Molina v. Salgado-Bustamante ( 2013 )

Decisions of the Nebraska Court of Appeals
MOLINA v. SALGADO-BUSTAMANTE 75
Cite as 21 Neb. App. 75file a motion for attorney fees could cure that defect by filing
a petition for further review, wait for the denial, and then file
a motion for attorney fees. Allowing this application would
encourage parties who were successful on appeal, but who
failed to timely file for attorney fees, to seek further review of
the minutest issue in the Nebraska Supreme Court simply so
they could request attorney fees.
CONCLUSION
Joshua failed to timely file his motion for attorney fees
when he failed to file it within 10 days from the date on which
we released the opinion in State on behalf of Keegan M. v.
Joshua M., supra. We therefore deny his motion.
Motion for attorney fees denied.
Nanci Molina, individually and as next friend
of Agustin Bustamante-Molina, appellee, v.
Agustin Salgado-Bustamante, appellant.
___ N.W.2d ___
Filed July 30, 2013. No. A-12-607.
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.
Decisions of the Nebraska Court of Appeals
76 21 NEBRASKA APPELLATE REPORTS
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 appel-
late 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 mate-
rial 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.
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.
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.
Decisions of the Nebraska Court of Appeals
MOLINA v. SALGADO-BUSTAMANTE 77
Cite as 21 Neb. App. 75I. 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 stipu-
lated 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 testi-
fied. 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 dat-
ing 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 sched-
ule, 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 testi-
fied 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
Decisions of the Nebraska Court of Appeals
78 21 NEBRASKA APPELLATE REPORTS
$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 affirma-
tively 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 com-
pany. 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 pro-
vided 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 finan-
cial 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
Decisions of the Nebraska Court of Appeals
MOLINA v. SALGADO-BUSTAMANTE 79
Cite as 21 Neb. App. 75clue” 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 sum-
marized, 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 retroac-
tive 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 retro-
active support owed, the court ordered Agustin to pay $19,724
to Nanci. The order required this arrearage to be paid monthly
in $250 increments until satisfied. The court also accepted the
parties’ stipulation to $360 monthly prospective support, to
commence on December 1, 2010. However, neither the order
nor the record contains any further explanation to support the
amount stipulated.
Only one child support worksheet was attached to the final
order. This worksheet appeared to be the 2005 child support
worksheet from exhibit 1. There were no other supporting
worksheets for any other year relative to the retroactive sup-
port or any worksheet supporting the parties’ stipulation for the
amount of prospective support.
Decisions of the Nebraska Court of Appeals
80 21 NEBRASKA APPELLATE REPORTS
Agustin appealed from this first order, assigning error to the
determination of retroactive child support. However, due to
the court’s failure to attach the necessary worksheets showing
the calculations of support, we were not able to address the
merits of Agustin’s first appeal. In our remanding instructions
to the district court, we stated:
Remanded with directions that the district court pre-
pare an order to include the applicable child support
worksheets to show the calculation of retroactive child
support. See, Rutherford v. Rutherford, 277 Neb. 301,
761 N.W.2d 922 (2009); Jones v. Belgum, 17 Neb. App.
750, 770 N.W.2d 667 (2009). In addition, the work-
sheet attached to the order does not appear to reflect
the evidence concerning the parties’ current income for
purposes of setting the prospective child support, and
therefore, the order of the district court referenced above
shall include the worksheets used to set the prospective
child support.
After receiving our remand, the district court revisited its
calculations and issued a revised order on March 30, 2012.
In that order, the court clarified that it previously determined
the amount of retroactive support by using the worksheets and
calculations contained in exhibit 1. However, the court dis-
covered that it made a mathematical error in determining the
total arrearage to be $25,324 instead of $27,324. Accordingly,
it increased the amount of total retroactive support by $2,000
through November 30, 2009. The court further increased the
child support arrearage by the amount of $1,043.77 for the
temporary period from December 2009 to December 2010,
which we discuss in further detail below. After applying the
same credits in the original order totaling $5,600, the court
determined that the total arrearage was $22,767.77.
In light of our remanding instructions, the district court
also reviewed the parties’ stipulation for prospective support.
