Lasu v. Issak ( 2015 )

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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
LASU v. ISSAK
Cite as 23 Neb. Ct. App. 83Mirab Lasu, appellee, v.
Hussein Issak, appellant.
___ N.W.2d ___
Filed July 28, 2015. No. A-14-478.
1. Appeal and Error. In order to be considered by an appellate court, an
alleged error must be both specifically assigned and specifically argued
in the brief of the party asserting the error.
2. Affidavits: Appeal and Error. A district court’s denial of in forma
pauperis status under Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is
reviewed de novo on the record based on the transcript of the hearing or
the written statement of the court.
3. Child Custody: Property Division: Child Support: Alimony.
Domestic matters such as child custody, division of property, child sup-
port, and alimony are entrusted to the discretion of trial courts.
4. Appeal and Error. A trial court’s determinations on domestic matters
are reviewed de novo on the record to determine whether there has been
an abuse of discretion by the trial judge.
5. Judgments: Appeal and Error. In reviewing orders on domestic mat-
ters, an appellate court conducts its own appraisal of the record to deter-
mine whether the trial court’s judgments are untenable such as to have
denied justice.
6. Child Support: Rules of the Supreme Court: Appeal and Error.
Interpretation of the Nebraska Child Support Guidelines presents a
question of law, regarding which an appellate court is obligated to
reach a conclusion independent of the determination reached by the
court below.
7. Fees: Time: Appeal and Error. After the district court denies a request
to proceed in forma pauperis, the appellant has 30 days to appeal the
ruling or proceed by paying the docket fee.
8. Child Support: Rules of the Supreme Court: Presumptions.
In general, child support payments should be set according to the
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Decisions of the Nebraska Court of A ppeals
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LASU v. ISSAK
Cite as 23 Neb. Ct. App. 83Nebraska Child Support Guidelines, which are applied as a rebuttable
presumption.
9. ____: ____: ____. All orders for child support obligations shall be estab-
lished in accordance with the provisions of the Nebraska Child Support
Guidelines unless the court finds that one or both parties have produced
sufficient evidence to rebut the presumption that the guidelines should
be applied.
10. Child Support: Rules of the Supreme Court. The trial court may
deviate from the Nebraska Child Support Guidelines whenever the
application of the guidelines in an individual case would be unjust
or inappropriate.
11. ____: ____. The main principle behind the Nebraska Child Support
Guidelines is to recognize the equal duty of both parents to contrib-
ute to the support of their children in proportion to their respective
net incomes.
12. ____: ____. Absent a clearly articulated justification, any deviation from
the Nebraska Child Support Guidelines is an abuse of discretion.
13. ____: ____. If the district court fails to indicate that a deviation from
Neb. Ct. R. § 4-218 (rev. 2014) is warranted, it abuses its discretion if its
child support order drives the obligor’s income below the poverty line
set forth in § 4-218.
14. Child Support. There is no precise mathematical formula for calculat-
ing child support when subsequent children are involved.
15. ____. Calculation of child support when subsequent children are
involved is left to the discretion of the court as long as the court consid-
ered the obligations to both families and the income of the other parent
of the subsequent children.
16. Child Support: Rules of the Supreme Court. When a deviation
from the Nebraska Child Support Guidelines is appropriate, the trial
court should consider both parents’ support obligations to all children
involved in the relationships.
17. Child Support. In considering the obligation to subsequent children, the
trial court should take into consideration the income of the other parent
of these children as well as any other equitable considerations.
18. ____. The specific formula for making calculations for the obligation to
subsequent children is left to the discretion of the trial court, as long as
the basic principle that both families are treated as fairly as possible is
adhered to.
19. ____. In ordering child support, a trial court has discretion to choose if
and how to calculate the deviation, but must do so in a manner that does
not benefit one family at the expense of the other.
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LASU v. ISSAK
Cite as 23 Neb. Ct. App. 8320. Child Support: Rules of the Supreme Court. A parent’s support,
childcare, and health care obligation shall not reduce his or her net
income below the minimum net monthly obligation for one person, or
the poverty guidelines updated annually in the Federal Register by the
U.S. Department of Health and Human Services under authority of 42
U.S.C. § 9902(2), except minimum support may be ordered as defined
in Neb. Ct. R. § 4-209.
