State on behalf of Fernando L. v. Rogelio L.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/08/2018 09:10 AM CDT
- 329 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.
Cite as 299 Neb. 329
State of Nebraska on behalf of the State of
Indiana and Fernando L., a minor child,
appellee, v. Rogelio L., appellant.
___ N.W.2d ___
Filed March 16, 2018. No. S-17-348.
1. Modification of Decree: Child Support: Appeal and Error.
Modification of child support payments is entrusted to the trial court’s
discretion, and although, on appeal, the issue is reviewed de novo on the
record, the decision of the trial court will be affirmed absent an abuse
of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
3. Child Support: Rules of the Supreme Court: Appeal and Error.
Interpretation of the Nebraska Child Support Guidelines presents a ques-
tion of law. An appellate court resolves questions of law independently
of the lower court’s conclusion.
4. Child Support: Rules of the Supreme Court. In calculating a parent’s
child support obligation, the Nebraska Child Support Guidelines permit
a court to deduct a parent’s obligation to support subsequent children
from his or her monthly income in some circumstances.
5. ____: ____. The Nebraska Supreme Court interprets the expression
“subsequent children” in Neb. Ct. R. § 4-220 to mean children born after
an existing support order.
6. Modification of Decree: Child Support: Proof. A party seeking to
modify a child support order must show a material change in circum-
stances which (1) occurred subsequent to the entry of the original decree
or previous modification and (2) was not contemplated when the decree
was entered.
7. Child Support: Rules of the Supreme Court: Taxes. In calculating
a parent’s monthly net income for child support purposes, Neb. Ct. R.
- 330 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.
Cite as 299 Neb. 329
§ 4-205(A) (rev. 2016) allows a deduction for taxes, as established by
standard deductions applicable to the number of exemptions provided
by law.
8. Appeal and Error. An appellate court is not obligated to engage in an
analysis which is not needed to adjudicate the controversy before it.
Appeal from the District Court for Adams County: Terri
S. H arder, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Jamie L. Arango, of Arango Law, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
Funke, JJ.
Miller-Lerman, J.
INTRODUCTION
Rogelio L. appeals the order of the district court for Adams
County that dismissed his March 2, 2016, complaint for a
downward modification of his child support obligation to his
son, Fernando L., originally ordered at $388 per month on
August 18, 2010. The district court concluded that Rogelio
had not shown a material change in circumstances warrant-
ing a reduction in his monthly child support obligation to
Fernando. No tax returns or financial documents were in
evidence; Rogelio testified about his income and admitted
that he did not pay taxes. The district court determined that
Rogelio should not receive any deduction from his total
monthly income for taxes. The district court also found
that Rogelio’s three “after-born” children could not be used
to lower his child support obligation to Fernando. Rogelio
appeals. We find no error in the district court’s determination
regarding taxes and affirm this ruling. However, because we
conclude that the district court based its child support cal-
culation on an incorrect understanding of the birth order of
Rogelio’s children relative to Fernando and the 2010 child
- 331 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.
Cite as 299 Neb. 329
support order, we reverse this aspect of the order and remand
the cause with directions.
BACKGROUND
2010 Order
In 2010, the State brought an action against Rogelio pursu-
ant to the Uniform Interstate Family Support Act to establish
Rogelio’s paternity of and child support obligation to his
son Fernando, who was born in June 2004 and lived with
his mother in Indiana. In an order filed August 18, 2010,
the district court for Adams County found that Rogelio was
Fernando’s father and ordered him to pay child support of $388
per month. The district court based its calculation on Rogelio’s
net monthly income of $1,291.31, which took into account
his regular support of two other children. While the original
support order did not include the names or ages of these other
children, it is apparent from the record as a whole that they are
Sheryl L., born in 2007, and a son, born in 2009. The record
indicates, but does not explicitly state, that Rogelio’s son born
in 2009 died in 2012.
2016 Complaint
On March 2, 2016, Rogelio filed a complaint for modifica-
tion of his child support obligation to Fernando. He alleged that
there had been a material change in circumstances, because his
income had decreased by an amount that would reduce his
child support obligation by at least 10 percent and because his
income fell below the federal poverty guidelines. See, Neb. Ct.
R. § 4-217; Neb. Ct. R. § 4-218 (rev. 2018).
2016 R eferee R eport
The matter was referred to a child support referee who con-
ducted a hearing and prepared a report. The bill of exceptions
from the hearing is not in the record before us. However, the
referee’s report, filed October 31, 2016, recounted Rogelio’s
testimony that he netted $400 per week (projected as $1,733.33
per month) working as a handyman and that he paid no
- 332 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.
Cite as 299 Neb. 329
taxes—income taxes or payroll taxes—on this income. The ref-
eree stated that according to Rogelio, he had “one older child
than the child at issue in this action,” which “older child” was
“8 years old,” as well as two younger children, ages 1 and 2.
As an aside, we note that Fernando, born in June 2004, was 12
years old at the time of the referee’s report, making the finding
that an “8-year-old” was “older” inaccurate.
Using a net monthly income of $1,733.33 and applying a
setoff for regular support of the “8-year-old” child, but not for
the two younger children, the referee reduced Rogelio’s child
support obligation to Fernando from $388 per month to $346
per month. The referee, however, rejected Rogelio’s arguments
that he should receive a deduction for his income tax liability
and that his income fell below the poverty level.