Finding no evidence in the record to support a deviation from
the Nebraska Child Support Guidelines, the court concluded
that the parties’ stipulation to $360 in prospective support
was not permissible. Using the parties’ most recent income
information (the 2009 worksheet from exhibit 1), the district
Decisions of the Nebraska Court of Appeals
MOLINA v. SALGADO-BUSTAMANTE 81
Cite as 21 Neb. App. 75court concluded that Agustin’s prospective support should be
$540.29 beginning December 1, 2010.
Having concluded that the parties’ stipulation to prospec-
tive support of $360 per month improperly deviated from the
guidelines, the district court likewise modified the temporary
child support from $360 to $540.29 per month. The district
court then attempted to calculate the additional temporary child
support; but, we note that it made further mathematical errors
in doing so. First, it incorrectly determined the difference in
the monthly amount to be $80.29 instead of $180.29. Then, it
multiplied this sum by 13 months for a total of $1,043.77 in
additional temporary support. However, the temporary order
was in effect from December 1, 2009, through November 30,
2010 (the prospective order began December 1, 2010), which
is only 12 months.
On April 6, 2012, Agustin filed a motion for new trial. At
the hearing on the motion, Agustin argued that the district court
did not have power to increase the amounts of retroactive and
prospective support because such action conflicted with our
instructions on remand. The district court overruled his motion
by an order entered on June 18. Agustin now appeals from the
March 30 and June 18 orders.
II. ASSIGNMENTS OF ERROR
Agustin asserts, combined and reordered, that the district
court erred in (1) failing to follow this court’s instructions on
remand by increasing his child support arrearage and prospec-
tive support, (2) denying his motion for new trial, and (3) cal-
culating the amount of retroactive support.
III. STANDARD OF REVIEW
[1,2] The construction of a mandate issued by an appel-
late court presents a question of law. Anderson v. Houston,
277 Neb. 907, 766 N.W.2d 94 (2009); Scott v. Khan, 18 Neb.
App. 600, 790 N.W.2d 9 (2010). An appellate court reviews
questions of law independently of the lower court’s conclu-
sion. Id.[3,4] While a paternity action is one at law, the award of
child support in such an action is equitable in nature. Drew
on behalf of Reed v. Reed, 16 Neb. App. 905, 755 N.W.2d 420Decisions of the Nebraska Court of Appeals
82 21 NEBRASKA APPELLATE REPORTS
(2008). 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. Pickrel v. Pickrel, 14 Neb. App. 792, 717 N.W.2d
479 (2006).
[5,6] 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. Martensen v. Rejda Bros., 283
Neb. 279, 808 N.W.2d 855 (2012). A judicial abuse of discre-
tion, 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. See Patton v. Patton, 20 Neb. App. 51, 818
N.W.2d 624 (2012).
IV. ANALYSIS
[7] We begin our analysis of the district court’s second
order setting child support by noting that while a paternity
action is one at law, the award of child support in such an
action is equitable in nature. Weaver v. Compton, 8 Neb. App.
961, 605 N.W.2d 478 (2000). To direct courts in establishing
and enforcing child support, the Nebraska Supreme Court has
adopted the Nebraska Child Support Guidelines. See Neb. Ct.
R. § 4-101(C). The main principle behind the 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. Neb. Ct. R. § 4-201; Patton, supra.
[8] The guidelines include various worksheets that are to
be used when establishing child support obligations. Nebraska
law requires a trial court to attach the necessary child support
worksheets to a child support order. Pearson v. Pearson, 285
Neb. 686, 828 N.W.2d 760 (2013); Rutherford v. Rutherford,
277 Neb. 301, 761 N.W.2d 922 (2009); Jones v. Belgum, 17
Neb. App. 750, 770 N.W.2d 667 (2009). Perhaps the most
obvious purpose of this requirement is to ensure that the
appellate courts are not left to speculate about the trial court’s
conclusions. See Stewart v. Stewart, 9 Neb. App. 431, 613
N.W.2d 486 (2000). These worksheets show the parties and the
Decisionsof the Nebraska Court of Appeals
MOLINA v. SALGADO-BUSTAMANTE 83
Cite as 21 Neb. App. 75appellate courts that the trial court has “‘done the math.’” Id.
at 434, 613 N.W.2d at 489.