21. ____: ____. Under Neb. Ct. R. § 4-218 (rev. 2014), the minimum net
monthly child support obligation for one person is derived from the
Federal Register poverty guidelines.
22. Child Support. When dealing with a situation where a parent’s house-
hold is not a one-person household, the poverty guidelines as updated
annually in the Federal Register should be used as the resource for
determining the basic subsistence level for that household.
23. ____. To determine an obligor’s net income for calculating support obli-
gations, a court subtracts the following annualized deductions from the
obligor’s gross income: taxes, FICA, allowable retirement contributions,
previous court-ordered child support to other children, and allowable
voluntary support payments to other children.
24. Child Support: Rules of the Supreme Court. Under the Nebraska
Child Support Guidelines, to determine if the obligor’s income exceeds
the minimum subsistence level, a court deducts the obligor’s sup-
port obligations that are specified in the guidelines from the obligor’s
net income.
25. ____: ____. When an obligor’s combined household income is below
the poverty guidelines as updated annually in the Federal Register, the
district court should order minimum support pursuant to Neb. Ct. R.
§ 4-209 or otherwise set forth specific reasons for deviating from the
basic subsistence requirement.
26. ____: ____. Under the Nebraska Child Support Guidelines, it is recom-
mended that 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.
27. Child Support. When determining child support in a complex multi­
family situation, trial courts should be careful not to order a dispro-
portionate amount of a child support obligor’s net income to go to the
children at issue and the goal must be for fairness for all the children for
whom a parent must provide support.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Reversed and remanded with directions.
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LASU v. ISSAK
Cite as 23 Neb. Ct. App. 83Patrick McCormick for appellant.
Brandie M. Fowler and Kyle C. Allen, of Higgins Law, for
appellee.
Inbody, Pirtle, and Bishop, Judges.
Bishop, Judge.
Hussein Issak appeals from a decree of paternity entered
by the Douglas County District Court, which established his
paternity of two minor children he had with Mirab Lasu and
ordered him to pay child support in the amount of $613 per
month. On appeal, Issak argues that the district court did not
properly consider the federal poverty guidelines when estab-
lishing his support obligation; namely, he argues the district
court failed to take into consideration that he is the head of a
10-person household where the combined income is below the
federal poverty guidelines.
This case requires us to address language contained at Neb.
Ct. R. § 4-218 (rev. 2014) which has evaded consideration by
our appellate courts to date. In 2014 (the year applicable to this
appeal), § 4-218 set forth a basic subsistence limitation based
upon a “minimum of $973 net monthly for one person, or the
poverty guidelines updated annually in the Federal Register.”
(Emphasis supplied.) We conclude that the italicized language
requires looking at the poverty guideline table found in the
Federal Register when an obligor’s household consists of more
than one person. Since § 4-218 was not properly considered by
the district court in determining child support in this case, we
reverse, and remand with directions.
FACTUAL BACKGROUND
Issak was married in Kenya before he and his wife moved
to the United States. Issak and his wife have a total of eight
children together, three born in Kenya (in 1999, 2000, and
2002) and five born in Douglas County, Nebraska (in 2006,
2008, 2010, 2012, and 2013). At all times during the district
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LASU v. ISSAK
Cite as 23 Neb. Ct. App. 83court proceedings below, Issak and his wife remained married
and lived together.
While still married to his wife, Issak also had two children
with Lasu: Samuel Lasu, born in 2010, and Daniel Lasu, born
in 2012. Lasu also has six children from a previous marriage;
two reside with her.
PROCEDURAL BACKGROUND
On April 10, 2012, Lasu filed a complaint for paternity,
custody, and support against Issak, alleging that he was the
biological father of her minor child, Samuel. According to
a motion filed by Lasu on July 3, the parties had entered
into an agreement resolving all issues in her complaint, and
on July 16, the district court entered a decree of paternity
and support, ordering Issak to pay $500.54 per month for
Samuel’s support.
