Lawson v. Pass

633 N.W.2d 129

10 Neb. App. 510

Theresa M. LAWSON, Appellee, v. Wayne PASS, Appellant.

No. A-00-512.

Court of Appeals of Nebraska.

September 4, 2001.

Clay M. Rogers and Patrick E. Griffin, of Dwyer, Smith, Gardner, Lazer, Pohren, Rogers & Forrest, Omaha, for appellant.

Benjamin M. Belmont, of Lustgarten & Roberts, P.C., Omaha, for appellee.

IRWIN, Chief Judge, and SIEVERS and CARLSON, Judges.

SIEVERS, Judge.

The father of a 7-year-old daughter born out of wedlock appeals the Douglas County District Court's paternity decree ordering him to pay retroactive child support in the amount of $20,945, calculated at $295 per month, which he is to pay at the rate of $100 a month until he eliminates the arrearage. In attacking the decree, the father contests the propriety of the mother's bringing this action for support because she is not a real party in interest. He asserts that the trial court failed to complete the child support worksheets which justify the award. He further asserts that it was improper for the court to characterize an award of attorney fees for the mother as child support in order to make the award thereof nondischargeable in bankruptcy. The judge's failure to complete the child support worksheets, among other reasons, causes us to reverse, and remand portions of the decree. We affirm and vacate other portions of the decree.

I. FACTUAL BACKGROUND

Tiffany C. Pass was born to Theresa M. Lawson on April 1, 1994. Wayne Pass admitted paternity and was listed as the father on Tiffany's birth certificate. At the time Tiffany was born, Theresa was living with Wayne in Omaha, Nebraska, but they kept their finances separate. Theresa claims she owned a home, but Wayne says she was renting a home. In either event, Wayne did not dispute that Theresa alone paid the housing expense. Wayne claims that he and Theresa lived together continuously for the first 3 years after Tiffany's birth, but Theresa challenges this claim, stating that they lived together "[o]ff and on."

Theresa was about 33 years old and Wayne was about 36 years old at the time of Tiffany's birth, and the highest level of education either Theresa or Wayne attained was a high school diploma. During the first few years of Tiffany's life, Theresa worked full time at a job which did not allow her time off to care for Tiffany, but the job did provide medical insurance for Tiffany. Theresa earned $26,176 in 1994, $27,154 in 1995, $28,688.58 in 1996, and $30,973 in 1997. Wayne was a painter with about 10 years' experience when Tiffany was born. During the first 3 years of Tiffany's life, he was self-employed while starting a painting business. He testified that he earned $8,000 to $10,000 annually in 1994, 1995, and 1996. Wayne claims his earnings were reduced during these years because Tiffany was frequently ill, and he often cared for her as Theresa could not freely leave work. However, Theresa disputes that Wayne shouldered much of the child-care responsibility at this time. Theresa claims that she usually dropped Tiffany off at Theresa's mother's house on her way to work and picked Tiffany up at the end of her workday. During this period, Wayne provided an unspecified amount of money for Tiffany's clothes and cash for Theresa. In 1994, he painted the interior of a house Theresa had bought and then sold 7 months later, in 1995, for a $4,000 profit.

From early 1998 through early 2000, when Tiffany was 4 to 5 years old, Wayne lived with Theresa "[o]ff and on." In late 1997, Wayne began to work full time as a painter of commercial and residential buildings for the Lund Company, earning $10 an hour. He testified that he earned about $20,000 in 1997. His 1998 tax return shows that he earned $21,436 that year. In 1998, Theresa earned $35,867, according to her tax return. However, in December, Theresa began a new job as an insurance clerk for Omaha Psychiatric Associates, although her previous job paid more. Theresa made this change because her previous employer was going to transfer her to another department requiring her to work nights and other hours incompatible with Tiffany's child-care needs. Theresa is paid $10 an hour and earned $21,883 in 1999, according to her tax return. Wayne testified that he earned $10 an hour, or about $20,000, in 1999. His March 3, 2000, earnings statement from the Lund Company showed that he was being paid $11.25 an hour in 2000.