1. Did District Court’s New Order
Violate Instructions
on R emand?
In his first assigned error, Agustin asserts that the district
court erred on remand by increasing the amount of retroactive
support and prospective support in its new order. He contends
that our instructions on remand specifically directed the district
court to attach worksheets for retroactive and prospective child
support to a new order and did not allow the district court to
do anything more.
[9,10] 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. Mace v. Mace, 13 Neb. App. 896, 703
N.W.2d 624 (2005). 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. State ex rel. Wagner
v. Gilbane Bldg. Co., 280 Neb. 223, 786 N.W.2d 330 (2010);
Scott v. Khan, 18 Neb. App. 600, 790 N.W.2d 9 (2010). In
other words, “‘[w]hen a cause is remanded with specific direc-
tions, the court to which the mandate is directed has no power
to do anything but to obey the mandate.’” Mace, 13 Neb.
App. at 905, 703 N.W.2d at 633 (quoting Anderson/Couvillon
v. Nebraska Dept. of Soc. Servs., 253 Neb. 813, 572 N.W.2d
362 (1998)).
In the present case, our instructions on remand directed the
district court to prepare an order which included the applicable
worksheets to show its calculations of retroactive and prospec-
tive child support. The resulting order contained the necessary
worksheets showing these calculations. While preparing the
order and worksheets, however, the district court concluded
that its original awards for retroactive, temporary, and prospec-
tive support were incorrect and changed each award. We sepa-
rately address each revision.
Decisions of the Nebraska Court of Appeals
84 21 NEBRASKA APPELLATE REPORTS
(a) Retroactive Support
In its original order setting retroactive and prospective
child support, the district court concluded Agustin owed Nanci
$19,724 in retroactive support through November 2009, prior
to the commencement of the temporary support on December
1. The court arrived at this number after subtracting Agustin’s
awarded credits of $5,600 from the total arrearage of $25,324.
However, upon remand, the district court, after clarifying that
it was using exhibit 1 in calculating temporary support, discov-
ered that the total arrearage should have been $27,324 instead
of $25,324. The court thus corrected the amount of retroactive
support by including an additional $2,000.
Considering the purpose of the worksheet attachment rule
and our instructions on remand, we conclude that the district
court’s mathematical correction to the retroactive support
did not violate our mandate. The language of the mandate
pertaining to retroactive support stated that the cause was
remanded “with directions that the district court prepare
an order to include the applicable child support worksheets
to show the calculation of retroactive child support.” In
attempting to comply with our mandate and show us how it
“did the math,” the court discovered and corrected its origi-
nal mathematical error. Correcting this error ensured that the
retroactive support award corresponded with the original
decision in this case to adopt the worksheets and calcula-
tions in exhibit 1. In such a circumstance, this change to the
retroactive support did not exceed the scope of our previous
mandate. We find no error in the district court’s increase in
the retroactive support by the sum of $2,000 to correct its
mathematical mistake.
(b) Temporary Support
We reach a different conclusion with respect to the district
court’s amendment of the prior temporary support award. The
district court’s decision to increase the amount of temporary
child support from $360 to $540.29 and retroactively apply
the resulting difference to Agustin’s total arrearage was not a
mere mathematical correction. Further, there was no assign-
ment of error regarding the temporary child support order in
Decisions of the Nebraska Court of Appeals
MOLINA v. SALGADO-BUSTAMANTE 85
Cite as 21 Neb. App. 75the first appeal and thus no direction to the district court to
attach the supporting worksheet for the temporary child sup-
port order. It was error for the court to increase the amount of
temporary support, as such order clearly exceeded the direc-
tions and scope of our mandate. Therefore, we reverse this
portion of the district court’s order that increased the child
support arrearage by $1,043.77.
