State on behalf of Nathaniel R. v. Shane F. , 30 Neb. Ct. App. 797 ( 2022 )

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04/19/2022 12:06 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 797State of Nebraska on behalf of Nathaniel R.,
a minor child, appellee, v. Shane F., third-party
plaintiff, appellant, and Amanda R.,
third-party defendant, appellee.
___ N.W.2d ___
Filed April 5, 2022. No. A-21-368.
1. Modification of Decree: Child Support: Appeal and Error.
Modification of child support is entrusted to the discretion of the trial
court. An appellate court reviews proceedings for modification of child
support de novo on the record and will affirm the judgment of the trial
court absent an abuse of discretion.
2. Judgments: Words and Phrases. A judicial abuse of discretion exists
if the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
3. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record, which prejudicially affects
a substantial right of a litigant and is of such a nature that to leave it
uncorrected would cause a miscarriage of justice or result in damage to
the integrity, reputation, and fairness of the judicial process.
4. Modification of Decree: Child Custody: Proof. The party seeking
modification of a dissolution decree has the burden to produce sufficient
proof that a material change of circumstances has occurred that warrants
a modification.
5. Child Support: Rules of the Supreme Court. In general, child sup-
port payments should be set according to the Nebraska Child Support
Guidelines.
6. Child Support: Armed Forces. Department of Veterans Affairs dis-
ability benefits received each month should be included as nontaxable
income for purposes of the child support calculation.
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STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 797Appeal from the District Court for Dodge County: Geoffrey
C. Hall, Judge. Affirmed as modified.
Avis R. Andrews for appellant.
Richard Register, of Register Law Office, for appellee
Shane F.
Pirtle, Chief Judge, and Riedmann and Bishop, Judges.
Bishop, Judge.
I. INTRODUCTION
Shane F. appeals, and Amanda R. attempts to cross-appeal,
from the order of the Dodge County District Court modifying
Shane’s child support obligation for the parties’ minor child,
Nathaniel R. We affirm as modified.
Amanda also challenges the district court’s “Order Dismiss­
ing Show Cause Order,” in which the court found Shane was
disabled and not in willful and contumacious contempt of
court for failure to pay child support. Because Amanda did not
timely appeal from that order, we lack jurisdiction over the
contempt matter.
II. BACKGROUND
1. Original Paternity and
Support Action in 2010
In 2010, the State, on behalf of Nathaniel, filed a complaint
against Shane in the Dodge County District Court to establish
paternity and support. At the time, Nathaniel, born in 2006,
lived in Nebraska with his mother, Amanda, and Shane lived in
Texas. Amanda was not named as a party in the proceedings.
In its order for support, the district court found that Shane was
Nathaniel’s father and ordered Shane to pay $503 per month in
child support and $83 per month in medical support; the child
and medical support payments were to be paid to the Nebraska
Child Support Payment Center, and Amanda was to be the
payee of the support payments, subject to the assignment pro-
vision set forth by Nebraska statute.
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STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 7972. Modification and Contempt Actions
(a) Initial Pleadings and Orders
On July 10, 2019, a “Stipulated Order to Add Third Party
Defendant” was entered, and the district court sustained
Amanda’s motion to be added as a third-party defendant.
On July 16, 2019, Shane filed an application for modifica-
tion. He alleged that since the 2010 order for support was
entered, there had been material and substantial changes in
circumstances warranting the modification of that order in
that he had been determined to be permanently and totally
disabled as of March 13, 2017, by the Department of Veterans
Affairs (VA); Amanda had a change in income; each party had
a change in circumstances regarding health insurance avail-
able for Nathaniel; and the VA or other governmental agencies
had paid benefits on behalf of Nathaniel to Amanda for which
Shane had not received credit. Shane sought a reduction of
his child support obligation, a reduction or termination of his
cash medical support obligation, a retroactive modification of
his child support obligation back to the date of his disability
or other appropriate date, credit for payments made by the VA
or any other governmental agency to Amanda, and costs and
attorney fees.
On July 24, 2019, the State filed an answer generally deny-
ing the allegations in Shane’s application for modification;
the State prayed for an order dismissing Shane’s application
for modification. Also on July 24, Amanda filed a “Verified
Application for Contempt.” She alleged that Shane failed to
abide by the 2010 order for support and that, more specifi-
cally, he “has failed to make a single voluntary child support
payment and is currently $57,802.58 in arrears.” A certified
copy of a Department of Health and Human Services payment
history report was attached to her application. She asked the
district court to enter an order citing Shane for contempt and
commanding him to appear and show cause why he should
not be punished for his willful contempt. She also asked for
costs and attorney fees. The next day, the district court filed an
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STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 797order to show cause, directing Shane to appear and show cause
why he should not be held in contempt.
