Rood v. Rood

Page 138

545 N.W.2d 138

4 Neb.App. 455

Bonita Gail ROOD, Appellee State of Nebraska, Intervenor-Appellee, v. Harry Burriel ROOD, Appellant.

No. A-94-960.

Court of Appeals of Nebraska.

March 26, 1996.

Syllabus by the Court

1. Modification of Decree: Appeal and Error. An appellate court reviews proceedings for modification of a dissolution decree de novo on the record and will affirm the judgment of the trial court absent an abuse of discretion.

2. Foreign Judgments: Child Support. In a Revised Uniform Reciprocal Enforcement of Support Act proceeding, to determine the effect of a responding state's support order on an original order of support, courts look to the antisupersession or antinullification clause of the responding state's version of the act.

3. Foreign Judgments: Child Support. In Revised Uniform Reciprocal Enforcement of Support Act proceedings, a responding court may fix support payments at a different amount than that specified by a decree rendered in the initiating state.

4. Foreign Judgments: Child Support. An order by a court in the responding state under the Revised Uniform Reciprocal Enforcement of Support Act enforces the duty of support, as distinguished from the amount of support decreed.

5. Foreign Judgments: Child Support. The remedies provided for in the Revised Uniform Enforcement of Support Act are in addition to and not in substitution for any other remedies.

6. Modification of Decree: Child Support. The rule in Nebraska is that a modification of a child support order is allowed prospectively from the time of the modification order itself.

7. Modification of Decree: Child Support. When a divorce decree provides for the payment of stipulated sums monthly for the support of minor children, such payments become vested in the payee as they accrue, and courts are generally without authority to reduce the amounts of such accrued payments.

8. Modification of Decree: Child Support. The Nebraska Supreme Court has, on occasion, depending on the equities involved, approved modification of a child support order retroactive to the filing date of the application for modification.

9. Child Support: Emancipation. The right to demand child support cannot constitute a vested right after emancipation in fact.

10. Minors: Emancipation. Whether or not a child has been emancipated is a question of fact, to be determined on the peculiar facts and circumstances of each case.

Appeal from the District Court for Seward County; Bryce Bartu, Judge.

David L. Kimble, Seward, for appellant.

C. Jo Petersen, Seward County Attorney, for intervenor-appellee.

MILLER-LERMAN, C.J., and IRWIN and MUES, JJ.

IRWIN, Judge.

I. INTRODUCTION

Harry Burriel Rood appeals from an order of the district court for Seward County overruling his motion for new trial, following an order denying his petition to modify a dissolution decree. Because we find the district court properly refused to retroactively modify the decree and properly determined that there was insufficient evidence of emancipation, we affirm.

II. FACTUAL BACKGROUND

Appellee Bonita Gail Rood and appellant, Harry Burriel Rood, were married in July 1969. There were two children of the marriage, John and Charity. John was born on May 9, 1971, and Charity was born on February 12, 1974. In February 1981, Bonita filed a petition for dissolution of her marriage to Harry. The decree of dissolution was entered in May 1981. The decree awarded custody of the children to Bonita and ordered Harry to pay $150 per month child support for each child. Bonita assigned her interest in the child support payments to the Nebraska Department of Social Services in May 1981.

The record reflects that shortly after the dissolution, Harry moved to Michigan. Harry became delinquent on his child support payments, and contempt proceedings were initiated in Seward County in both October and December 1981.

Sometime in 1983, proceedings were initiated in Nebraska under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA) to enforce the child support obligations of the Nebraska decree in Michigan. In August 1983, a stipulation and an order were entered in the circuit court for Gladwin County, Michigan, pursuant to the RURESA proceedings. The stipulation and order set support at $25 per week. The record indicates that no separate proceedings were initiated in Nebraska to modify the original decree.

Through 1993, Harry appears to have made relatively consistent payments as stipulated to in the Michigan order. The clerk of the district court for Seward County recorded and computed Harry's balance and arrearage in conformity with the Michigan order through November 1993. In November 1993, the records indicate the arrearage was approximately $3,000. In December 1993, the clerk entered a notation in the records which indicated that pursuant to a Nebraska "Supreme Court ruling 'Crow v Crow' arrears recalculated" under the provisions of the original decree, which computation resulted in an arrearage of approximately $36,000, including accrued interest. In January 1994, Harry received a letter from the Seward County District Court indicating that his monthly obligation under the original decree was to be $150 per month per child, regardless of what the Michigan order provided.

