Ybarra v. Ybarra , 28 Neb. Ct. App. 216 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/28/2020 08:08 AM CDT
- 216 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
YBARRA v. YBARRA
Cite as 28 Neb. Ct. App. 216
Frank Ybarra, appellant, v. Mickey Ybarra,
now known as Mickey Valdez, appellee,
and State of Nebraska,
intervenor-appellee.
___ N.W.2d ___
Filed April 21, 2020. No. A-19-519.
1. Statutes: Rules of the Supreme Court. For purposes of construction,
Nebraska Supreme Court rules are treated like statutes.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
3. Divorce: Child Support. Child support payments become a vested right
of the payee in a dissolution action as they accrue.
4. Courts: Modification of Decree: Child Support. A future payment
of child support is not accrued and vested, and therefore a court may
modify the amount of child support due in the future but may generally
not forgive or modify past-due child support.
5. Statutes: Garnishment. Pursuant to 15 U.S.C. § 1673(b) and (c)
(2012), state garnishment statutes are preempted to the extent that state
statutes are less restrictive.
6. Courts: Equity: Judgments: Interest. Generally, a court of equity
has discretion to allow or withhold interest as is reasonable and just.
However, a court of equity does not have discretion to allow or withhold
interest in cases where interest is recoverable as a matter of right.
Appeal from the District Court for Scotts Bluff County: Leo
P. Dobrovolny, Judge. Affirmed.
Michael W. Meister, of Legal Aid of Nebraska, for appellant.
- 217 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
YBARRA v. YBARRA
Cite as 28 Neb. Ct. App. 216
Jessica M. Laughlin, Deputy Scotts Bluff County Attorney,
for appellee.
Moore, Chief Judge, and Arterburn and Welch, Judges.
Moore, Chief Judge.
INTRODUCTION
Frank Ybarra appeals from the order of the district court
for Scotts Bluff County that denied his motion to modify the
amount being withheld from his Social Security payments for
payment of his child support arrearages. For the reasons set
forth herein, we affirm.
BACKGROUND
Ybarra and Mickey Ybarra, now known as Mickey Valdez
(Valdez), were divorced in 1980. At that time, the parties had
three minor children (one born in October 1976 and two born
in April 1978), and Ybarra was ordered to pay child support
of $225 ($75 per child) per month. In February 1998, the
State of Nebraska filed a motion to intervene and modify the
1980 support order, alleging that Ybarra and Valdez had had a
fourth child born in August 1981, whom Ybarra had neglected
to adequately support. In July 1998, the court ordered Ybarra
“to continue paying $275.00 each month,” with $50 being
for the support of the youngest child and the remaining $225
being paid toward the arrears he owed on the 1980 order.
The court noted that this amount deviated from the Nebraska
Child Support Guidelines, because Ybarra had been ordered to
pay $225 for arrearages and had been paying per wage with-
holding. The court ordered income withholding pursuant to
Nebraska’s Income Withholding for Child Support Act. See
Neb. Rev. Stat. § 43-1701 et seq. (Reissue 2016). Ybarra’s last
child support payment was due in August 2000.
The payment record admitted into evidence in the cur-
rent proceedings reflects that Ybarra made various voluntary
payments toward his obligation between January 2002 and
January 2018. The State made two involuntary collections of
- 218 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
YBARRA v. YBARRA
Cite as 28 Neb. Ct. App. 216
$46 each in January 2017. As of December 31, 2018, Ybarra
owed $12,862.50 in arrears and $55,900.24 in interest for a
total of $68,762.74.
In late 2018, the State initiated income withholding from
Ybarra’s Social Security payments, and the Social Security
Administration (SSA) notified Ybarra that beginning December
1, his monthly Social Security benefits would be $870, but
that $200 would be deducted from that amount each month
for child support garnishment. The child support payment
documentation in the record shows that involuntary payments
of $200 were made toward Ybarra’s child support arrear-
age in January, February, and March 2019. As of March 6,
Ybarra owed a total of $68,310.13 ($12,862.50 arrears and
$55,447.63 interest).
On December 21, 2018, Ybarra filed a motion to modify,
alleging that the $200 deduction would not leave him enough
funds to pay monthly expenses. Ybarra asked for an order
reducing the garnishment from his monthly Social Security
benefits to $50 per month and an order removing the interest
from the payment record.