On July 25, 2012, Issak filed a motion to vacate the pater-
nity decree (through newly retained counsel), alleging that he
did not know or understand the contents of the decree and
that his support obligation brought him below the poverty line
for his household (including Issak, his wife, and their seven
children at the time of the motion). Following a hearing, the
court entered an order on August 1, granting Issak’s motion
to vacate.
On August 23, 2012, without leave of court, Lasu filed
an amended complaint against Issak for paternity, custody,
and support seeking to establish paternity and support for a
second minor child, Daniel, born subsequent to her initial
complaint for paternity. Upon Issak’s request, the court treated
this amended complaint as the operative complaint and per-
mitted Issak to file an answer to the amended complaint on
August 29.
No action was taken in the case for several months, and in
February 2013, Lasu’s attorney was permitted to withdraw.
On May 3, 2013, through newly retained counsel, Lasu
filed a motion for leave to file a second amended complaint
for paternity and a motion for temporary orders. The court
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LASU v. ISSAK
Cite as 23 Neb. Ct. App. 83entered an order on June 4, granting Lasu’s motion to file a
second amended complaint. Lasu filed her second amended
complaint on July 2, seeking the court to establish Issak as the
father of both Samuel and Daniel, to award her sole physical
custody, and to order Issak to pay child support. Issak filed
an answer on July 23, raising the “Affirmative Defense” and
“Counterclaim” that the Nebraska and federal poverty guide-
lines are applicable to the case.
On August 28, 2013, Lasu filed another motion for tempo-
rary orders. The district court entered a temporary order on
November 1, awarding Lasu sole legal and physical custody of
Samuel and Daniel, and ordering Issak to pay $591 per month
in child support commencing November 1.
On November 5, 2013, Issak filed a motion for relief from
the temporary order, alleging that he and his wife added
another child to their household subsequent to his July 25,
2012, motion to vacate (for a total of eight minor children
with his wife), and he sought a deviation from the child
support guidelines, seeking to pay $50 per month for both
Samuel and Daniel. Lasu filed an objection to this motion
on December 6, 2013. The court overruled Issak’s motion on
December 19.
Apparently, the parties were able to resolve all issues raised
in Lasu’s second amended complaint with the exception of
Issak’s child support obligation for Samuel and Daniel, and
trial was held on April 16, 2014, to resolve that sole issue. The
parties stipulated that Issak was the natural father of Samuel
and Daniel; that Lasu was a fit and proper person to have sole
legal and physical custody of the minor children, subject to
Issak’s weekly visitation; that Lasu would pay up to $480 of
nonreimbursable medical expenses, per child, per year; and
that Lasu would claim the dependency exemptions.
For purposes of calculating child support, the parties stipu-
lated that Issak’s wife’s total monthly income was $1,386.67
and that she and Issak had eight minor children in their
household. The parties further stipulated that Lasu pays $171
in child support to the father of her six other children, two
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LASU v. ISSAK
Cite as 23 Neb. Ct. App. 83of whom reside in her household. The parties further stipu-
lated to the exhibits entered into evidence: Issak’s 2013 tax
return, child support payment history report from the Nebraska
Department of Health and Human Services, Lasu’s pay state-
ment, Issak’s pay statement, Lasu’s 2013 tax return, and two
proposed child support calculations submitted by Issak and
Lasu as aids to the court.
Both parties used $975 for Lasu’s total monthly income and
$2,415.88 for Issak’s total monthly income in their child sup-
port calculations. Lasu’s proposed calculation provided that
Issak’s child support obligation was $613 for two children and
was $423 for one. Lasu arrived at this figure by first complet-
ing a joint physical custody support calculation between Issak
and his wife (using his wife’s stipulated income), and she
determined that Issak would hypothetically owe his wife $318
per month in support under a joint physical custody arrange-
ment. Lasu represented to the court that this first calculation
“already contemplates the poverty guidelines and makes the
required adjustment pursuant to the Nebraska Child Support
Guidelines Section 4-218.” Lasu then stated she provided
Issak credit for his preborn children by incorporating that $318
figure into her proposed calculation between Issak and Lasu as
Issak’s “regular support for other children.”
