State v. West

STATE OF NEBRASKA ON BEHALF OF JENNA W.AND JAYDEN W., MINOR CHILDREN, APPELLEE, v. DENNIS W., APPELLANT.

No. A-14-1064.

NEBRASKA COURT OF APPEALS

November 3, 2015

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Phelps County: STEPHEN R. ILLINGWORTH, Judge. Affirmed.

Dennis W., pro se.

Michael J. Henry, Phelps County Attorney, and Nancy J. Garrelts for appellee.

MOORE, Chief Judge, and IRWIN and INBODY, Judges.

MOORE, Chief Judge.

INTRODUCTION

Dennis W. appeals from an order entered by the district court of Phelps County, which reduced Dennis' child support to $50 per month effective December 1, 2014. Because we find no abuse of discretion by the district court, we affirm.

BACKGROUND

On December 18, 2008, the district court of Phelps County entered an order requiring Dennis to pay child support for the benefit of his two children in the amount of $489 per month. In 2013 Dennis was convicted of two counts of sexual assault and on November 15, he was sentenced to consecutive terms of incarceration of 15 to 20 years and 4 to 5 years.

On June 2, 2014, Dennis filed a pro se Complaint for Modification of Child Support Order. In his complaint, Dennis alleged that his incarceration and resulting reduction of income and earnings potential amounted to a material change in circumstances following the entry of the previous order, necessitating a modification of his child support obligation.

A hearing on the complaint was held before the district court on October 23, 2014. The evidence presented at trial consisted exclusively of Dennis' telephonic testimony. Dennis indicated that he was seeking the modification, in part, for the purpose of preventing his past due support from being "sky high" at the time of his release from prison. Dennis testified that he is currently earning only $2.25 a day, five days a week, while in the process of pursuing a G.E.D. On examination by the State, Dennis agreed that after earning his G.E.D. diploma, he had the potential opportunity to work for the prison shop, at which time he could receive a starting salary of around 40 cents an hour up to approximately $1 an hour.

The State did not present further evidence at trial in opposition to Dennis' modification request, but argued, in part, that Dennis voluntarily committed the crime after the child support order was entered and therefore should not be allowed to modify the support order.

On October 31, 2014, the district court entered an order reducing Dennis' child support obligation to $50 per month for two children and $50 per month for one child. The district court found that a material change in circumstances had occurred due to Dennis' "involuntary reduction in income" as a result of his incarceration as provided for in Neb. Rev. Stat. § 43-512.12 and recognized in Hopkins v. Stauffer, 18 Neb. App 116, 775 N.W.2d 462 (2009). The district court further found that the State presented no evidence to support application of the exceptions to this rule set forth in the statute. Due to Dennis' low income, the court ordered "a minimum" amount of child support. Finally, the district court found that the material change in circumstances began after November 15, 2014, the date on which Dennis "will have been incarcerated one year," referencing § 43-512.15(1)(b). Thus, the court reduced Dennis' child support effective December 1, 2014. Dennis subsequently perfected this appeal.

ASSIGNMENTS OF ERROR

Dennis asserts that the district court erred in (1) failing to find that he provided sufficient evidence to rebut the presumption that the Nebraska minimum child support guideline controls and (2) failing to apply the child support modification retroactively to the first of the month following the filing date of his complaint.

STANDARD OF REVIEW

An appellate court reviews proceedings for modification of child support de novo on the record and will affirm the judgment of the trial court absent an abuse of discretion. Schwarz v. Schwarz, 289 Neb. 960, 857 N.W.2d 892 (2015). See, also, State on Behalf of A.E. v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340 (2007). Similarly, whether a child support modification order should be retroactive is entrusted to the discretion of the trial court and will be affirmed absent an abuse of discretion. Wilkins v. Wilkins, 269 Neb. 937, 697 N.W.2d 280 (2005). See, also, Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005); Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002).

An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015). A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result. Id.

ANALYSIS

MODIFICATION OF CHILD SUPPORT OBLIGATION

Dennis asserts that the district court erred in its modification of his child support obligation. Specifically, Dennis argues that the Nebraska Child Support Guideline's minimum recommended obligation of $50 per month is excessive based on his financial circumstances and that he produced sufficient evidence to allow a deviation below this amount.