The district court heard Ybarra’s motion on March 28, 2019.
The court received an affidavit offered by Ybarra. In his affi-
davit, Ybarra stated, among other things, that after $200 was
withheld from his Social Security benefits, he would have
$670 left to pay his monthly expenses, which exceeded that
amount. Ybarra listed monthly expenses totaling $1,008. He
asked the court to allow him to pay $50 per month toward
his arrears to be deducted from his Social Security benefits.
He also asked the court to “remove the interest from the pay-
ment records.”
The district court also received exhibits offered by the
State: an employment history report for Ybarra, a copy of
Ybarra’s child support payment history report, an “Income
Withholding for Support” request to the SSA, and a notice
from the SSA indicating that in response to the request to
withhold $200 from Ybarra’s monthly payments due to his
- 219 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
YBARRA v. YBARRA
Cite as 28 Neb. Ct. App. 216
obligation to pay child support, it had withheld $200 from
the payment he would receive around January 3, 2019, and
that it would continue to withhold that amount in subsequent
months. The court received the payment history report over
Ybarra’s objection that the interest amounts reflected in the
report were calculated at a “compound rate” rather than a
“simple rate.”
The State also called a Scotts Bluff County child support
enforcement employee as a witness to testify about the pay-
ment history record and the request made to the SSA to with-
hold $200 per month. On cross-examination, it was apparent
that this witness did not understand the difference between
simple and compound interest, as defined by Ybarra’s attorney
in his questioning of her. She was unable to provide an expla-
nation about how the interest reflected in the report had been
calculated, testifying, “It’s all set up in the system, so I don’t
know if it’s a compound interest.”
On April 30, 2019, the district court entered an order deny-
ing Ybarra’s motion to modify. The court determined that the
child support guidelines, and the basic subsistence limita-
tion therein, were not applicable because the matter before it
concerned a judgment for support arrearage, rather than the
establishment of a current support order. The court found no
legal authority allowing it to order an amount of withholding
less than the amount identified in the notice from the SSA,
stating that federal law sets the limitations on such withhold-
ing and that the amount directed to be withheld was within
those limits. The court reviewed the child support payment
history report in the record and determined that the interest
amounts reflected therein, based on the court’s “rough analy-
sis,” appeared to be simple interest on only the arrears amount,
rather than compound interest as argued by Ybarra. The court
concluded that the payment history report did not show inter-
est accruing on any amount other than the arrearage, noting
that the arrearage had declined, rather than increased, over the
course of the time shown on the report.
- 220 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
YBARRA v. YBARRA
Cite as 28 Neb. Ct. App. 216
ASSIGNMENTS OF ERROR
Ybarra asserts, restated, that the district court erred in (1)
determining that the child support guidelines do not apply in
this case, (2) refusing to reduce his past-due child support
payment to comport with the basic subsistence limitation
found in Neb. Ct. R. § 4-218 (rev. 2019), and (3) failing to
give him any relief from the accrued interest on his child sup-
port arrearage.
STANDARD OF REVIEW
[1,2] For purposes of construction, Nebraska Supreme Court
rules are treated like statutes. Hotz v. Hotz, 301 Neb. 102, 917
N.W.2d 467 (2018). Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to
reach an independent conclusion irrespective of the decision
made by the court below. Adair Holdings v. Johnson, 304 Neb.
720, 936 N.W.2d 517 (2020).
ANALYSIS
Ybarra first asserts that the district court erred in determin-
ing that the child support guidelines do not apply in this case
and in refusing to reduce his past-due child support payment
to comport with the basic subsistence limitation found in
§ 4-218. We find no error in the court’s determination that the
guidelines are not applicable in this situation or in the court’s
refusal to reduce the amount being withheld from Ybarra’s
Social Security benefit payments.
The purpose of 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. The guidelines are “intended to be used for
both temporary and permanent support determinations.” Neb.
Ct. R. § 4-202. And, “[a]ll orders for child support obliga-
tions shall be established in accordance with the provisions of
the guidelines” unless the presumption of their applicability
to the establishment of a particular child support order has
- 221 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
YBARRA v. YBARRA
Cite as 28 Neb. Ct. App. 216
been rebutted. See Neb. Ct. R. § 4-203 (rev. 2020). See, also,
Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019)
(in general, child support payments should be set accord-
ing to Nebraska Child Support Guidelines); Neb. Rev. Stat.