Issak calculated that his support obligation for his two
children with Lasu would be $91, using a two-step calcula-
tion. First, he calculated what child support he would have to
pay his wife if she was awarded custody of six of their eight
children (because the income shares table went up to only
six children); his calculation resulted in $1,231 in monthly
child support. Issak then used that figure as a credit to be
applied in his calculation of support owed to Lasu for Samuel
and Daniel.
On May 12, 2014, the court entered an order for pater-
nity, custody, and support. The court’s order states that the
parties had reached an agreement with regard to paternity
and custody, and adduced evidence related to Issak’s obli-
gation to provide child support to Samuel and Daniel. The
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LASU v. ISSAK
Cite as 23 Neb. Ct. App. 83order established Issak as the father of the minor children,
and Lasu was awarded sole legal and physical custody. The
court adopted Lasu’s proposed child support calculation and
ordered Issak to pay support in the amount of $613 per month
for both children commencing May 1, 2014. The court found
and ordered that Lasu’s “Exhibit 16 comports with the spirit
and intent of Prochaska v. Prochaska, 6 Neb. Ct. App. 302,
573 N.W.2d 777 (1998), as well as Nebraska Child Support
Guideline Sections 4-205 and 4-220 . . . . This amount and
the deviation are in the best interests of the minor children
at issue.” The net income figure for Issak relied upon by the
court was $1,729, which was arrived at after deductions for
taxes, FICA, retirement, and $318 attributed to support for
Issak’s other children.
On May 22, 2014, Issak filed a notice of appeal and an
application to proceed in forma pauperis; attached to his appli-
cation was a poverty affidavit asserting he has eight children
and a wife who reside in his household and averring that
his monthly expenses exceeded his adjusted gross income
and that he receives “approximately $700 per month from
the Supplemental Nutrition Assistance Program.” On May 23,
Lasu filed an objection to Issak’s application to proceed in
forma pauperis. A hearing on Issak’s application was held on
June 11. Issak testified he thought he had about $90 in his
bank account. On June 16, the district court entered an order
concluding that Issak had not established evidence that he was
unable to pay the expected fees and costs for his appeal, and it
denied his application to proceed in forma pauperis.
On July 14, 2014, Issak paid the statutory docket fee; he did
not file an appeal of the denial of his application to proceed in
forma pauperis.
ASSIGNMENTS OF ERROR
On appeal, Issak argues, summarized and restated, that the
district court erred (1) in denying his application to proceed in
forma pauperis and (2) in determining that his child support
obligation was $613 per month commencing May 1, 2014.
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LASU v. ISSAK
Cite as 23 Neb. Ct. App. 83[1] Although Issak appears to argue in the body of his brief
about the temporary child support orders and award of attorney
fees awarded to Lasu during the pendency of the action, Issak
did not assign any errors beyond the two stated above. In order
to be considered by an appellate court, an alleged error must be
both specifically assigned and specifically argued in the brief
of the party asserting the error. Irwin v. West Gate Bank, 288
Neb. 353, 848 N.W.2d 605 (2014).
STANDARD OF REVIEW
[2] A district court’s denial of in forma pauperis status under
Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is reviewed de
novo on the record based on the transcript of the hearing or the
written statement of the court. Peterson v. Houston, 284 Neb.
861, 824 N.W.2d 26 (2012).
[3-5] Domestic matters such as child custody, division of
property, child support, and alimony are entrusted to the discre-
tion of trial courts. Gress v. Gress, 274 Neb. 686, 743 N.W.2d
67 (2007). A trial court’s determinations on such issues are
reviewed de novo on the record to determine whether there
has been an abuse of discretion by the trial judge. Id. Under
this standard, an appellate court conducts its own appraisal of
the record to determine whether the trial court’s judgments are
untenable such as to have denied justice. Id.