The paramount concern in child support cases, whether in the original proceeding or subsequent modification, is the best interests of the child. Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009). In general, child support payments should be set according to the Nebraska Child Support Guidelines adopted by the Nebraska Supreme Court, which are presumed to be in the best interests of the child. Id. See, also, Neb. Rev. Stat. § 42-364.16; Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015).

In determining the amount of a child support award, a trial court must consider the status, character, and situation of the parties and attendant circumstances, including the financial condition of the parties and the estimated cost of support of the children. Hajenga v. Hajenga, 257 Neb. 841, 601 N.W.2d 528 (1999). See, also, Anderson v. Anderson, 290 Neb. 530, 537, 861 N.W.2d 113, 120 (2015).

Due to Dennis' low income, the district court ordered a "minimum child support order" of $50 per month for two children and $50 per month for one child. Such a minimum payment is established in the Nebraska Child Support Guidelines under Neb. Ct. R. § 4-209, "Minimum support," which provides the following:

It is recommended that even in very low income cases, a minimum support of $50, or 10 percent of the obligor's net income, whichever is greater, per month be set. This will help to maintain information on such obligor, such as his or her address, employment, etc., and, hopefully, encourage such person to understand the necessity, duty, and importance of supporting his or her children.

See, also, Garza v. Garza, 288 Neb. 213, 219, 846 N.W.2d 626, 632 (purpose of § 4-209 is to provide for some support even in cases of very low income in order to reinforce the duties and obligations of being a parent).

The Nebraska Child Support Guidelines are applied as a rebuttable presumption, and all orders for child support shall be established under the provisions of the guidelines unless the court finds that one or both parties have produced sufficient evidence to rebut the presumption. State on Behalf of A.E. v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340 (2007); Neb. Ct. R. § 4-203.

The Nebraska Supreme Court discussed the Child Support Guideline's presumption of correctness and the minimum child support amount established under § 4-209 in Sylvis v. Walling,248 Neb. 168, 532 N.W.2d 312 (1995). The Court, in affirming the minimum $50 per month ordered for a period of retroactive child support when there was no evidence of the father's income, held that "in the absence of evidence establishing that $50 per month is excessive, the amount is presumptively correct." Sylvis v. Walling, 248 Neb. 168, 174-175, 532 N.W.2d 312, 316 (1995).

In support of his argument that he presented sufficient evidence to rebut the presumed correctness of the Nebraska Child Support Guidelines, specifically the minimum support provision discussed above, Dennis cites to cases which discuss the obligor's ability to pay support.

First, Dennis cites to the case of Hamm v. Hamm, 228 Neb. 294, 299, 422 N.W.2d 336, 340 (1988), which stated that "while the cost of caring for a child is an important consideration in determining child support, equally important is the father's ability to make the payments. It is not advantageous to either party to place the payments for child support beyond the reach or capability of the father." (quoting Bird v. Bird, 205 Neb. 619, 621, 288 N.W.2d 747, 748 (1980)). See, also, Hanson v. Rockwell, 206 Neb. 299, 301, 292 N.W.2d 786, 787 (1980). We note that none of these cases involved reductions in child support below the minimum child support amount of $50 set forth in the Nebraska Child Support Guidelines. See Hamm v. Hamm, supra (reducing child support from $350 per month to $200 per month); Bird v. Bird, supra, (modifying child support from $375 per month to $250 per month); Hanson v. Rockwell, supra, (affirming a child support order of $15 per week based on the ability of the obligor to pay). Furthermore, only the Hamm decision was made after the Nebraska Child Support Guidelines had taken effect.

Next, Dennis cites to State v. Porter, 259 Neb. 366, 371, 610 N.W.2d 23, 27 (2000) for the proposition that "a court should not be permitted to impose a judgment and itself make the payment of that judgment impossible." (quoting Ohler v. Ohler, 220 Neb. 272, 277, 369 N.W.2d 615, 619 (1985)). However, the Porter case involved an initial determination of an incarcerated father's...