mayhew Signs as a graphic artist and salesperson. At the time of trial, she had been employed there for 10 years. Trudi's 2003 W-2 form shows her gross wages to be $25,616.22 before her retirement contribution, leaving $24,966.22 as taxable gross income. Her husband, Brian, is employed, and their housing and family health insurance are provided as a benefit of Brian's employment. No evidence of Brian's earnings was submitted at trial.

The trial court ordered Robert to pay child support for Leauna of $252 per month commencing on July 1, 2000. The court stated that his child support "[a]rrearages" shall be paid in the sum of $50 per month. The court also ordered Robert to pay $25 per month for "unpaid birth expenses" for Leauna of $276.94. The court ordered that Robert carry health insurance on Leauna "if available through his employment" and that he pay 38 percent of her annual noncovered health expenses above the first $480, which initial amount Trudi was to pay. Both parties were ordered to pay their own costs and fees. Trudi filed a motion for new trial on March 4, 2004. In a subsequent order on April 5, the court overruled the motion for new trial and modified its previous order by awarding Trudi one-half of the $700 genetic testing fee. Trudi timely appeals, and Robert cross-appeals.

ASSIGNMENTS OF ERROR

Trudi asserts, reassigned and restated, that the trial court erred in (1) calculating Robert's child support obligation on the basis of his wage of $9.50 per hour at the time of trial rather than on the $13.50 per hour he earned before he quit Mayhew Signs; (2) refusing to admit exhibit 32, which showed the availability of jobs he could have applied for; (3) not reducing Trudi's income by the amount of her retirement contribution; (4) choosing a single monthly retroactive child support amount; (5) not ordering Robert to pay his share of Leauna's medical and childcare costs from her birth to the date of trial; (6) not ordering Robert to pay a percentage of Leauna's health insurance costs; (7) ordering visitation when Robert actively opposed any effort to set up visits; (8) not ordering Robert to pay all of the costs of genetic testing; (9) not ordering Robert to pay a part of Trudi's attorney fees and costs; (10) not ordering Robert to post security for child support; and (11) refusing to admit exhibit 30, which pertained to life insurance.

On cross-appeal, Robert asserts, reassigned and restated, that the court erred in (1) awarding retroactive child support, (2) setting the amount of child support without considering the poverty guidelines in effect on the day of trial, and (3) ordering Robert to contribute to past medical birth expenses and future unreimbursed medical expenses and to acquire health insurance for Leauna if such insurance is available through his employment.

STANDARD OF REVIEW

While a paternity action is one at law, the award of child support in such an action is equitable in nature. State on behalf of Joseph F. v. Rial, 251 Neb. 1, 554 N.W.2d 769 (1996). When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Id. A trial court's award of child support in a paternity case will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. Weaver v. Compton, 8 Neb.App. 961, 605 N.W.2d 478 (2000). In child support cases, where the credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Brockman v. Brockman, 264 Neb. 106, 646 N.W.2d 594 (2002).

ANALYSIS

General Principles.

Child support in a paternity action is to be determined in the same manner as in cases of children born in lawful wedlock. Neb.Rev.Stat. § 43-1402 (Reissue 2004). An out-of-wedlock child has the statutory right to be supported to the same extent and in the same manner as a child born in lawful wedlock; the resulting duty of a parent to provide such support may, under appropriate circumstances, require the award of retroactive child support. State on behalf of Joseph F. v. Rial, supra; Weaver v. Compton, supra. The requirement of support begins at the time of the birth of the child, whether the child is born in lawful wedlock or otherwise. Weaver v. Compton, supra.

Present Wage Versus Past Wage.

Trudi asserts that the trial court erred in calculating Robert's child support based on his wage of $9.50 per hour at the time of trial instead of based on his earning capacity, because he voluntarily left his previous employment paying $13.50 per hour. Paragraph D of the Nebraska Child Support Guidelines provides in part: "If applicable, earning capacity may be considered in lieu of a parent's actual, present income and may include factors such as work history, education, occupational skills, and job opportunities. Earning capacity is not limited to wage-earning capacity, but includes moneys available from all sources."

Child support may be based on a parent's earning capacity when a parent voluntarily leaves employment and a reduction in that parent's support obligation would seriously impair the needs of the children. Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004). Additionally, earning capacity may be used as a basis for an initial determination of child support under the Nebraska Child Support Guidelines where evidence is presented that the parent is capable of realizing such capacity through reasonable effort. Id.

The trial court stated in its order that it used Robert's income at the time of trial to calculate child support. The court reasoned that it "rejects the testimony that [Robert] could be rehired at [Mayhew Signs] based upon the testimony of the parties presented" and that it "further finds that [Robert] has made every effort to obtain employment at his job level and earning capacity." Robert testified that Trudi "forced" him to leave his job at Mayhew Signs. He also testified that he had applied for employment at over 20 places and that he was looking for "better work." There was no evidence indicating that Robert resigned from his employment at Mayhew Signs to avoid paying child support or that he resigned in bad faith. It is perhaps self-evident that Robert's continuing to work for Trudi's father with Trudi at the same workplace is not realistic. Moreover, the trial court was in a better position than this court to hear and see the witnesses and assess the evidence. There was no abuse of discretion in basing child support on Robert's income of $9.50 per hour at the time of trial.

Evidence of Job Availability.

Trudi argues that the court erred in not admitting exhibit 32, which comprised newspaper "clippings" of classified advertisements for various jobs. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion. Sharkey v. Board of Regents, 260 Neb. 166, 615 N.W.2d 889 (2000). To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about such evidence admitted or excluded. Big River...