(c) Prospective Support
[11] The parties stipulated at trial to prospective child sup-
port of $360 per month, and the district court approved the
stipulation in its original order. Stipulated agreements of child
support are required to be reviewed against the guidelines. If
the court approves a stipulation which deviates from the guide-
lines, specific findings giving the reason for the deviation must
be made. See Lucero v. Lucero, 16 Neb. App. 706, 750 N.W.2d
377 (2008). Because the 2005 worksheet attached to the order
did not appear to reflect the evidence concerning the parties’
current incomes, we remanded the cause to the district court
with directions to attach the worksheets it used to set prospec-
tive support.
When the district court received our remand, it reviewed
the parties’ stipulation and concluded that the stipulated sup-
port deviated from the guidelines, as it was not consistent
with the parties’ current incomes or the most recent worksheet
contained in exhibit 1. As the parties did not adduce evidence
to explain this deviation at trial, the court concluded that the
deviation was impermissible and increased Agustin’s prospec-
tive support from $360 per month to $540.29 per month based
on exhibit 1.
We conclude this increase in prospective support also
exceeded the scope of our mandate. Our mandate required the
district court to include the worksheets used to set the prospec-
tive child support in its original order. It did not permit fur-
ther scrutinizing of the stipulation, particularly without giving
the parties an opportunity to present evidence to support any
deviation from the guidelines. Therefore, we also reverse this
portion of the district court’s order increasing the prospective
child support to $540.29 per month.
Decisions of the Nebraska Court of Appeals
86 21 NEBRASKA APPELLATE REPORTS
2. Should District Court
Have Granted Motion
for New Trial?
In his motion for new trial, Agustin argued that the district
court did not have authority to make changes to its previous
awards. He contended that he should have been granted a new
trial to challenge the factual bases for these increases. The dis-
trict court denied his motion, noting during the corresponding
hearing that it had authority to make the changes that it did.
Now, Agustin argues that he was deprived of the substantial
right to challenge these changes.
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. Martensen v. Rejda Bros., 283 Neb.
279, 808 N.W.2d 855 (2012). 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 unten-
able, unfairly depriving a litigant of a substantial right and
just result. See Patton v. Patton, 20 Neb. App. 51, 818 N.W.2d
624 (2012).
As we determined above, the district court did not exceed
the scope of our mandate with respect to the mathematical
correction to reflect the amount of retroactive support, through
November 30, 2009, in the net sum of $21,724. As such,
Agustin was not deprived of a substantial right and was not
entitled to a new trial on this issue. On the other hand, the dis-
trict court did exceed the scope of our mandate in increasing
the amount of the temporary and prospective support. When
the district court discovered on remand that the prospective
and temporary support awards may have deviated from the
guidelines, it modified the support without giving the parties
an opportunity to present evidence regarding the deviation.
Simply changing the amounts in the new order to conform
to the guidelines, without giving Agustin an opportunity to
address the deviation, deprived Agustin of a substantial right.
Therefore, we conclude the district court abused its discretion
when it denied a new trial on these issues.
Decisions of the Nebraska Court of Appeals
MOLINA v. SALGADO-BUSTAMANTE 87
Cite as 21 Neb. App. 753. Did District Court Err in
Determining Amount of
R etroactive Support?
In his remaining assignments of error, Agustin argues that
the district court incorrectly determined the amount of retroac-
tive support. Agustin first argues that the retroactive support
should not have begun in June 2005. He contends that the
evidence supported his testimony that he and Nanci did not
separate until April 2006. We conclude that this argument is
without merit.
As stated in the factual background above, Nanci and
Agustin gave conflicting testimony relating to the end of their
relationship and the resulting care of Agustin Jr. after their
separation. Nanci testified that they separated in June 2005 and
that she cared for Agustin Jr. after the separation. Agustin, on
the other hand, testified that he did not separate from Nanci
until April 2006. He also stated that he and Nanci jointly cared
for Agustin Jr. from April 2006 until August 2008. According
to Agustin’s testimony, he would care for Agustin Jr. during the
day while Nanci was at work and Nanci would have Agustin
Jr. the remainder of the day. Nanci testified, however, that this
joint care rarely occurred.
[12] 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. Pohlmann v. Pohlmann, 20 Neb. App. 290, 824
N.W.2d 63 (2012). Given the obvious conflict in the parties’
testimony regarding the issues involved in the court’s determi-
nation of retroactive support, we give weight to the fact that
the district court heard and observed this testimony. Therefore,
we conclude the district court did not abuse its discretion
when adopting Nanci’s testimony that the parties separated in
June 2005.