§ 42-364.16 (Reissue 2016).
[3,4] Child support payments become a vested right of
the payee in a dissolution action as they accrue. Dartmann
v. Dartmann, 14 Neb. Ct. App. 864, 717 N.W.2d 519 (2006). A
future payment of child support is not accrued and vested, and
therefore a court may modify the amount of child support due
in the future but may generally not forgive or modify past-due
child support. Griess v. Griess, 9 Neb. Ct. App. 105, 608 N.W.2d
217 (2000). See, also, Gress v. Gress, 257 Neb. 112, 596
N.W.2d 8 (1999).
In the present case, the district court was not establish-
ing an order for support. Nor was it considering whether to
modify the amount of ongoing child support. Instead, it was
determining whether the amount withheld from Ybarra’s Social
Security benefits to satisfy a delinquent, previously established
child support order should be reduced. While the Nebraska
Supreme Court has not explicitly addressed whether garnish-
ment for child support arrearages may put an obligor’s income
below the poverty line contained in child support guidelines,
it has cautioned that where the child support guidelines are
inapposite, so is their logic. See Binder v. Binder, 291 Neb.
255, 864 N.W.2d 689 (2015). We find no error in the district
court’s determination that the guidelines were not applicable in
the present case.
In determining that the amount withheld in this case was
limited by state and federal statutes rather than by the subsist­
ence limitations set forth in the child support guidelines, the
district court referenced Kropf v. Kropf, 248 Neb. 614, 538
N.W.2d 496 (1995), wherein the Nebraska Supreme Court
found that the garnishment limits of 15 percent or 25 percent
set forth in Neb. Rev. Stat. § 25-1558(1) (Reissue 2016) did
not apply because the alimony order in that case was an order
- 222 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
YBARRA v. YBARRA
Cite as 28 Neb. Ct. App. 216
“of support for a person.” Kropf v. Kropf, 248 Neb. at 619,
538 N.W.2d at 500. The Kropf court determined that the only
restriction on the amount garnishable from the appellant’s
Social Security benefits in that case were those set forth by
federal law in the Consumer Credit Protection Act. See 15
U.S.C. § 1673(b)(2) (2012). While the order in Kropf was one
for alimony, and the applicability of the child support guide-
lines was not at issue, an examination of the statutes discussed
in that case is useful to our consideration of whether the dis-
trict court erred in refusing to reduce the amount being with-
held from Ybarra’s Social Security benefits.
Subsection (1) of § 25-1558 sets forth certain restrictions
on the amounts subject to garnishment from an individual’s
earnings. Subsection (2)(a) of § 25-1558 indicates that the
restrictions of subsection (1) “shall not apply in the case of
. . . [a]ny order of any court for the support of any persons.”
Prior to 1974, this statute was controlling and provided no
limitations on garnishment of disposable earnings for child
support arrearages. However, in 1974, after Neb. Rev. Stat.
§ 42-364.08 (Reissue 1978) (pertaining to payment and col-
lection of money for support of minor children) was enacted,
mirroring the withholding limitations of the Consumer Credit
Protection Act, the provisions of § 25-1558 were inconsistent
with the provisions of the new statute. The Nebraska Supreme
Court subsequently determined that, to the extent there were
inconsistencies, Neb. Rev. Stat. § 42-364.01 et seq. (Reissue
1978) impliedly repealed § 25-1558. See Ferry v. Ferry, 201
Neb. 595, 271 N.W.2d 450 (1978).
Section 42-364.08 (Reissue 2016) currently provides:
The amount to be withheld from the parent-employee’s
disposable income under any order to withhold and
transmit earnings entered pursuant to sections 42-364.01
to 42-364.12 shall not in any case exceed the maxi-
mum amount permitted to be withheld under section
303(b) of the Consumer Protection Credit Act, 15 U.S.C.
1673(b)(2)(A) and (B), nor shall any amount withheld to
- 223 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
YBARRA v. YBARRA
Cite as 28 Neb. Ct. App. 216
satisfy a child or spousal support arrearage, when added
to the amount withheld to pay current support and the
fee provided for in subdivision (3) of section 42-364.01,
exceed such maximum amount.
[5] And 15 U.S.C. § 1673 provides in relevant part:
(b) Exceptions
....
