Lizeth E. v. Roberto E.

1

317 Neb. 971

Lizeth E., now known as Lizeth S., appellee, v. Roberto E., appellant.

No. S-23-800

Supreme Court of Nebraska

October 31, 2024

1. Modification of Decree: Child Custody: Visitation Child Support: Appeal and Error. Modification of a judgment or decree relating to child custody, visitation, or support is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and will be affirmed absent an abuse of discretion.

2. Child Support: Equity. Child support proceedings are equitable in nature.

3. Courts: Equity. Where a situation exists that is contrary to the principles of equity and which can be redressed within the scope of judicial action, a court of equity will devise a remedy to meet the situation.

4. Child Support: Rules of the Supreme Court. The Nebraska Child Support Guidelines expressly permit a deviation from the guidelines for juveniles placed in foster care.

5. Appeal and Error: Words and Phrases. Plain error exists where there is an error, plainly evident from the record, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

Appeal from the District Court for Lincoln County, Cindy R. Volkmer Judge.

Todd M. Jeffers, of Jeffers Law Firm, for appellant.

No appearance by appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy Funke, Papik, and Freudenberg, JJ.

CASSEL, J.

INTRODUCTION

The issues raised in this modification of a dissolution decree appeal relate to Roberto E.'s child support obligation particularly to child support he paid while his children were not in his former wife's custody. Upon our de novo review of the record for an abuse of discretion, we affirm the district court's determination that it lacked jurisdiction to modify custody while a child's case remained pending in juvenile court. However, we vacate the judgment and remand the cause to the district court to consider whether a deviation from the child support guidelines is appropriate under the circumstances.

BACKGROUND

We start by summarizing the dissolution of marriage proceedings including the child support ordered. Then, we touch on the juvenile court cases involving the children and a bridge order concerning one child. Finally, we discuss the complaints to modify the decree, the evidence adduced at the hearing, and the district court's order from which this appeal is taken.

Marriage and Dissolution

In 2011, Roberto and Lizeth E., now known as Lizeth S., married and a child, Roberto E., Jr. (Roberto Jr.), was born to the marriage. Roberto subsequently adopted Lizeth's four children: Andres E., Angel E., Adrian E., and Adriana E.

In 2014, Lizeth filed a complaint in the Lincoln County District Court to dissolve the marriage. In 2017, the court entered a decree of dissolution. It awarded Lizeth physical and legal custody of all five children and ordered Roberto to pay monthly child support of $1,333 for all five children.

Juvenile Court Cases

While in Lizeth's custody, each child was the subject of a juvenile court petition alleging the child to be a "juvenile" as described in Neb. Rev. Stat. § 43-247(3) (Reissue 2016). As a result, the children were, at various times, put in placements outside of Lizeth's home.

•Andres was on probation and in out-of-home placements, including with relatives, from December 9, 2020, to February 5, 2021, and from March 16, 2021, to June 22, 2023.

•Angel and Adrian were removed from Lizeth's custody on August 4, 2021, were placed in foster care, and were returned to Lizeth's home in December 2022.

•Adriana was removed from Lizeth's custody on March 8, 2021, and has remained in foster care. In a June 2023 order, the juvenile court approved a permanency goal of guardianship.

•Roberto Jr. was removed from Lizeth's custody on August 4, 2021, was placed in foster care, and has remained in Roberto's custody since November 19.

Bridge Order and Orders Nunc Pro Tunc

In May 2022, the county court for Frontier County, acting as a juvenile court, entered a bridge order placing Roberto Jr. in the sole custody of Roberto. The order transferred jurisdiction to the Lincoln County District Court. Except for this bridge order, the record before us does not disclose any juvenile court order addressing child support or any attempt by any party in juvenile court to seek any such order.

Roberto subsequently sought an order nunc pro tunc to reflect the custody change. He attached to his motion an "accurate split custody child support calculation." The court entered the requested order, finding that the 2017 child support order should be "modified to reflect the Bridge Order split custody arraignment [sic]." The court attached to its order Roberto's split custody child support calculation.