On August 8, 2019, Amanda filed an answer to Shane’s
application for modification; an amended answer and cross-
complaint was filed on February 19, 2020. Amanda raised the
affirmative defense of unclean hands, alleging that Shane was
more than $41,000 delinquent on the day he claimed to be
declared disabled, made no voluntary payments on his support
order since 2010, and failed to disclose his property, assets, and
income for the sole purpose of not paying support. In the por-
tion of her pleading labeled “Cross Complaint for Enforsement
[sic] and Contempt,” Amanda alleged that pursuant to the 2010
order, Shane was to pay $503 per month in child support and
$83 per month in medical support, he failed to make a single
voluntary payment of support, and was currently $61,438.68
delinquent in his support payment. She further alleged that
Shane had been aware of the 2010 order from the time it was
entered and had the ability to pay, but that he had refused to
comply with the order. She asked the court for
an order for enforcement of the prior unpaid support by
Contempt, setting a day for [Shane] to appear and Show
Cause why he should not be held in contempt and jailed
for none [sic] compliance of said Order, to assess against
him attorney fees, and the cost of this action.
On February 2, 2021, Shane filed a motion for leave to
appear telephonically for the trial, “due to his inability to travel
due to ongoing health concerns and the Covid pandemic.”
In its journal entry entered on February 23, the district court
granted Shane’s motion over Amanda’s objection. The court
ordered that Shane “may appear at the trial scheduled herein by
telephone or by Zoom.”
(b) Trial
Trial on the modification and contempt actions was held
on March 5 and 10, 2021. Shane appeared by video confer-
ence, and his counsel appeared in person. Amanda and her
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STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 797counsel appeared in person. In addition to testimony from
Shane and Amanda, numerous exhibits were also received
into evidence.
Shane testified that he was 36 years old and the father of
Nathaniel, age 13. Shane currently lived in California with
his wife and two children, ages 6 and 4; he also has another
child, age 11.
Shane testified that the last significant work he had was
when he was in the “US Army.” In 2006, he was placed on
the “temporary disability retired list” because of recurrent
generalized seizures that prevented reasonable performance
of required duties. According to Shane, “[W]hen a soldier is
found to be medically incapable of continuing their duties,
they’re placed on [the temporary disability retired list] before
they are placed on the permanent disability list. This is done
in case the condition improves and the soldier can be called
back to duty.” At the time of Shane’s temporary retirement in
2006, Nathaniel was his only child. Shane’s medical condi-
tion worsened, and he was never able to return to active duty.
According to a letter from the VA dated May 29, 2019, Shane
was rated as permanently and totally disabled effective March
13, 2017.
Shane received VA disability payments as a result of his
temporary, and later permanent, disability. At the time of the
district court’s August 2010 order of support, the attached
child support calculation worksheet included a gross monthly
income of $2,774 for Shane, which was labeled as his “VA
monthly [b]enefit”; Shane’s VA benefit was put in the child
support worksheet as taxable income, resulting in a net monthly
income of $2,090.57. Since 2010, Shane has done some mis-
cellaneous work. The most he ever received was “somewhere
in the area of 2- or $300 a week” from a construction company,
but that job only lasted “maybe two and a half months” (he did
not specify in which year); Shane said he was physically able
to do the job, but because of his seizures, his employer “let
[him] go” for safety reasons.
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Cite as 30 Neb. App. 797Shane testified that he received periodic increases in the
amount of his VA disability benefit which “are determined by
the cost-of-living increases that are given to the US Military
every year.” According to a VA letter dated November 16,
2017, Shane’s total monthly VA benefit was $3,706.56 as of
April 1, with $200 of that amount apportioned for Nathaniel;
the letter states that Shane was being paid as a veteran with
four dependents and that his payment included an additional
amount for his spouse and three minor children. According
to VA letters dated March 10, 2020, and November 24, 2020,
Shane’s total monthly VA benefit was $4,268.70 as of July 1,
2019, with $400 of that amount apportioned for Nathaniel.
The VA letter dated March 10, 2020, shows that the total
“[a]llotment” was $600, and Shane testified that $400 was for
Nathaniel and the other $200 was for his oldest daughter. On
cross-examination, Shane agreed that his current VA benefits
are approximately $4,337 per month, and the money is not tax-
able. According to Shane’s testimony on redirect, he receives
a monthly allotment from the VA of $200 per child for the two
children that currently live in his home; this amounts to $400
total per month.
Shane received a letter dated June 25, 2019, from the
Department of Child Support Services Loma Linda, in Loma
Linda, California. The letter, regarding Nathaniel, stated, “It
has come to our attention that you may be disabled and unable
to work. We may be able to close your case if we receive
medical proof that you are totally and permanently disabled
and have no income or assets available to attach for payment
of child support.” The letter requested that Shane complete and
return an “enclosed Medical Information Verification Report”
to help the department determine if Shane’s case “is eligible to
be closed.” Shane said that he sent the requested information.
According to a letter from the Department of Child Support
Services Loma Linda dated July 22, 2020, Shane’s case regard-
ing Nathaniel was “closed” on September 22, 2019. Shane
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Cite as 30 Neb. App. 797testified, “They closed it here in the State of California and
sent it back to Nebraska.”
Shane also had a child support case in Pennsylvania regard-
ing his oldest daughter. Pursuant to a 2014 Pennsylvania
court order received into evidence, Shane was ordered to pay
child support for his oldest daughter starting that January.
