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Nebraska Appellate Caselaw
Child Support/ Paternity
Compiled by William MacKenzie, Deputy Sarpy County Attorney, in cooperation with the Nebraska Child Support Enforcement Association (NCSEA)
(updated 14 August, 2001)
The following cases relate to child support practice in Nebraska. While the cases listed here do not represent an exhaustive list in this area of law, they should prove of benefit to the practitioner.
Please utilize the Subject Index to locate caselaw by topic. As many appellate opinions touch upon multiple topics relating to child support, the same case may appear under several topic areas listed in the index.
Recently the Nebraska State Bar Association has implemented its Casemaker service, which is available to all attorneys who are members of the NSBA. This service should evolve to be of great legal research assistance to members of the bar.
Comments, corrections and additions are welcome! Please email Bill MacKenzie or call 402.593.4464
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Supreme Court Link Nebraska Judicial Branch
Standard of Review:
Gress v. Gress, 257 N.W.2d 112, 596 N.W.2d 8 (1999)
Rhoades v. Rhoades, 258 Neb 721, 605 N.W.2d 454 (2000)
State v. Porter, 259 Neb. 366, 610 N.W.2d 23 (2000)
Gammel v. Gammel, 259 Neb. 738 (Filed June 16, 2000. No. S-99-307)
Holding: Modification of the amount of child support payments is entrusted to the discretion of the trial court, and although, on appeal, the issue is reviewed de novo on the record, the decision of the trial court will be affirmed absent an abuse of discretion. Also see Hanthorn v. Hanthorn, 236 Neb 225, 460 N.W.2d 650 (1990)
Substitution of Social Security for Child Support:
Gress v. Gress, 257 Neb 112, 596 N.W.2d 8 (1999)
Holding: Social Security payments made to a parent's child on account of the parent's disability should be considered as credits toward the parent's court-ordered support obligation in the absence of circumstances making the allowance of such a credit inequitable.
Holding: The custodial parent should have the right to adduce evidence of any inequity that might occur as a result of crediting social security benefits to court-ordered child support.
Holding: Excess Social Security dependency benefits are to be credited against child support arrearage which has accrued since the date of the occurrence which entitled the parent to such benefits, unless the allowance of such credit in a particular case would be inequitable.
Holding: The credit allowed for social security benefit payments is an equitable credit, which in no way modifies the underlying support obligation.
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Child Support: What it is; How it is calculated...
General Concepts
Sears v. Larson, 259 Neb. 760 (Filed June 16, 2000. No. S-99-450)
In general, child support payments should be set according to the Nebraska Child Support Guidelines established pursuant to Neb. Rev. Stat. § 42-364.16 (Reissue 1998).
.The Nebraska Child Support Guidelines are applied as a rebuttable presumption, and all orders for child support shall be established in accordance with the provisions of the guidelines unless the court finds that one or both of the parties have produced sufficient evidence to rebut the presumption that the guidelines should be applied.
The Nebraska Child Support Guidelines permit a deviation whenever the application of the guidelines in an individual case would be unjust or inappropriate.
Helstrom v. Yonker, 249 Neb. 449, 544 N.W.2d 449 (1996)
Holding: The proper amount of child support is determined not necessarily by a parent's earnings, but by a parent's "earning capacity."
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When all else fails
Welch v. Welch, 246 Neb. 435, 519 N.W.2d 262 (1994)
Holding: Child support may be suspended by a court when the custodial parent deprives the noncustodial parent of visitation and there is no showing that the children are in need.
However, the general rule is...
Holding: The failure to pay child support does not justify a parent's unilateral withdrawl of visitation rights, and a failure to allow visitation does not justify a parent's unilateral nonpayment of support.
~ ~ ~
Incarceration is not grounds for suspending child support:
Ohler v. Ohler, 220 Neb 272, 369 N.W.2d 615 (1985)
Holding: Incarceration resulting in reduction or elimination of income or assets does not constitute a material change in circumstances as to warrant temporary termination of child support obligation.
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Earning capacity:
Section 43-364(4)
In determining the amount of child support to be paid by a parent, the court shall consider the earning capacity of each parent and the guidelines provided by the Supreme Court… for the establishment of child support obligations.
Grams v. Grams, 9 Neb. App. 994 Filed March 6, 2001. No. A-99-1467
Holding: When earning capacity is used as a basis for an initial determination of child support under the Nebraska Child Support Guidelines, there must be some evidence that the parent is capable of realizing such capacity through reasonable effort.
Holding: In determining the amount of child support to be paid by a parent, the parties’ income from all sources shall be used, but if applicable, earning capacity may be considered in lieu of a parent’s actual, present income and may include factors such as work history, education, occupational skills, and job opportunities.
