Molina v. Salgado-Bustamante

21 Neb.App. 75

837 N.W.2d 553

Nanci Molina, individually and as next friend of Agustin Bustamante–Molina, appellee,

v.Agustin Salgado–Bustamante, appellant.

No. A–12–607

Court of Appeals of Nebraska.

Filed July 30, 2013

Appeal from the District Court for Douglas County: J Russell Derr, Judge. Affirmed in part, and in part reversed and remanded with directions.

John J. Heieck and Matthew Stuart Higgins, of Higgins Law, for appellant.

Catherine Mahern and Michael Wallace, Senior Certified Law Student, of Abrahams Legal Clinic, for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

Syllabus by the Court

[21 Neb.App. 75]1. Appeal and Error. The construction of a mandate issued by an appellate court presents a question of law.

2. Judgments: Appeal and Error. An appellate court reviews questions of law independently of the lower court's conclusion.

3. Actions: Paternity: Child Support: Equity. While a paternity action is one at law, the award of child support in such an action is equitable in nature.

4. Child Support: Appeal and Error. The standard of review of an appellate court in child support cases is de novo on the record, and the decision of the trial court will be affirmed in the absence of an abuse of discretion.

5. Motions for New Trial: Appeal and Error. A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.

6. Judges: Judgments: Appeal and Error: Words and Phrases. A judicial abuse of discretion, warranting reversal of a trial court decision on appeal, requires that the reasons or rulings of a trial court be clearly untenable, unfairly depriving a litigant of a substantial right and just result.

7. Child Support: Rules of the Supreme Court. The main principle behind the child support guidelines is to recognize the equal duty of both parents to contribute to the support of their children in proportion to their respective net incomes.

[21 Neb.App. 76]8. Child Support: Judgments. Nebraska law requires a trial court to attach the necessary child support worksheets to a child support order.

9. Appeal and Error: Words and Phrases. In appellate procedure, a “remand” is an appellate court's order returning a proceeding to the court from which the appeal originated for further action in accordance with the remanding order.

10. Courts: Appeal and Error. After receiving a mandate, a trial court is without power to affect rights and duties outside the scope of the remand from an appellate court.

11. Child Support: Stipulations. If the court approves a stipulation which deviates from the child support guidelines, specific findings giving the reason for the deviation must be made.

12. Evidence: Appeal and Error. Where 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 court heard and observed the witnesses and accepted one version of the facts rather than another.

Moore, Judge.

Agustin Salgado–Bustamante (Agustin) appeals from an order of the district court for Douglas County, Nebraska, that was entered after remand from this court following a previous appeal. The new order increased the amounts of retroactive and prospective child support from those contained in the originally appealed order. The district court also retroactively amended its original award of temporary support. For the reasons set forth below, we affirm the district court's award of retroactive support. However, because the district court went beyond the mandate on remand, we reverse the district court's changes to temporary and prospective support and remand the cause for a new trial.

I. FACTUAL BACKGROUND

Nanci Molina (Nanci) and Agustin had a child together, Agustin Bustamante–Molina (Agustin Jr.), born in April 2003. The parties, who never married, later separated, and Nanci brought this paternity action. A temporary order was entered on January 6, 2010, which ordered Agustin to pay temporary support in the sum of $360 per month beginning December 1, 2009.

Trial was held on November 30, 2010. The parties stipulated that Agustin was the father of Agustin Jr., that Nanci would have physical possession of Agustin Jr. subject to Agustin's parenting time as set forth in the parties' mediated parenting plan, and that Agustin would be responsible for $360 per month in prospective child support. The only issue tried to the district court was the amount of retroactive child support Agustin owed. At trial, both Nanci and Agustin testified. The record reveals significant conflict between their two accounts regarding the date of their separation, the amount of Nanci's income, and how much Agustin contributed in past support.

Through an interpreter, Nanci testified that she started dating Agustin in 2000 or 2001 and that they broke up in June 2005. According to Nanci, after they separated, Agustin did not have Agustin Jr. with him for extended periods (more than 3 or 4 days) any more than two to three times. She stated this was the case from the time of their separation until this paternity action. Nanci also indicated that due to Agustin's work schedule, he could not have cared for Agustin Jr. during the day while she was at work. She did admit, however, that Agustin's parents would take care of Agustin Jr. before school and bring him home from school in the afternoon if needed.