(2) The maximum part of the aggregate disposable
earnings of an individual for any workweek which is sub-
ject to garnishment to enforce any order for the support of
any person shall not exceed—
(A) where such individual is supporting his spouse or
dependent child (other than a spouse or child with respect
to whose support such order is used), 50 per centum of
such individual’s disposable earnings for that week; and
(B) where such individual is not supporting such a
spouse or dependent child described in clause (A), 60
per centum of such individual’s disposable earnings for
that week;
except that, with respect to the disposable earnings of
any individual for any workweek, the 50 per centum
specified in clause (A) shall be deemed to be 55 per
centum and the 60 per centum specified in clause (B)
shall be deemed to be 65 per centum, if and to the extent
that such earnings are subject to garnishment to enforce
a support order with respect to a period which is prior to
the twelve-week period which ends with the beginning of
such workweek.
(c) Execution or enforcement of garnishment order
or process prohibited
No court of the United States or any State, and no State
(or officer or agency thereof), may make, execute, or
enforce any order or process in violation of this section.
In Ferry v. Ferry, supra, the Nebraska Supreme Court deter-
mined that pursuant to 15 U.S.C. § 1673(b) and (c), state
garnishment statutes are preempted to the extent that state
- 224 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
YBARRA v. YBARRA
Cite as 28 Neb. Ct. App. 216
statutes are less restrictive. The Ferry court inferred from the
evidence in that case that the federal statute was more restric-
tive and thus determinative of the maximum amount subject
to garnishment for past-due child support, but remanded the
cause for determination by the trial court on the evidence after
notice and hearing.
In the present case, the district court has already con-
sidered 15 U.S.C. § 1673(b) and found it applicable. This
case involves the State’s attempt to collect the arrearage for
Ybarra’s past-due child support via income withholding from
Ybarra’s Social Security benefits and Ybarra’s attempt to
modify the amount being withheld. This is not a modifica-
tion of an original support order. Ybarra’s initial child support
obligation was set in 1980 at the time of his divorce from
Valdez and was modified in 1998 after the State’s interven-
tion. Ybarra’s last payment was due in 2000. The payments
ordered in 1980 and 1998 vested as they accrued, and the
district court was without authority to reduce the accrued pay-
ments. As noted above, the child support guidelines are for the
purpose of establishing support orders, which is not what was
being done here. The court did not err in determining that the
child support guidelines were not applicable. Nor did it err in
refusing to reduce the amount being withheld from Ybarra’s
Social Security benefits. The court properly determined that
the limits on the amount withheld were governed by statute.
And, because the amounts currently being withheld are within
the restrictions of the federal statute, the court did not err in
refusing to reduce the amount being withheld. Ybarra’s first
and second assignments of error fail for these reasons.
Finally, Ybarra asserts that the district court erred in failing
to give him any relief from the accrued interest on his child
support arrearage. Neb. Rev. Stat. § 42-358.02(1) (Reissue
2016) provides that delinquent child support payments “shall
draw interest,” which shall be computed as simple interest.
Ybarra “concedes that the record is not adequately developed
to determine if the interest [in this case] was calculated on a
- 225 -
Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
YBARRA v. YBARRA
Cite as 28 Neb. Ct. App. 216
compound or a simple interest basis.” Brief for appellant at
11. However, he argues that equity should require some action
with respect to the interest that accrued while the State took
little to no action to enforce his obligation.
[6] The Nebraska Supreme Court addressed a similar argu-
ment in Laschanzky v. Laschanzky, 246 Neb. 705, 523 N.W.2d
29 (1994). There, the Supreme Court observed that generally,
a court of equity has discretion to allow or withhold interest
as is reasonable and just. Id. However, a court of equity does
not have discretion to allow or withhold interest in cases where
interest is recoverable as a matter of right. Id. The Laschanzky
court concluded that because interest on delinquent child sup-
port payments is a matter of statutory right, the trial court did
not have discretion to reduce the amount of accrued interest at
issue, regardless of the applicability of the doctrines of laches
and equitable estoppel. See id.
Similarly, in the present case, the district court did not
have discretion to reduce the amount of accrued interest, and
Ybarra’s third assignment of error must fail.
CONCLUSION
The district court did not err in denying Ybarra’s motion
to modify.
Affirmed.