Looking beyond AP's income in assessing CS amount is OK:
Lebrato v. Lebrato, 3 Neb. App. 505, 529 N.W.2d 90 (1995)
Holding: Additional income available to the NCP was properly considered in assessing the father's ability to pay c.s. (i.e. income of 2d wife)
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Whether to consider income from a parent's new spouse
Workman v. Workman, 262 Neb. 373, ___ NW2d ____; Filed August 10, 2001
Holding: The reasonable contributions of a parent’s cohabitant to household expenses should not be included in the parent’s gross income for purposes of determining child support, but may be considered in determining whether the circumstances warrant a deviation from the Nebraska Child Support Guidelines.
Holding: In determining the effect of a parent’s cohabitation on his or her child support obligation, the court must consider, among other things, the living conditions of the parties and the minor child, whether the cohabitant resides with the custodial or noncustodial parent, the extent to which the presence of the cohabitant and the reasonable economic choices of the parties have increased household expenses, and whether it would be fair and equitable to all concerned to determine child support based, in part, on those factors.
Holding: An appropriate inquiry into the effect of a cohabitant on child support requires that such an inquiry be conducted, not mathematically, but in the context of determining whether a deviation from the Nebraska Child Support Guidelines is appropriate.
Holding: This is not to suggest, however, that income may not be imputed to a parent under the Guidelines where a cohabitant’s contribution exceeds his or her fair share of household expenses or where a parent relies on the cohabitant’s contributions for support instead of reaching his or her earning capacity. Income for the purpose of child support is not necessarily synonymous with taxable income. Rhoades v. Rhoades, 258 Neb. 721, 605 N.W.2d 454 (2000).
Who Doesn't have to pay child support:
Custodial Parents cannot be ordered to PAY child support
Bondi v. Bondi, 255 Neb. 319, 586 N.W.2d 145 (1998)
Holding: A court may not order a CP to pay CS to a NCP during times of extended visitation between the child and the NCP. (reversed Sarpy Co. District Ct.)
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Step-Parents are generally not obligated to pay child support for someone else's child
Weinand v. Weinand, 260 Neb. 146, 616 NW2d 1 (2000)
See also: Hamilton v. Foster, 260 Neb. 887, Filed December 15, 2000. No. S-99-1349
Holding: In the absence of a statute, the common law does not impose a liability for support upon stepparents except in some instances where the stepparent voluntarily takes the stepchild into his or her family and assumes, in loco parentis, the obligations incident to a parental relationship.
Holding: Absent exceptional circumstances that invoke equitable principles, an ex-stepparent generally does not have a duty to support an ex-stepchild after the termination of the marriage to the child’s biological parent.
(Case involved a child born to the wife during marriage; her husband was, unknowingly, not the father. The husband continued his relationship with the child following wife's divorce from him and her moving in with child's biological father. Court, treating ex-husband as a step-parent, found the man had no financial duty to child.)
How long can child support obligation continue:
Zetterman v. Zetterman, 245 Neb 255, 512 N.W.2d 622 (1994)
Holding: A district court in a dissolution action may not order child support beyond the age of majority of a child over the objection of any parent. Note: In this case, appellant specifically agreed at the time of the divorce hearing to make child support payments in certain circumstances after the children reached the age of majority. He was held by the court to have to abide by this agreement. Query: What would happen in cases where the NCP failed to appear at the dissolution or paternity trial, and was subsequently ordered to provide support beyond age 19?
Holding: A district court, in the exercise of its broad jurisdiction over marriage dissolutions, retains jurisdiction to enforce all the terms of approved property settlement agreements, including agreements made to support children of the marriage past the age of majority.
Visitation not connected to Child Support
Welch v. Welch, 246 Neb. 435, 519 N.W.2d 262 (1994)
Emancipation:
Foxvog v. Foxvog,7 Neb. App. 92, 578 N.W.2d 916 (1998)
Holding: "Emancipation" defined; Quoting from Wulff v. Wulff, 243 Neb. 616, 500 N.W.2d 845 (1993): "To Emancipate means to free or release a child from the parental power, making the person released sui juris… 'Emancipation,' as the term is used in the law of parent and child, means the freeing of the child for the period of its minority from the care, custody, control and service of its parents… Complete emancipation gives to the minor his time and earnings and does away with the parent's right of custody and control…Emancipation occurs where the parent renounces all the legal duties and voluntarily surrenders all the legal rights of his position to the child or to others. In determining whether a child has been emancipated, the intention of the parent governs…"
Holding: Whether there has been an emancipation is a question of fact. What is emancipation is a question of law. Citing Wulff v. Wulff, supra
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For a discussion on how long child support can be ordered, see Zetterman v. Zetterman, 245 Neb 255, 512 N.W.2d 622 (1994)
Equity:
| Custody Switches | Estoppel |
Equitable Remedies:
Griess vs. Griess, 9 Neb. App. 105, 608 N.W.2d 217 (April 2000)
Holding: Equity can come into play to write an otherwise obvious wrong having to do with an award of child support, even when there is a potential (speculative) remedy at law.