Nanci also testified regarding her income from 2005 until 2010. Nanci testified that during this entire period, she was employed at a house-cleaning company. Although she did not submit any tax returns or W–2 forms in evidence, Nanci testified that her monthly income was $850 in 2005, $870 in 2006, $900 in 2007, $950 in 2008, $1,005 or $1,010 in 2009, and $1,200 in 2010. Nanci also stated that she did not receive any additional benefits from her employer.

Nanci indicated that she received little financial assistance from Agustin, despite having asked for support. According to her testimony, she did not receive any support from Agustin in 2005, 2007, 2008, or 2009. She stated that she received $2,000 from Agustin's tax return in 2006. She also affirmatively denied receiving any money from Agustin's 2007 tax return. Nanci agreed that Agustin bought her a car using the money he received from their tax return in 2005. The car cost $2,600.

Agustin disagreed that he and Nanci separated in June 2005. He testified that he discovered Nanci was “cheating on” him in December 2005, but was adamant they did not split up until April 2006, when Nanci moved out of their home. Agustin also stated that he worked an “overnight schedule” from 2005 to September 2010 at a plastics company. Agustin testified that due to his work schedule and its overlap with Nanci's daytime work schedule, he would take care of Agustin Jr. during the day. He claimed to have provided breakfast, lunch, and a shower for the child each day. Agustin testified that this was the arrangement in place from the date of his separation from Nanci in April 2006 until August 2008.

Agustin's tax returns and W–2 forms from 2005 to 2009 were received into evidence. Agustin disputed Nanci's income during that same period. He testified that Nanci was making an average of $360 a week in 2006 and was paid in cash. Agustin also stated that Nanci did not pay taxes during this time period.

Lastly, Agustin testified that he provided far more in financial support than Nanci's testimony revealed. First, Agustin testified that he and Nanci were living together in 2005 and did not separate until April 2006. Agustin also stated that he gave Nanci about $2,500 in support in 2006. Agustin testified that for 2007, he gave Nanci approximately $300 per month ($3,600 for the year) and an additional $3,000 from his tax return. He claimed that he paid Nanci in cash because she did not have a bank account. Agustin testified that he had “no clue” how much he gave Nanci in 2008, but later testified that he thought he gave her an average of $300 per month from January to August. According to Agustin, this monthly $300 payment was in addition to his care of Agustin Jr. during the schooldays.

Nanci offered into evidence, and the court received, exhibit 1, which consisted of child support calculation worksheets for the years 2005 through 2009, together with a summary page computing the amount of retroactive support that she was requesting from July 1, 2005, to November 30, 2009. As summarized, exhibit 1 shows as follows:

+--------------------------------------------------+
¦Year¦Monthly Support                      ¦Amount ¦
+----+-------------------------------------+-------¦
¦2005¦Monthly support of $368 for 6 months ¦$ 2,208¦
+----+-------------------------------------+-------¦
¦    ¦(July to December)                   ¦       ¦
+----+-------------------------------------+-------¦
¦2006¦Monthly support of $478 for 12 months¦5,736  ¦
+----+-------------------------------------+-------¦
¦2007¦Monthly support of $587 for 12 months¦7,044  ¦
+----+-------------------------------------+-------¦
¦2008¦Monthly support of $533 for 12 months¦6,396  ¦
+----+-------------------------------------+-------¦
¦2009¦Monthly support of $540 for 11 months¦5,940  ¦
+----+-------------------------------------+-------¦
¦    ¦(January to November)                ¦       ¦
+----+-------------------------------------+-------¦
¦    ¦TOTAL                                ¦$27,324¦
+--------------------------------------------------+

On March 28, 2011, the district court entered an order for paternity, custody, and prospective and retroactive support. The court determined Agustin owed Nanci $25,324 in retroactive support while also awarding Agustin $2,000 in credit for his 2006 support obligation and a $3,600 credit for his 2007 obligation. After subtracting these credits from the total retroactive support owed, the court ordered Agustin to pay $19,724 to Nanci. The order required...