However, pursuant to a Pennsylvania court order entered in
2018, Shane’s financial obligation was “set to a numerical
value of zero effective OCTOBER 27, 2017 because [Shane]
is unable to pay, has no known income or assets and there is
no reasonable prospect that [he] will be able to pay in the fore-
seeable future.” A subsequent Pennsylvania court order states
that the support order was “terminated effective AUGUST 28,
2020 and arrears, if any, are remitted without prejudice as of
SEPTEMBER 1, 2020, as the case meets the following criteria
for order termination and Federal Case Closure under 45 CFR
§ 303.11: Intergovernmental services are no longer needed by
the initiating state.” When asked if he was currently ordered
to pay child support on behalf of his oldest daughter, Shane
responded, “No.” He was then asked if he still paid support on
her behalf even though it was not required by the court, and
Shane replied, “Yes”; he also confirmed that it was the $200
per month he testified to earlier.
Additionally, Shane supports his wife and the two children
that live in his home. Shane and his wife own 20 acres of
desert property in California, and they live in a 40-foot ship-
ping container that has been renovated to accommodate four
people. The property was purchased “[a]pproximately” 6 years
ago for $10,000. Shane said that “[h]alf of [the purchase price]
came from my disability, the other came from my wife work-
ing online.” Shane receives an exemption against taxes on the
property due to “[his] status as a hundred-percent disabled
veteran.” According to a March 2020 letter from the asses-
sor’s office in California, “[t]his exemption applies only to the
general tax levy and does not apply to any existing special
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STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 797assessments.” Shane’s 2020 property tax statement shows that
his total tax was $226.31.
Shane and his wife also purchased a “small number of
pigs” approximately 3 years ago, and they started selling pigs
“beginning this year.” When asked if the pigs were an income-
producing project, Shane replied, “Not yet.” Shane explained
how they got into the pig business.
After we finish [sic] paying off this property, I was talk-
ing with a neighbor about possible ideas or ways to invest
to use the property. He told me about a special breed of
pig known as the Mangalitsa. So, over the next year or
two, the wife and I looked into it, did our research, found
the best genetic supplier that we could, and found an
investor in her brother, and we saved our pennies, and we
purchased seven breeding pigs. We have since bred them
twice, producing a total of 45 wee pigs. Six died of natu-
ral causes and we have harvested 10.
Shane said his brother-in-law was not involved in the business,
but was just an investor, and “he’s actually being paid off or
bought out by my wife” from monies she receives from student
financial aid. On cross-examination, Shane said that his wife
owns the pigs; his brother-in-law purchased the pigs, and his
wife is paying her brother back from her financial aid. Shane
was then questioned further about his contribution to the pig
business. According to his further testimony, the pig operation
was started by a “[c]ombination of monies from my wife’s
brother . . . and some sums from my disability”; Shane said he
took his monthly check from the VA and put it toward feed-
ing the animals to keep them alive to make it to the market.
The first year, the pigs were small and did not eat as much,
so Shane’s contribution was not as high. But over the next 2
years, Shane contributed approximately $4,500 from his VA
money every 3 months, or approximately $18,000 each year,
to feed the pigs. He explained that the “hog” operation was
created and established “for [my wife] and the kids in case I
am no longer around.” Shane said, “My name is on it but that’s
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STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 797just because California State law requires that a couple have all
people on a family-owned business,” but “it is her business for
her and the kids.”
Shane was asked if either he or his wife had made any money
from the animals. He replied, “Not anything in the profit mar-
gin, no.” He stated that they had only sold pigs for the last year
and that he believed the total gross income was $15,000. Shane
and his wife currently had approximately “20 meat head” that
were ready for harvest, but he could not sell them because
they did not have storage facilities to store the processed meat.
When asked if they could sell the animals on the market, Shane
replied, “No, that’s not how this product works.” He explained,
“This is a parts market . . . . I have to process the animals,
render them down to parts, take the parts to the market, and
have them sold at the market by parts alone. I cannot sell these
animals wholesale and make any kind of money.” When asked
how much he could sell the animals for today without having
them slaughtered, Shane said “for a loss”; he could “possibly”
sell them for between $500 and $2,400 each, but “[t]hat’s com-
pletely and totally speculative.” He acknowledged that he had
a minimum of $10,000 in animals right now that he was paying
to feed out of his VA benefits.
Until 2020, Shane did not file income tax returns. When
asked if it was because of his disability, Shane replied, “Yes,
ma’am; no income.” But in 2020, Shane and his wife did file a
tax return. Their 2020 federal tax return included a “Schedule
F,” “Profit or Loss From Farming.” The Schedule F has only
Shane’s wife named as the proprietor of the “hog and pig”
farm. The Schedule F states that the gross income from the hog
and pig farm was $15,702, but after $19,548 in expenses, there
was a net farm loss of $3,846. Shane’s counsel questioned him
further about the farming operation.
Q [by counsel] Do you have an anticipation of when, if
ever, your farm will be financially profitable?
A [by Shane] Depending on the actions of the Court,
that could be a year or it could be never.
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Cite as 30 Neb. App. 797Q And what do you mean?
A It means that the restrictions that have been put in
place as a result of this initial order have made it so that
we can’t get investment revenues that would be essential
for the farm to be able to expand. As such, the farm is
stuck in a — a self-consuming cycle. Money that we
receive from sale is immediately consumed by standing
pigs in the field.