[6] Interpretation of the Nebraska Child Support Guidelines
presents a question of law, regarding which an appellate court
is obligated to reach a conclusion independent of the determi-
nation reached by the court below. Gress, supra.
ANALYSIS
Denial of In Forma Pauperis.
[7] We first address Issak’s claim that the district court
erred in denying his request to proceed in forma pauperis
on appeal. After the district court denied his request to pro-
ceed in forma pauperis on June 16, 2014, he had 30 days to
appeal the ruling or proceed by paying the docket fee. See
§ 25-2301.02(1). See, also, Glass v. Kenney, 268 Neb. 704,
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LASU v. ISSAK
Cite as 23 Neb. Ct. App. 83687 N.W.2d 907 (2004); Martin v. McGinn, 265 Neb. 403,
657 N.W.2d 217 (2003). Instead of appealing the denial of
his request for in forma pauperis status, Issak paid the statu-
tory docket fee on July 14, 2014. Having chosen to pay the
docket fee rather than appeal the denial of his request for in
forma pauperis status, Issak cannot now be heard to complain
of this issue.
Child Support.
Issak argues the district court abused its discretion in its
determination of his child support obligation for Samuel and
Daniel, because the income for his family of 10 is below the
poverty guidelines as updated in the Federal Register, even
prior to any order of child support, and therefore the court
should have ordered him to pay only minimum support pursu-
ant to Neb. Ct. R. § 4-209.
In its May 12, 2014, “Order for Paternity, Custody &
Support,” the district court found and ordered that Lasu’s
“Exhibit 16 comports with the spirit and intent of Prochaska
v. Prochaska, 6 Neb. Ct. App. 302, 573 N.W.2d 777 (1998), as
well as Nebraska Child Support Guideline Sections 4-205
and 4-220 . . . . This amount and the deviation are in the best
interests of the minor children at issue.” The court’s reference
to Prochaska v. Prochaska, 6 Neb. Ct. App. 302, 573 N.W.2d
777 (1998), indicates that consideration was given to Issak’s
obligation to support children in more than one family, and
the court’s references to Neb. Ct. R. §§ 4-205 (deductions)
and 4-220 (duty to support subsequent children as defense
for upward modification of existing support order) indicate
consideration of these particular factors. However, there is
no indication that the court considered the application of
§ 4-218 (basic subsistence limitation) on the child support
ordered; perhaps because on its face, the child support order
of $613 subtracted from the net monthly income of $1,729
used by the court left Issak with $1,116, which kept Issak
above $973 (the poverty guideline basic subsistence level for
one person in 2014). However, as noted at the outset of this
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Decisions of the Nebraska Court of A ppeals
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LASU v. ISSAK
Cite as 23 Neb. Ct. App. 83opinion, § 4-218 sets forth only the poverty guideline for one
person—it does not set forth the basic subsistence levels for
households consisting of more than one person. Rather, it
appears to direct us to the Federal Register for the poverty
guideline figures for households in excess of one person. In
the more common divorce or paternity situation, a noncusto-
dial parent’s household may often consist of just one person;
however, as obvious in this case, a noncustodial parent’s
household may consist of a spouse and other dependent chil-
dren. In such cases, taking the poverty guideline figure that
has been calculated for one person’s basic subsistence and
applying that same figure to a much larger family results in
an inequitable outcome.
This court is mindful that a trial court is faced with a
very difficult task when trying to calculate a fair amount of
child support in this type of multifamily situation. In Henke
v. Guerrero, 13 Neb. Ct. App. 337, 692 N.W.2d 762 (2005), this
court reviewed a paternity action involving a minor child born
to a mother and father not married to each other, but each mar-
ried to other people with whom they also had children. We
noted the complex multifamily situation and concluded that
the child support and retroactive support ordered in that case
resulted in a disproportionate amount of the father’s net income
going to the child at issue and that our concern must be for
fairness for all the children. We also recognized that a perfectly
fair economic result cannot be expected. Id.