This earnings statement for a 2 week period shows that $100 was withheld from Wayne's check for "Child Support." The "year to date" column for deductions shows that $400 had been withheld from Wayne's pay in 2000, but there is no other evidence how often this deduction is taken. And while the record is otherwise silent on this matter, the inference is clear that this child support is for a child other than Tiffany, as the only undisputed evidence of Wayne's monetary support of Tiffany was a $50 payment in June 1999. Wayne testified that his offers to provide monetary support after he moved from Theresa's home in 1997 were often spurned by Theresa due to her jealousy of his relationships with other women. However, there is no evidence of the amount he offered or Theresa accepted, except for the $50 payment in June 1999, which Theresa agreed that she received.

II. PROCEDURAL BACKGROUND

Theresa filed a paternity action against Wayne in Douglas County District Court on May 11, 1999. Theresa sought child support on behalf of Tiffany, in a sum to be determined pursuant to the Nebraska Child Support Guidelines and applied retroactively to the date of Tiffany's birth. She also sought reasonable attorney fees. In his answer, Wayne admitted paternity, but disputed that the court should award retroactive child support because he alleged that he regularly made support payments in the past. Wayne's counsel conceded at oral argument in this court that retroactive support is the law generally applied in a paternity case.

Although the record does not include a petition filed by the State on Tiffany's behalf, it does contain Wayne's demurrer to a petition dated February 9, 2000, by the State. In this demurrer, Wayne referenced Theresa's action against him in the same court and asked that the State's petition be dismissed. On February 15, Wayne filed a motion to stay proceedings, alleging that Theresa was not the real party in interest and that she lacked standing to bring this action because she had made an assignment to the State concerning payments for Tiffany. Wayne prayed that the court stay these proceedings pending resolution of the action involving the State. On March 10, the State filed a motion to intervene in Theresa's action against Wayne, alleging that Tiffany was receiving medicaid. A trial docket entry dated March 16, 2000, shows that the court deemed Wayne's motion to stay proceedings moot and granted the State's motion to intervene in Theresa's case.

Trial was held on Theresa's petition on March 22, 2000. The record shows that Theresa and Wayne stipulated that custody and visitation were not at issue. They further stipulated that "child support has been agreed to pursuant to the Nebraska child support guidelines in the sum of 295 dollars." The parties agreed that the retroactivity of the child support was an issue to be decided, but that the stipulated amount of $295 per month was applicable only to future child support owed. However, both parties failed to submit a basic net income and support calculation worksheet supporting the figure of $295 per month as Tiffany's future child support. Wayne and Theresa further agreed that he would pay half of any child-care expenses incurred by Theresa, on Tiffany's behalf, while Theresa is employed or obtaining training or education necessary to obtain a job or enhance her earning potential. Wayne agreed to maintain life insurance to ensure the child support obligation. He agreed to maintain health insurance on behalf of Tiffany and contribute 50 percent for payment of Tiffany's noncovered medical and dental expenses. There is no written stipulation in the record, as we have only the oral statements of counsel. The issues decided by the trial court were whether Wayne's child support obligation would be applied retroactively to the date of Tiffany's birth, the amount of such retroactive child support, and whether Wayne would be responsible for Theresa's attorney fees.

Theresa introduced evidence that her net monthly income is $1,250, that monthly living expenses total $1,945 for her and Tiffany, and that she receives financial assistance from her family to make ends meet. Wayne introduced evidence at trial that his biweekly gross pay is $900. His earnings statement shows that Wayne's net pay for a 2 week period was $561.95, but that figure does not take into account the increased premium he will pay in the future to provide Tiffany with medical and dental insurance. At the end of the trial, the court questioned, but did not receive an answer, regarding whether the State would be reimbursed for medicaid payments made on Tiffany's behalf.

Ruling from the bench, the trial court opined that Wayne is a very healthy individual who did not testify to any physical or mental ailment precluding full-time employment. The trial court concluded from Wayne's testimony that the first time he held a steady job was in 1997, that he was currently 43 years old, and that he did not believe that he had failed to meet his parental financial obligations because Theresa "had a good job." The trial court ordered Wayne to pay child support retroactive to the date of Tiffany's birth, using the sum of $295 per month for 71 months to arrive at a total of $20,945. The arrearage was to be paid at the rate of $100 per month. The court's later written order provided that Wayne pay Theresa's counsel $750 in attorney fees as "a liability in the nature of support," which the court intended to be nondischargeable in bankruptcy. Wayne testified that he filed a chapter 7...