If we could afford to put in a commercial freezer,
for instance, which would cost approximately $10,000,
plus installation, we could have all the pigs in the field
­slaughtered, and, then, we wouldn’t have continual draw
off of those profits. But because we can’t get loans, we
can’t make those advancements, and we will never be
able to make those advancements.
Q You mentioned that your brother-in-law had made a
contribution to the farm, is that correct?
A Yes, ma’am.
Q Is that a debt against the farm?
A Yes, ma’am.
Q Do you anticipate that — well, your arrangement is
such that you would need to repay that?
A My wife is currently in the process of working to
repay that.
Q And how much is that debt?
A I believe it was $8,500.
Q And when was that loan made?
A Approximately two and a half years ago.
Shane and his wife’s 2020 federal tax return states that they had
an adjusted gross income of negative $32,249 (this included
the net farm loss of $3,846 and an “NOL” of $28,415).
In addition to helping with the pig farm, Shane was cur-
rently going to school for photography and was in his “senior
year.” He received student financial aid, “in the form of stu-
dent loans and Pell grant money.” He acknowledged that he
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Cite as 30 Neb. App. 797received more money than he had to pay for tuition and books;
he “couldn’t give . . . an accurate number” on how much more,
but it was more than $5,000, and less than $10,000 “over the
last three years.” Additionally, Shane testified that the VA
vocational rehabilitation program paid for the entirety of his
education, including tuition, supplies, and equipment. Shane
has not obtained any income from photography, as he was still
a student.
Pursuant to the 2010 order of support, Shane was obligated
to pay $503 per month in child support and $83 per month in
cash medical support. Shane was asked if he had voluntarily
paid any child support or cash medical support, other than
what had been taken from the VA, since the 2010 order of sup-
port was entered. He responded, “I didn’t have the financial
ability to do so.” Payment history reports from the Department
of Health and Human Services show that from the time of the
support order on August 16, 2010, until the date of the report
on May 8, 2019, only $1,068.20 in child support had been
collected for Nathaniel: $1,066.58 was collected on January
11, 2012, and $1.62 was collected on October 22, 2012; the
payment sources for both collections were labeled “INVOL.”
(According to Amanda, these amounts were collected through
garnishments.) Shane’s outstanding child support obliga-
tion as of May 8, 2019, was $56,576.68 ($503 delinquent
+ $51,243.80 in arrears + $4,829.88 in interest); his outstand-
ing medical support obligation was $8,715 ($83 delinquent
+ $8,632 in arrears).
Shane acknowledged that from 2010 to 2016, Nathaniel did
not receive any direct payments from Shane’s VA disability. It
was not until 2017, when “[Amanda] took Court documentation
to the VA, as is her prerogative” that $200 per month started
coming out of Shane’s VA disability check for Nathaniel.
Nathaniel then received $200 per month from April 1, 2017,
to June 30, 2019, and $400 per month beginning July 1, 2019.
Shane testified that he “cannot afford to pay what [he’s] pay-
ing currently.” When asked how much money was currently
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STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 797in his bank account, Shane responded, “Based on the fact that
I just got my student financial aid, my VA disability, and back
payments, I have approximately [$]9,000 or $10,000,” but
“$4500 of that is pre-slotted for feed in the next 10 days,” and
the “[m]ajority of it will go towards groceries and household
expenses”; “the remaining amount will probably be in the ball-
park of [$]100 to $200 before I get paid again.”
Shane would like the child support order “to be adjusted
to an appropriate sum” and he would like the arrears “to be
adjusted appropriately.” When asked if he was suggesting to
the district court that his child support should be set in the
minimum amount of $50 per month, Shane responded, “If that
is the standard law.” He also wanted to be given credit for the
payments that had been made through his VA disability and to
make that retroactive as may be permitted.
Amanda testified that she was currently employed full time
and currently earns $19.10 per hour; she also paid “10 percent”
into a retirement account. At the time of the district court’s
August 2010 order of support, the child support calculation
worksheet included a monthly gross income of $1,256.67 for
Amanda, which was labeled as “min wage $7.25/hr.” In 2017,
Amanda applied to the VA to get support money for Nathaniel
after her research revealed that Nathaniel was eligible to
receive benefits. After conferring with officials at the VA, she
discovered that an allotment for Nathaniel had already begun.
She then applied to have the allotment redirected to her and
Nathaniel. Amanda received $200 per month until July 2019,
at which point she asked the VA “to up the sum that Nathaniel
would get since [Shane] was so far behind in child support and
was not voluntarily paying child support.” Since July 2019,
Amanda has received $400 per month for Nathaniel from the
VA. Amanda asked the district court to apply the payments
she received from the VA to Shane’s arrears. She would prefer
to stop the cash medical support and have Nathaniel covered
through Shane’s health insurance, if available.
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Cite as 30 Neb. App. 797(c) District Court’s Oral Pronouncement
At the conclusion of the evidence, the district court orally
announced its decision. The court specifically found that
the material change in circumstance that allows for the
modification relates to the erroneous information con-
tained in the original order as relates to the father’s income
being taxable. In addition, his non-taxable income from
his VA benefits has increased significantly; the mother’s
income as it relates to her ability to earn has increased as
well. All of those are material changes in circumstances
allowing for the Court’s order which modifies that ear-
lier order.