In Henke, supra, the father was ordered to pay $252 per
month retroactive to the first day of the month following the
child’s birth. Since the order was entered 43 months after
the child’s birth, this resulted in an immediate arrearage of
$10,836, excluding interest. The father was ordered to pay
$50 per month (in addition to current support of $252 per
month) to address the arrearage. In considering the father’s
net income of $1,048.97 and the basic subsistence limitation
of $748 for one person at that time, this court noted that the
$252 child support order and the monthly $50 retroactive
payment would leave the father with a monthly income $1.03
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Cite as 23 Neb. Ct. App. 83below the basic subsistence limitation. This court stated that
the father must meet his current obligations for a family of
five and concluded that the circumstances and equities—the
father’s lack of ability to pay and the needs of his other chil-
dren—required a deviation as to the retroactive support. This
court modified the retroactive support from $252 per month
to $50 per month, thereby reducing the arrearages to a total
of $2,150.
We note that this court in Henke, supra, did not consider
the poverty guidelines for a family of five when reviewing
the father’s support obligation, and instead, it appeared to
rely solely on the basic subsistence limitation for one person.
However, in Henke, this court was focused on the application
of the poverty guidelines with respect to the retroactive sup-
port only, since that was the error assigned on cross-appeal
by the father. It was not argued that the poverty guidelines
should be applied for a family of 5 when determining child
support, as is being argued in the present case for Issak’s fam-
ily of 10.
[8-10] In general, child support payments should be set
according to the Nebraska Child Support Guidelines, which are
applied as a rebuttable presumption. See Pearson v. Pearson,
285 Neb. 686, 828 N.W.2d 760 (2013). All orders for child
support obligations shall be established in accordance with the
provisions of the guidelines unless the court finds that one or
both parties have produced sufficient evidence to rebut the pre-
sumption that the guidelines should be applied. Id. See, also,
Neb. Ct. R. § 4-203 (rev. 2011). The trial court may deviate
from the guidelines whenever the application of the guide-
lines in an individual case would be unjust or inappropriate.
Pearson, supra.
[11-13] The main principle behind the Nebraska Child
Support Guidelines is to recognize the equal duty of both
parents to contribute to the support of their children in propor-
tion to their respective net incomes. See Neb. Ct. R. § 4-201.
However, absent a clearly articulated justification, any devia-
tion from the guidelines is an abuse of discretion. Gress v.
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Cite as 23 Neb. Ct. App. 83Gress, 274 Neb. 686, 743 N.W.2d 67 (2007). If the district
court fails to indicate that a deviation from § 4-218 (basic sub-
sistence) is warranted, it abuses its discretion if its child sup-
port order drives the obligor’s income below the poverty line
set forth in § 4-218. See id.
[14-19] The instant case involves numerous minor children
from various different relationships: Issak and his wife have
a total of eight minor children together; while still married
to his wife, Issak had two children with Lasu; and Lasu has
six children from a previous marriage, two of whom reside
with her. Both Lasu and the Issaks receive governmental
assistance. There is no precise mathematical formula for cal-
culating child support when subsequent children are involved.
See Brooks v. Brooks, 261 Neb. 289, 622 N.W.2d 670 (2001).
Such calculation is left to the discretion of the court as long
as the court considered the obligations to both families and
the income of the other parent of the subsequent children. See
id. Subsequent familial relationships vary widely from case to
case. Id. When a deviation from the guidelines is appropriate,
the trial court should consider both parents’ support obliga-
tions to all children involved in the relationships. Brooks,
supra. In considering the obligation to those subsequent chil-
dren, the trial court should take into consideration the income
of the other parent of these children as well as any other equi-
table considerations. Id. The specific formula for making such
calculations is left to the discretion of the trial court, as long
as the basic principle that both families are treated as fairly
as possible is adhered to. Id. In other words, a trial court has
discretion to choose if and how to calculate the deviation, but
must do so in a manner that does not benefit one family at the
expense of the other. See Emery v. Moffett, 269 Neb. 867, 697
N.W.2d 249 (2005).