Shortly thereafter, Roberto filed another "Motion Nunc Pro Tunc." He alleged that the child support calculation attached to the order nunc pro tunc was incomplete, because it contained only two of four pages. Roberto attached to his motion an updated calculation.

In July 2022, the district court entered another order nunc pro tunc. It found that "[t]here has occurred a material and a substantial change in circumstances since the entry of the Decree of Dissolution of Marriage dated January 22, 2017." It stated that the updated split custody child support calculation modified a paragraph in the original decree and that the first payment was due and payable on December 1, 2021.

The district court attached to its order an updated split custody child support calculation. According to the worksheet, Roberto's child support obligation was $779 per month when four of the children were in Lizeth's custody and one child was in Roberto's custody. The worksheet showed the amount of support for each child was $353.20, with Lizeth's share being $126.80 and Roberto's share being $226.40. The worksheet indicated that Adriana was in Lizeth's custody.

Modification Proceedings

In September 2018, Lizeth filed a complaint, styled as an application, to modify parenting time. Two months later, she filed a motion to modify child support based on an alleged increase to Roberto's income. In response, Roberto denied there was a material change in circumstances. Later, in a March 2021 response to an order to show cause, Roberto alleged that a material change in circumstances occurred due to a temporary order that changed the parenting plan and due to Lizeth's difficulty with being the children's physical custodian. These filings remained pending until 2023.

After this extended delay, in March 2023, Roberto filed a complaint, styled as a motion, seeking modification. He alleged that the orders and findings in the children's juvenile cases constituted a material change of circumstances and that only in Roberto Jr.'s case had a bridge order been sent to the district court. Roberto alleged that the decree and orders in this case "need corrected retroactively Pro Nunc Tunc, and currently moving forward to accurately reflect the custody changes, and changes to payee, ordered by these juvenile cases."

According to Roberto, the split custody calculation attached to the July 2022 order nunc pro tunc accurately provided the child support calculation needed to adjust the juvenile case custody changes. He pointed out that the calculation showed Lizeth's share of childcare costs to be 35.9 percent and Roberto's share to be 61.1 percent. Roberto asserted that "[t]he multiple [j]uvenile cases that have modified custody has failed to update the child support owed by the parties correctly." He alleged that the State improperly collected from him 100 percent of child support for the children who were in foster care and state custody and that the State opted not to use its authority under Neb. Rev. Stat. § 43-290 (Reissue 2016) to request Lizeth pay a reasonable amount for foster care.

Roberto sought various relief. The requested relief included an order nunc pro tunc updating the child support order to reflect custody changes contained in the juvenile court orders, a judicial review of a seizure of Roberto's property, an order preventing child support enforcement from releasing Roberto's seized property until after a judicial review, and an evidentiary hearing providing Roberto with an opportunity to offer proof that past due child support had been satisfied in whole or in part.

In August 2023, the district court held a hearing on the three pending complaints to modify. Roberto provided testimony and offered numerous exhibits. Although Lizeth did not appear personally, she was represented by counsel.

Roberto testified that his parenting time and communication with the children ceased in August 2018. He was falsely accused of abusing them, resulting in criminal charges. The charges led to Roberto's arrest, payment of a $50,000 bond, and incurrence of attorney fees. The criminal charges were dropped 2 years later. After the charges were dropped, Roberto communicated with the Nebraska Department of Health and Human Services (DHHS) about resuming parenting time with Roberto Jr., who was in foster care.

Roberto testified that the criminal charges caused him to become delinquent in child support payments. He explained that he lacked money for child support due to having to pay for an attorney and related legal expenses. Roberto testified that the delinquency occurred "pretty much about the time that [he] had to hire the criminal attorney."

Child support payment history data for Roberto showed that of Roberto's $779 monthly payment, $584.25 was allocated to Lizeth and $194.75 was allocated...