The court directed Shane’s counsel to prepare the modification
order and “to attach a calculation that I have provided based
on the evidence received.” The court stated that the amount of
support would be $533 per month, beginning April 1, 2021;
however, Shane was entitled to a credit for the $400 VA bene­
fit paid on behalf of Nathaniel. Shane was to get credit on
any arrearage as to child support for amounts previously paid
from the date of the entry of the original order up until March
10, 2021, that were paid on behalf of Nathaniel through VA
benefits. Amanda was to receive the tax credit for Nathaniel
each year, if eligible. Shane was to provide health insurance
for Nathaniel through “TRICARE.” The court said it would
not order any further cash medical support. The court ordered
Shane to pay $50 per month toward his arrearage, beginning
May 1; this was to be in addition to his regular child support
obligation. The court found that Shane was not in willful and
contumacious contempt of its previous order. Each party was to
pay his or her own costs and attorney fees.
(d) Written Order in Contempt Action
On March 23, 2021, the district court entered its written
order dismissing the show cause order. The court found that
Amanda failed to meet her burden of proof and that Shane was
disabled and was not in willful and contumacious contempt
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costs and attorney fees.
Amanda did not file a notice of appeal regarding the March
23, 2021, order.
(e) Written Order in Modification Action
On April 22, 2021, the district court entered its written order
of modification, finding there had been a material change in
circumstances warranting the modification. Shane was now
ordered to pay child support on behalf of Nathaniel in the
amount of $533 per month commencing on April 1. Also com-
mencing April 1, Shane was to receive credit against the child
support ordered in the amount of the apportionment payment
sent to Amanda by the VA on behalf of Nathaniel, currently in
the amount of $400 per month, with any adjustments to said
amount that may be made from time to time by the VA. Shane
was also to receive credit against his child support arrearage for
payments made to Amanda by the VA in the amount of $200
per month commencing April 1, 2017, through May 31, 2019,
and in the amount of $400 per month commencing June 1,
2019, through March 31, 2021, including an adjustment for all
interest attributable to said amounts paid. Cash medical support
previously ordered that was designated as going to Amanda
in the amount of $5,683 was to be included in the arrearage
owed to Amanda by Shane, and all cash medical support that
was not designated to be paid to Amanda was determined to be
forgiven and not owed by Shane; “[o]ngoing cash medical sup-
port is not ordered at this time.” In addition to the child support
amount ordered, Shane was ordered to pay an additional $50
per month to be applied to the arrearage of his child support
obligation commencing May 1, 2021. Shane was ordered to
provide health insurance for Nathaniel through “Tricare,” and
Amanda was awarded the right to claim Nathaniel for income
tax purposes.
On May 5, 2021, Shane filed a notice of intent to appeal
the April 22 order of modification. Shane also filed a motion
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Cite as 30 Neb. App. 797for leave to proceed in forma pauperis (IFP), alleging that he
did “not have sufficient money or property to pay the costs
of this action.” Additionally, he filed an affidavit of poverty,
stating that he was unable to pay the costs of appeal, and
his financial affidavit. On May 10, the district court granted
Shane’s motion for leave to proceed IFP on appeal.
(f ) Nunc Pro Tunc
On July 23, 2021, Shane filed a motion for an order nunc
pro tunc to “correct the Order of Modification filed herein by
attaching a copy of the child support calculation adopted by
the Court.” In an order filed on July 26, the court sustained
Shane’s motion and ordered that the child support calculation
adopted by the court be attached to and made a part of the
order of modification entered on April 22.
Although the attachment to the April 22, 2021, modifica-
tion order appears to have occurred after Shane filed his
notice of appeal, the child support worksheet was required to
be attached, and in any event, it would have been requested
by this court on appeal. See Neb. Ct. R. App. P. § 4-203 (rev.
2020) (“[a]ll orders for child support, including modifications,
must include a basic income and support calculation worksheet
1, and if used, worksheet 2 or 3”). See, also, Jones v. Jones,
305 Neb. 615, 941 N.W.2d 501 (2020) (remanded matter to the
district court with directions to prepare and attach appropriate
child support worksheet to order of modification).
III. ASSIGNMENTS OF ERROR
Shane assigns, summarized and restated, that the district
court erred in (1) calculating his child support obligation
because it (a) included his VA disability benefit as income, (b)
failed to provide an appropriate deduction for his other chil-
dren, (c) failed to appropriately enter the exemptions awarded
to each party, and (d) failed to take into consideration the farm
losses he sustained; (2) failing to set his child support at a
minimum amount; and (3) failing to grant him a deviation in
child support.