The district court in the instant case was faced with some-
what unusual and complicated familial relationships, and it
chose to adopt Lasu’s proposed child support calculations
to account for Issak’s eight minor children who he supports
with his wife. The court’s worksheet attached to the decree
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Cite as 23 Neb. Ct. App. 83purported to provide Issak with a $318 credit as the hypo-
thetical child support he would owe to his wife for six of their
eight children if they shared joint physical custody, bringing
his net monthly income to $1,729.17. This resulted in Issak
owing $613 per month in child support for Samuel and Daniel.
However, giving Issak a credit of only $318 to support the
eight children in his current household while paying $613 to
support the two in Lasu’s household is on its face not equi-
table. A significant flaw in Lasu’s proposed calculation is the
premise underlying the joint physical custody calculator she
used which provides for a lower monthly child support obli-
gation but must also include contributions for reasonable and
necessary direct expenses such as clothing and extracurricular
costs associated with the children. See Neb. Ct. R. § 4-212
(rev. 2011). These additional contributions were not considered
in Lasu’s calculation. Based upon Lasu’s proposed calculation,
after subtracting the $613 child support obligation from Issak’s
net income, his remaining income would be $1,116.17 per
month, which on its face is above the basic subsistence level
of $973 for one person in 2014. See § 4-218.
[20] However, Issak’s central argument on appeal is that the
district court’s calculations essentially treated him as a single
person, when in reality he is the head of a 10-person household
whose total household income is below the poverty guide-
lines updated annually in the Federal Register. Issak relies on
§ 4-218, which provided:
A parent’s support, child care, and health care obliga-
tion shall not reduce his or her net income below the
minimum of $973 net monthly for one person, or the pov-
erty guidelines updated annually in the Federal Register
by the U.S. Department of Health and Human Services
under authority of 42 U.S.C. § 9902(2), except minimum
support may be ordered as defined in § 4-209.
(Emphasis supplied.) Our courts have never explicitly addressed
the latter part of § 4-218 referencing the poverty guidelines in
the Federal Register.
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Cite as 23 Neb. Ct. App. 83[21,22] It is clear that under § 4-218, the minimum of
“$973 net monthly for one person” is derived from the Federal
Register poverty guidelines. The 2014 Federal Register pro-
vided that the poverty guideline for a household of one was
$11,670 in annual income, which equals $973 per month.
However, as Issak points out, he is not part of a one-person
household; rather, he is married and supporting eight other
minor children with his wife. Section 4-218 provides that a
parent’s support, childcare, and health care obligation shall
not reduce his or her net income below $973 net monthly
“for one person.” By logical extension, when dealing with
a situation where a parent’s household is not a one-person
household, as in the instant case, the poverty guidelines as
updated annually in the Federal Register should be used as
the resource for determining the basic subsistence level for
that household.
[23-26] Issak, his wife, and their 8 children constitute
a household of 10. According to the 2014 poverty guide-
lines set forth in the Federal Register, the poverty guideline
for a household of 10 was $48,210 in annual income, or
$4,018 per month. In looking at the child support worksheet
attached to the district court’s order, Issak’s net monthly
income at the time of trial was $2,047.17 and his wife’s net
monthly income was $1,280.77, after providing them with
the applicable deductions set forth in § 4-205. See, also,
Molczyk v. Molczyk, 285 Neb. 96, 825 N.W.2d 435 (2013)
(to determine obligor’s net income for calculating support
obligations, court subtracts these annualized deductions from
obligor’s gross income: taxes, FICA, allowable retirement
contributions, previous court-ordered child support to other
children, and allowable voluntary support payments to other
children; to determine if obligor’s income exceeds minimum
subsistence level, court deducts obligor’s support obligations
that are specified in guidelines from obligor’s net income).