Agustin next argues that the district court failed to give him
credit for all of the support he previously provided for Agustin
Jr. We likewise find this argument to be without merit.
Decisions of the Nebraska Court of Appeals
88 21 NEBRASKA APPELLATE REPORTS
The testimony at trial demonstrates conflicting views regard-
ing the amount of prior support Agustin contributed. Nanci
testified that Agustin gave her only $2,000 in 2006 from his
tax return and denied receiving any money from Agustin from
his 2007 tax return. Nanci acknowledged that Agustin gave her
a car that cost $2,600. However, the record is unclear whether
this car was given to her in 2005 or 2006, or before or after the
parties’ separation. Agustin testified that he gave Nanci about
$2,500 in 2006, monthly payments totaling $3,600 in 2007,
and $3,000 from his tax return in 2007. Agustin testified that
he had “no clue” how much money he gave Nanci in 2008,
but later said he gave her $300 per month through August
2008. Nanci denied receiving monthly payments from Agustin
and testified that arguments resulted whenever she would ask
Agustin for child support.
In its order of March 30, 2012, the court further explained
its determination of credits and indicated that it awarded
credit of $2,000 for 2006 based upon Nanci’s testimony and of
$3,600 for 2007 based upon Agustin’s testimony. Based upon
our review of the record and giving weight to the fact that the
trial judge heard and observed the witnesses, we can find no
abuse of discretion in the amount of credit awarded to Agustin
toward the retroactive support.
V. CONCLUSION
We conclude that the district court did not violate our
mandate when it corrected its mathematical error related to
the retroactive support through November 30, 2009, and did
not err in its determination of the commencement date of or
credits toward retroactive support. We affirm that portion of
the order which determined that Agustin owes $21,724 in
retroactive support through November 30, 2009. However,
the mandate did not permit the district court to amend its
determinations regarding the amounts of temporary or pro-
spective support. Therefore, we reverse those portions of the
March 30, 2012, order and remand the cause with directions
that the district court conduct a new trial to allow the par-
ties to present evidence on the issues of temporary support
Decisions of the Nebraska Court of Appeals
GLANTZ v. DANIEL 89
Cite as 21 Neb. App. 89from December 1, 2009, through November 30, 2010, and
prospective support from December 1, 2010, to the time of
the new trial.
Affirmed in part, and in part reversed
and remanded with directions.
Diane S. Glantz, appellant, v.
Michelle Daniel, appellee.
___ N.W.2d ___
Filed July 30, 2013. No. A-12-673.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
which an appellate court resolves independently of the trial court.
2. Judgments: Injunction: Appeal and Error. A protection order is analogous to
an injunction. Accordingly, the grant or denial of a protection order is reviewed
de novo on the record.
3. Moot Question: Jurisdiction: Appeal and Error. Because mootness is a jus-
ticiability doctrine that operates to prevent courts from exercising jurisdiction,
an appellate court reviews mootness determinations under the same standard of
review as other jurisdictional questions.
4. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, its determination is a matter of law, which
requires an appellate court to reach a conclusion independent of the decisions
made by the lower courts.
5. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to settle jurisdictional issues.
6. Courts: Judgments. In the absence of an actual case or controversy requiring
judicial resolution, it is not the function of the courts to render a judgment that is
merely advisory.
7. Moot Question: Words and Phrases. A case becomes moot when the issues
initially presented in the litigation cease to exist, when the litigants lack a legally
cognizable interest in the outcome of litigation, or when the litigants seek to
determine a question which does not rest upon existing facts or rights, in which
the issues presented are no longer alive.
8. Moot Question. As a general rule, a moot case is subject to summary dismissal.
9. Moot Question: Appeal and Error. Under certain circumstances, an appellate
court may entertain the issues presented by a moot case when the claims pre-
sented involve a matter of great public interest or when other rights or liabilities
may be affected by the case’s determination.
10. ____: ____. When determining whether a case involves a matter of public inter-
est, an appellate court considers (1) the public or private nature of the question