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STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 797Amanda attempts to cross-appeal the district court’s orders
and assigns, reordered, that the district court erred in (1)
allowing Shane to not appear in person, (2) not allowing tes-
timony about Shane’s expenses, (3) allowing deductions for
after-born children, (4) allowing Shane to pay on his arrear-
ages in such a small amount, (5) not allowing attorney fees,
(6) granting Shane IFP status on appeal, and (7) failing to find
Shane in contempt. However, Amanda’s brief does not comply
with Neb. Ct. R. App. P. § 2-109(D)(4) (rev. 2022) and Krejci
v. Krejci, 304 Neb. 302, 934 N.W.2d 179 (2019). Additionally,
her claim regarding the court’s failure to find Shane in con-
tempt—the only claim that is argued after the section of her
brief labeled “Cross Appeal”—was not timely appealed as will
be explained later. The remainder of her claims, argued before
the section of her brief labeled “Cross Appeal,” will be con-
sidered for plain error only. See Tyler F. v. Sara P., 306 Neb.
397, 945 N.W.2d 502 (2020) (appellate court may, at its option,
notice plain error).
IV. STANDARD OF REVIEW
[1] Modification of child support is entrusted to the dis-
cretion of the trial court. Hotz v. Hotz, 301 Neb. 102, 917
N.W.2d 467 (2018). An appellate court reviews proceedings
for modification of child support de novo on the record and
will affirm the judgment of the trial court absent an abuse of
discretion. Id.[2] A judicial abuse of discretion exists if the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters
submitted for disposition. Kauk v. Kauk, 310 Neb. 329, 966
N.W.2d 45 (2021).
[3] Plain error exists where there is an error, plainly evident
from the record, which prejudicially affects a substantial right
of a litigant and is of such a nature that to leave it uncorrected
would cause a miscarriage of justice or result in damage to the
integrity, reputation, and fairness of the judicial process. Tyler
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STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 797V. ANALYSIS
1. Contempt
In her cross-appeal, Amanda claims that the district court
erred when it failed to find Shane in contempt for failure to
pay child support. However, Amanda did not timely appeal
from the district court’s March 23, 2021, order regarding her
contempt action; the court’s April 22 order did not address the
contempt action. Accordingly, we lack jurisdiction over the
contempt matter. See Belitz v. Belitz, 21 Neb. App. 716, 842
N.W.2d 613 (2014) (application to modify custody and appli-
cation for order to show cause regarding contempt were two
separate pleadings and presented separate issues even though
heard at same time; one sought new relief, and other sought
to enforce relief previously granted; each needed to be timely
appealed). See, also, Neb. Rev. Stat. § 25-1912 (Cum. Supp.
2020) (notice of appeal shall be filed within 30 days of entry
of judgment, decree, or final order).
2. Calculation of Child Support
[4,5] The party seeking the modification of child support
has the burden to produce sufficient proof that a material
change of circumstances has occurred that warrants a modifi­
cation. Keiser v. Keiser, 310 Neb. 345, 965 N.W.2d 786 (2021).
Neither party disputes that there has been a material change in
circumstances warranting the modification of child support.
The evidence is clear that both parties have had a significant
change in income since 2010 and that the 2010 support order
erroneously treated Shane’s VA disability income as taxable.
However, both parties claim error regarding the district court’s
calculation of Shane’s child support obligation. In general,
child support payments should be set according to the Nebraska
Child Support Guidelines. Dooling v. Dooling, 303 Neb. 494,
930 N.W.2d 481 (2019).
(a) VA Disability Benefit as Income
In the district court’s child support worksheet, Shane’s
monthly tax-exempt income was $4,337. This amount is
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Cite as 30 Neb. App. 797supported by Shane’s testimony that his current VA benefits are
approximately $4,337 per month and that the money is not tax-
able. However, Shane argues, without any supporting author-
ity, that the court erred in including his VA disability benefit
as income for purposes of child support. Shane claims his VA
disability benefit “should be considered to be in the nature of a
means-tested public assistance benefits [sic] as it is provided to
[Shane] as well as his children in lieu of earned income.” Brief
for appellant at 17.
[6] Neb. Ct. R. § 4-204(A) (rev. 2020) states in relevant part
that the total monthly income is the income of both parties
derived from all sources, except all means-tested public assist­
ance benefits. As pointed out by Amanda, even Shane testified
that he was entitled to the permanent VA disability payments,
even if he returned to paid employment, thus clearly making
such disability payments “not a ‘means’ tested public assist­
ance benefit.” Brief for appellee at 33. Further, the Nebraska
Supreme Court has found that VA disability benefits received
each month should be included as nontaxable income for pur-
poses of the child support calculation. See Dooling v. Dooling,
303 Neb. at 504, 930 N.W.2d at 493 (“[w]e agree with the par-
ties that the $763.36 that [the father] receives in [VA] disability
benefits each month should have been included as nontaxable
income for purposes of the child support calculation”).
The fact that a court in a different state found Shane was no
longer required to pay child support for a different child is of
no consequence in determining whether Shane’s VA disability
benefits can be considered income for child support purposes
in Nebraska. See, also, 45 C.F.R. § 303.11 (2020) (discretion-
ary versus mandatory case closure by “IV-D agency”; regula-
tion cited in Pennsylvania court order terminating Shane’s
child support for oldest daughter). Likewise, the fact that the
Department of Child Support Services Loma Linda “closed” its
case regarding Nathaniel on September 22, 2019, has no bear-
ing on whether Shane’s VA disability benefits can be consid-
ered income for child support purposes in Nebraska.