The combined monthly net income available to the Issaks’
household of 10 in 2014 was $3,328, roughly $690 below
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LASU v. ISSAK
Cite as 23 Neb. Ct. App. 83the poverty guidelines of $4,018 per month as set forth in the
Federal Register. Therefore, the Issaks’ combined household
income fell below poverty guidelines even before any award
of child support was entered. Because Issak’s income, even
when combined with his wife’s income, was below the poverty
guidelines for a household of 10 (as updated annually in the
Federal Register), see § 4-218, the district court should have
ordered minimum support pursuant to § 4-209 or otherwise set
forth specific reasons for deviating from the basic subsistence
requirement. Section 4-209 provides that in very low income
cases, “a minimum support of $50, or 10 percent of the obli-
gor’s net income, whichever is greater, per month be set.” Ten
percent of Issak’s net income would be $205 in child support
for Samuel and Daniel.
[27] Similar to our earlier discussion of Henke v. Guerrero,
13 Neb. Ct. App. 337, 692 N.W.2d 762 (2005), we note again
here that when determining child support in a complex multi­
family situation, trial courts should be careful not to order
a disproportionate amount of a child support obligor’s net
income to go to the children at issue, and that the goal must
be for fairness for all the children for whom a parent must
provide support. One way that might be accomplished in this
case, for example, is to take only Issak’s monthly net income
of $2,047 into consideration when thinking about how much
of that net income would be needed to support 10 children if
his was the only source of income. Looking at a total monthly
net income of $2,000 in the child support guidelines income
shares table, we can see that $1,025 in monthly child support
would be allocated to provide for six children. The income
shares table stops at six children, and while the guidelines tell
us how to calculate child support for income that exceeds the
levels provided for in the table, the guidelines do not tell us
how to calculate child support when a parent is responsible
for supporting more than six children, as in the case before
us. Pursuant to the table, a monthly net income of $2,000 calls
for child support in the following amounts: $507 (one child),
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Cite as 23 Neb. Ct. App. 83$723 (two children), $830 (three children), $895 (four chil-
dren), $960 (five children), and $1,025 (six children). At this
income level, once reaching three children, we can see that
the increments increase by $65 for each additional child. If
we extrapolate that out to 10 children (8 in current household,
2 in Lasu’s), the guidelines would suggest that $1,285 per
month would be recommended to support those 10 children,
or $128.50 per child. Ordering minimum support in this case
pursuant to § 4-209 results in Issak owing $205 per month
for the two children in Lasu’s household, or $102.50 per
child (this per child figure is supplied only for the purpose of
showing comparable resources for each of Issak’s 10 children
and is not to be construed to mean that Issak’s child support
would reduce to $102.50 if only one of his children with Lasu
remained eligible for child support). The minimum support
based upon 10 percent of Issak’s net income results in a much
more fair allocation of Issak’s net resources to all of Issak’s
10 children. If we use our calculation of $1,285 per month in
child support for 10 children, the district court’s child support
order of $613 per month for 2 children would result in almost
half of the child support resources going to just 2 children,
with the other half of the resources being shared by 8 children.
As stated previously, a trial court has discretion to choose if
and how to calculate a deviation where multiple families are
involved, but must do so in a manner that does not benefit one
family at the expense of the other. See Emery v. Moffett, 269
Neb. 867, 697 N.W.2d 249 (2005).
We therefore reverse the portion of the trial court’s order
setting the amount of child support to be paid by Issak, and
consistent with our analysis above, we remand the cause to the
district court with directions to enter an order finding Issak’s
child support obligation to be $205 per month for Samuel and
Daniel effective May 1, 2014. Because of the many variables
already discussed that can influence child support calcula-
tions in a multifamily case like this, neither the district court
nor this court can calculate at this time what Issak would
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Cite as 23 Neb. Ct. App. 83owe in child support payable to Lasu when there is just one
remaining minor child owed support. The parties will have to
consider the familial circumstances, financial resources, and
poverty guidelines, if applicable, relevant at that time and
seek modification accordingly if warranted.
CONCLUSION
We conclude that Issak’s household income was below the
federal poverty guidelines for a household of 10 and that thus,
he should have been ordered to pay only minimum support. We
therefore reverse the district court’s order of child support and
remand the cause to the district court with directions to enter
an order finding Issak’s child support obligation to be $205 per
month for Samuel and Daniel effective May 1, 2014.
R eversed and remanded with directions.