Holding: While the general rule is that no credit will be given for prior voluntary overpayments, even if they are made under a mistaken belief that they are legally required, an exception can be granted if the facts warrant it.
Holding: Equitable remedies are a special blend of what is necessary, what is fair, and what is workable.
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Equitable Estoppel
Doctrine of Equitable Estoppel may serve to prevent party owed child support under terms of decree from enforcing terms of support order and collecting past due child support
Truman v. Truman, 256 Neb 628, 591 N.W.2d 81 (1999)
Holding: The rule against modification of accrued child support applies unless equitable estoppel is present. Elements of equitable estoppel are, as to the party estopped: (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at lest the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts, and as to the other party, (4) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (5) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (6) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment or prejudice.
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Custody switches without court approval disallowed:
Truman v. Truman, 256 Neb 628, 591 N.W.2d 81 (1999)
Holding: Parties in a dissolution proceeding cannot control the custodial disposition of the minor children by agreement.
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Jurisdiction
State Ex Rel. Cammarata v. Chambers, 6 Neb. App. 467, 574 N.W. 2d 530 (1998)
Holding: If the parties have an existing support order, the State is precluded from collaterally attacking that order by filing a separate petition under 43-512.03, even when their has been a de facto custody switch, resulting in a lack of a support order for 1 or more children. This is true even when the existing "support order" provides for no support, as in a split custody situation, or when the court otherwise finds that no support should be paid by the NCP.
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Act of intercourse in state = jurisdiction
State, Dept. of Social Services v. Cummings, 2 Neb App. 820, 515 N.W.2d 680 (1994)
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Unclean Hands:
Richardson vs. Anderson, 8 Neb. App. 923 (Jan. 2000) (Great facts!)
Factual summary: Non-able bodied parent can still pay child support. Businessman lived high and mighty until incarceration. NCP maintained a significant earning capacity after incarceration, despite becoming disabled, due to extensive business skills. There is no evidence that the man of considerable entrepreneurial experience could not become employed in a capacity which would enable him to earn significant income.
Holding: In cases in which a party owes past due alimony or child support, the courts have generally held that the failure to pay must be found to be willful failure in spite of an ability to pay before a request for modification of a decree may be dismissed on the basis of "unclean hands." Quoting Voichoiskie vs. Voichoiskie, 215 Neb. 775, 340 N.W.2d 442 (1983)
Holding: "He has the obligation to become employed in a capacity which would enable him to support (his minor child)" " A parent has no right to insist upon the pursuit of fruitless dreams of success. There comes a time when a parent who is a would-be-entrepreneur but is unsuccessful simply must become employed."
Statutory Interpretation:
Hoiengs v. County of Adams, 254 Neb. 64, 574 N.W.2d 498 (1998)
Holding: In the exposition of statutes, the reason and intent of the legislature will control the strict letter of the law when the latter would lead to palpable injustice or absurdity.
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Willers v. Willers, 255 Neb. 769, at 776 (1998)
Holding: ".... in considering and applying a statute, courts must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language thereof, considered in its ordinary sense."
..
Separating the wheat from the chaff
Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999)
Holding: "we now hold that a judgment can be vacated in part and upheld in part when a void portion of that judgment is severable from the valid portion. We understand the term "severable" to mean that the valid and void portions are not inextricably intertwined with each other; in other words, the valid portion does not have to depend or rely on the void portion in any way to stand on its own or to be carried out."
Retirement Deductions:
When does a plan qualify as Mandatory for purposes of child support guidelines?
Workman v. Workman, 262 Neb. 373, ____NW2d ____, Filed August 10, 2001
Holding: For purposes of determining whether retirement plan contributions are deductible from gross monthly income for purposes of child support calculations, we hold that the proper inquiry is whether the contribution is required by the applicable retirement plan in effect at the time of the calculation, not whether the parent could have selected another type of plan at some prior time.
Jurisdiction:
Jurisdiction continues even when one party leaves the state:
State Ex Rel. Gurnon v. Harrison, 245 Neb 295, 512 N.W.2d 386 (1994)
Holding: Once a court lawfully and properly acquires jurisdiction over a party, it retains it for the purpose of the entry of any judgment that might be proper under the pleadings and the evidence.
Act of Intercourse = jurisdiction over alleged father
State Dept. of Social Services v. Cummings, 2 Neb. App. 820, 515 N.W.2d 680 (1994)
Holding: Nonresident defendant's voluntary act of sexual intercourse with mother which resulted in conception of child in Nebraska showed sufficient minimum contacts with Nebraska such that Nebraska courts had jurisdicition over nonresident defendant in paternity action.
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© 2000 William P. MacKenzie - for the Nebraska Child Support Enforcement Association