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Cite as 30 Neb. App. 797Accordingly, we find that Shane’s tax-exempt VA disability
benefits of $4,337 per month were properly included as income
for purposes of child support. Neither party disputes the district
court’s use of $3,310.66 for Amanda’s gross monthly income in
the child support worksheet.
(b) Deduction for Other Children
Shane argues that the trial court failed to provide an appro-
priate deduction for his other three children. “Rather than using
the guidelines to determine the amount of [his] income that
should be attributable to his three other children, the trial court
used the allocations made by the [VA].” Brief for appellant at
18. Shane argues that “[s]uch a method results in $533 being
awarded for Nathaniel’s support while only $200 each is set off
for the other three children,” and “[s]uch a disparity is grossly
inequitable.” Id. That is the full extent of Shane’s argument
on this issue. He appears to be arguing that awarding $533 in
child support for one child, Nathaniel, and only crediting $200
each for his other three children is inequitable. However, we
cannot say it was an abuse of discretion for the district court
to use the VA allocations as determinative of Shane’s deduc-
tion for “regular support” for his other children when no other
evidence was received to support deducting any other amount.
No child support guideline calculations were provided to show
what Shane would potentially pay in child support for his other
children based upon his income and his current wife’s income.
Without such evidence, it was certainly reasonable for the court
to provide a deduction for the other children by using the VA
amounts allocated for those children.
However, in reviewing the district court’s child support
worksheet, we see that the court allocated a $200 deduction
for “Previously Ordered Support” and an $800 deduction for
“Regular Support for Other Children.” We conclude it was an
abuse of discretion to deduct a total of $1,000 for support of
Shane’s other children, rather than $600, as explained below.
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STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 797As noted, the district court gave Shane a $200 monthly
deduction for “Previously Ordered Support.” See Neb. Ct. R.
§ 4-205(D) (rev. 2016). However, Shane’s child support obli-
gation for his oldest daughter was terminated in August 2020.
Therefore, the $200 monthly deduction for previously ordered
support was an abuse of discretion.
For “Regular Support for Other Children,” the district court
deducted $800. While Shane should not have been given a $200
monthly deduction for previously ordered support, he may be
eligible for a $200 deduction for the regular support he pays
for his oldest daughter. Section 4-205(E) provides that, subject
to Neb. Ct. R. § 4-220, credit may be given for biological or
adopted children for whom the obligor provides regular sup-
port. Section 4-220 states that an obligor shall not be allowed
a reduction in an existing support order solely because of the
birth, adoption, or acknowledgment of subsequent children of
the obligor; however, a duty to provide regular support for sub-
sequent children may be raised as a defense to an action for an
upward modification of such existing support order.
When Shane was asked whether he still paid support on
behalf of his oldest daughter even though it was not required
by the court, Shane replied, “Yes.” He confirmed that he still
paid the $200 per month allotted to her from the VA.
Shane further testified that he receives a $200 monthly allot-
ment from the VA for each of the two children that currently
live in his home, a total of $400 per month. He testified that
he used VA benefits to pay the family’s household expenses.
Accordingly, pursuant to § 4-205(E), Shane may be eligible for
a deduction of $400 per month for the two children that cur-
rently reside in his home.
Based on the evidence at trial, Shane receives a total of
$600 per month in allotments from the VA for the benefit of
his oldest daughter and the two children who currently reside
with him. No other evidence was given regarding support he
pays for those three children. Accordingly, the district court
abused its discretion in giving Shane monthly deductions
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Cite as 30 Neb. App. 797for previously ordered support and regular support for other
children totaling $1,000, as there was no evidence justifying
that amount. At most, based upon the limited record provided
on this issue, Shane was eligible for a $600 deduction from
his VA disability income as a credit for regular support for his
other children. Our own child support calculation worksheet,
which is attached to this opinion as appendix A, will include a
$600 deduction pursuant to § 4-205(E).
(c) Exemptions
Shane contends the district court erred in failing to prop-
erly enter the exemptions awarded to each party in calculating
child support; he points out that although the court awarded
the income tax exemption to Amanda, the court split the
exemption between the parties. We agree, and we will give
the exemption for Nathaniel to Amanda in our own child sup-
port calculation worksheet, which is attached to the opinion as
appendix A.
(d) Farm Losses
Shane argues that the district court failed to take into con-
sideration the farm losses he sustained. He claims that he and
his wife started a pig operation in good faith, anticipating
that they would be able to make a living from the operation,
but that due to various factors, the operation was not profit-
able and instead served to deplete his income. He additionally
claims that the pig operation “was failing and would continue
to fail due to his inability to obtain additional capital in part
because of his child support obligation and arrearage.” Brief
for appellant at 19. However, Nathaniel’s child support obli-
gation should not be reduced as a result of Shane deciding to
deplete his income to support a business venture that has failed
to yield a profit.