On March 4, 1994, Harry filed a petition for modification of the decree. Harry alleged that the Michigan order should govern his monthly support obligation, that he had consistently complied with the Michigan order, and that the Michigan order was never appealed from. Additionally, Harry alleged that one of the children, Charity, had filed an affidavit which demonstrated she was emancipated in July 1992, and Harry sought credit for any arrearages accruing after that time. Harry sought to have the Nebraska decree modified to be in conformity with the Michigan order. At the time the petition for modification was filed, both of the children were above the age of 19 years, and Harry's obligation to support them had terminated. The modification action was brought to decrease the amount of arrearages.

On June 13, 1994, the case was tried to the district court. Harry, Harry's new wife, and a deputy clerk of the Seward County District Court were called to testify on Harry's behalf. Harry and his new wife both testified that they had understood the Michigan order as modifying his support obligation. They further testified that correspondence from the district court for Seward County had consistently reflected that his obligation was as reflected in the Michigan order. Harry also testified that he believed Charity had been emancipated in July 1992 because of an affidavit she had filed with the court. The deputy clerk testified that ledger cards, which reflect Harry's support payments and accrued arrearages, indicated an arrearage of approximately $3,000 in November 1993, but were amended to reflect a Nebraska Supreme Court case and showed an increased arrearage of approximately $36,000, including interest, after November 1993.

Bonita also testified at the hearing. She testified that she was unaware of the Michigan proceedings until 1990, "right after John's [19th] birthday," when Harry sought a reduction in his support obligation. She testified that she was not a party to the Michigan stipulation and order and that she did not receive any notice of the proceedings in Michigan. After hearing the testimony and receiving evidence, the court took the matter under advisement. On August 16, 1994, the court entered an order denying the petition for modification and denying Harry's request that Charity be found to have been emancipated in July 1992. Harry filed a motion for new trial, which was overruled by the court. This appeal followed.

III. ASSIGNMENTS OF ERROR

In this appeal, Harry assigns four errors, which we have consolidated for discussion to three. First, Harry alleges the district court erred in not finding that the Michigan order acted to modify his support obligation. Second, Harry alleges the court erred in failing to retroactively modify his support obligation under the original decree to conform to the Michigan order. Third, Harry alleges the court erred in finding that he failed to show Charity was emancipated in July 1992.

IV. STANDARD OF REVIEW

An appellate court reviews proceedings for modification of a dissolution decree de novo on the record and will affirm the judgment of the trial court absent an abuse of discretion. Adrian v. Adrian, 249 Neb. 53, 541 N.W.2d 388 (1995); Welch v. Welch, 246 Neb. 435, 519 N.W.2d 262 (1994); Marr v. Marr, 245 Neb. 655, 515 N.W.2d 118 (1994); Muller v. Muller, 3 Neb.App. 159, 524 N.W.2d 78 (1994).

V. ANALYSIS

1. EFFECT OF MICHIGAN ORDER

On August 13, 1983, Harry entered into a stipulation with the prosecuting attorney for Gladwin County, Michigan, concerning the RURESA action. The stipulation set Harry's obligation for child support at $25 per week and required Harry to pay an additional $3 per week to be applied toward the arrearages. The circuit court for Gladwin County entered an order dated August 23 adopting the language of the stipulation as an order of the court. After the stipulation and order in Michigan, Harry appears to have made relatively consistent payments of support as set out in the stipulation and order. In his petition for modification of the original dissolution decree which gives rise to the instant appeal, Harry requested that the district court for Seward County modify the original decree to bring it into conformity with the Michigan order.

In 1983, the Nebraska Revised Statutes included a version of RURESA. See Neb.Rev.Stat. § 42-762 et seq. (Reissue 1988). Pursuant to RURESA, in a proceeding brought to enforce the support provisions of a Nebraska decree when the payor spouse lived in another state, Nebraska was defined as the "initiating state," and the other state was defined as the "responding state." See § 42-763. In the...