Shane has been ordered to pay child support for Nathaniel
since 2010. However, other than $1,066.58 that was garnished
from him in 2012, Shane has not paid any amount of child
support for Nathaniel from 2010 until 2017, when Amanda
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STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 797had money redirected to Nathaniel from Shane’s VA disabil-
ity benefits. The record does not reveal whether or for how
long Shane may have been receiving benefits on behalf of
Nathaniel before those benefits were redirected to Amanda for
Nathaniel’s benefit. Rather than using his VA income to pay
court-ordered support for Nathaniel, Shane instead chose to
invest in a pig operation in approximately 2017 that has failed
to make a profit and which he admits will continue to fail
to make a profit. Despite the failing business venture, Shane
continues to expend $4,500 of his VA income every 3 months
to feed the pigs. Incredibly, he blames his child support obli-
gation and arrearage as the reason the pig operation will not
make a profit, and he asks that his child support obligation be
eliminated or reduced. Under the circumstances of this case,
the district court did not abuse its discretion when it did not
take into account the farm losses in its child support order.
Nor did the district court abuse its discretion when it did not
set Shane’s child support at a minimum amount or grant him
a deviation.
(e) Child Tax Credit
Although not assigned as error by either party, we note a
matter of plain error. In its oral pronouncement, the district
court stated that Amanda was to receive the tax credit for
Nathaniel each year, if eligible; the tax credit was not men-
tioned in the written order of modification. Nevertheless, the
district court’s child support calculation included a child tax
credit of $83.33 for each parent; this was plain error as only
Amanda was to receive any tax credit. The $83.33 credit for
Shane will be eliminated in our own child support calculation
worksheeet, which is attached to this opinion as appendix A.
(f ) Child Support Calculation
The district court’s child support calculation included
errors, specifically the deductions, credits, and exemptions, as
noted previously. We have completed our own child support
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STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 797calculation worksheet, which is attached to this opinion as
appendix A. The district court used the tax filing status of
“Head of Household” for both parties in its child support
calculation worksheet. We will use the same in our calcula-
tion, although we note that since Shane’s VA income is tax
exempt, his filing status on the worksheet makes no difference
in the outcome.
Under our de novo calculation, Shane’s monthly child sup-
port obligation should be $562 per month, not $533 per month,
and we modify the district court’s order accordingly. But, as
noted in the district court’s order, Shane shall receive a credit
against the child support ordered in the amount of the appor-
tionment payment sent by the VA on behalf of Nathaniel, cur-
rently in the amount of $400 per month.
We find no plain error in the district court’s decision to order
Shane to pay an additional $50 per month to be applied to his
arrearage.
(g) Miscellaneous Claims
We find no plain error in the district court’s decision to
allow Shane to appear via videoconference or telephone, order
each party to pay his or her own attorney fees, or allow Shane
to proceed IFP on appeal.
VI. CONCLUSION
For the reasons stated above, we lack jurisdiction over the
contempt matter as there was no timely appeal from that order.
As to the order of modification, because of the errors noted
above, we have completed our own child support calculation
worksheet, which is attached to this opinion as appendix A.
We modify and order Shane’s regular child support obliga-
tion to be $562 per month, rather than $533 per month, with
credit against that child support in the amount of $400 per
month for payments sent by the VA on behalf of Nathaniel, as
addressed above.
Affirmed as modified.
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STATE ON BEHALF OF NATHANIEL R. v. SHANE F.
Cite as 30 Neb. App. 797APPENDIX A
Case Name: State o.b.o. Nathaniel R.
Worksheet 1 - Basic Income and Support Calculation
Mother: Head of Household / 2 Exemptions / Regular Employment
Father: Head of Household / 1 Exemptions / Regular Employment
Line Description Mother Father
1 Gross Earned Taxable Income $3,310.66 $0.00
1 Gross Unearned Taxable Income $0.00 $0.00
1 Tax-Exempt Income $0.00 $4,337.00
2.a Taxes - Federal $185.61 $0.00
2.a Taxes - Nebraska $57.88 $0.00
2.b FICA - Social Security / Railroad Retirement* $205.26 $0.00
2.b FICA - Medicare $48.00 $0.00
2.c Retirement $132.43 $0.00
2.d Previously Ordered Support $0.00 $0.00
2.e Regular Support for Other Children $0.00 $600.00
2.f Health Insurance Premium for Parent $0.00 $0.00
Other Deductions $0.00 $0.00
Child Tax Credit ($83.33) ($0.00)
2.g Total Deductions $545.85 $600.00
3 Net Monthly Income $2,764.81 $3,737.00
4 Combined Net Monthly Income $6,501.81
5 Combined Net Annual Income $78,021.76
6 Each Parent's Percent 42.52% 57.48%
7 Monthly Support from Table (1 Child) $978.00
8 Health Insurance Premium for Children $0.00 $0.00
9 Total Obligation $978.00
10 Each Parent's Monthly Share $415.85 $562.15
11 Credit For Health Insurance Premium Paid ($0.00) ($0.00)
12 Each Parents' Final Share (1 Child, rounded) $416.00 $562.00
Worksheet 4 - Number of Children Calculation (final shares are rounded to the nearest whole dollar)
No. Table Table + Mother's Share Father's Share Mother's Final Father's Final
Children Amt. Health Ins. of Total of Total Share Share
1 $978.00 $978.00 $415.85 $562.15 $416.00 $562.00