2017 District Court Order
Rogelio filed exceptions to the referee’s report that had
recommended a reduction of his child support from $388 to
$346 per month. He requested that the district court reverse
and vacate the referee’s report. Rogelio alleged, inter alia, that
the referee was mistaken in the birth order and ages of his chil-
dren and the application of poverty guidelines. A hearing was
conducted on February 28, 2017, and the record of that hearing
has been submitted to us. At that hearing, Rogelio testified and
the district court received evidence consisting of three birth
certificates and several child support calculations. Rogelio
did not offer the bill of exceptions from proceedings with the
referee. Ultimately, the district court dismissed Rogelio’s com-
plaint in an order filed March 17, 2017, from which this appeal
is taken.
At the hearing on the matter on February 28, 2017, Rogelio
clarified the birth order and ages of his children. He produced
evidence that at the time of the hearing, he and his cur-
rent spouse had three children, all of whom were born after
Fernando’s birth in 2004. The birth years of the other children
are: 2007, 2014, and 2015. The record indicates that Fernando
also had another child, a son born in 2009, who died in 2012.
- 333 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.
Cite as 299 Neb. 329
We summarize the evidence concerning these children again in
the analysis below. Taking the record as a whole, the evidence
shows that Fernando and two other children were born before
the 2010 child support order; support for the two other chil-
dren was included in the 2010 child support calculation; one of
those two other children died after the 2010 order but before
the current modification proceedings; and, in addition, two
children were born after the 2010 child support order.
Rogelio testified that healthcare for Fernando’s three surviv-
ing half siblings is covered by Medicaid and that Rogelio’s
spouse was not employed but was able to work.
At the hearing, Rogelio testified that he formerly worked for
a company that paid him $15 per hour and withheld taxes from
his paycheck. However, he testified that at the time of this
hearing, his current employer paid him $10 per hour in cash for
working 40 hours per week and he does not pay any taxes. He
stated he understood that he was required by law to pay taxes
and that if he did not do so now, he would be forced to do so
in the future.
As noted, the record does not contain any income tax returns
or pay stubs, but the district court received proposed child sup-
port calculations offered by Rogelio and the State. Rogelio’s
calculations deducted amounts for taxes to determine his net
monthly income. The State’s calculations did not deduct taxes,
and the district court adopted the State’s calculations.
In an order filed March 17, 2017, the district court dis-
missed Rogelio’s request for modification. Regarding the
children, it concluded that there were certain factual errors
in the referee’s report regarding their ages and birth order.
Specifically, the district court noted that Fernando was the
oldest of Rogelio’s children. But it found that all of Rogelio’s
other children were “after-born,” presumably in relation to
Fernando and after the existing 2010 child support order.
Based on this finding, the district court made no deduction for
Rogelio’s other children either as “Child Support Previously
Ordered” or as “Regular Support.” Regarding taxes, the dis-
trict court rejected Rogelio’s argument that although he does
- 334 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.
Cite as 299 Neb. 329
not pay taxes, he should receive a deduction from his total
monthly income for the taxes he should be paying. That is,
like the referee, the district court adopted the State’s position
that Rogelio should not receive a deduction for taxes he does
not pay.
With these determinations in mind, the district court recal-
culated Rogelio’s child support obligation for Fernando. It con-
cluded that Rogelio’s obligation should have increased rather
than decreased, because he could not receive a deduction for
support of his other children and because, without a deduc-
tion for taxes, his monthly net income had actually increased.
Rogelio appeals from the March 17, 2017, order.
ASSIGNMENTS OF ERROR
Rogelio claims, combined and restated, that the district
court erred when it (1) performed child support calculations
based on incorrect findings regarding the children’s birth
order and existing child support and (2) failed to deduct his
tax liability from his monthly income. He also contends that
a poverty assessment of his circumstances should be made in
this case.
STANDARDS OF REVIEW
[1,2] Modification of child support payments is entrusted to
the trial court’s discretion, and although, on appeal, the issue
is reviewed de novo on the record, the decision of the trial
court will be affirmed absent an abuse of discretion. Pearson
v. Pearson, 285 Neb. 686, 828 N.W.2d 760 (2013). A judicial
abuse of discretion exists when reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
for disposition. Schwarz v. Schwarz, 289 Neb. 960, 857 N.W.2d
802 (2015).
[3] Interpretation of the Nebraska Child Support Guidelines
presents a question of law. Schwarz v. Schwarz, supra. We
resolve questions of law independently of the lower court’s
conclusion. Id.
- 335 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.
Cite as 299 Neb. 329
ANALYSIS
Child Support and Other Children
Rogelio contends that the district court erred in performing
child support calculations based on incorrect findings regard-
ing the children’s birth order. He claims that the district court
erred when it failed to distinguish between children born after
Fernando but before the 2010 child support order and children
born subsequent to the 2010 child support order. Given the
record, we agree that the district court erred.
[4] In calculating a parent’s child support obligation, the
Nebraska Child Support Guidelines permit a court to deduct
a parent’s obligation to support subsequent children from his
or her monthly income in some circumstances. Neb. Ct. R.
§ 4-205(E) (rev. 2016) provides that “[s]ubject to § 4-220,
credit may be given for biological or adopted children for
whom the obligor provides regular support.” Neb. Ct. R.
§ 4-220 sets forth a limitation on credit for support of subse-
quent children:
An obligor shall not be allowed a reduction in an
existing support order solely because of the birth, adop-
tion, or acknowledgment of subsequent children of the
obligor; however, a duty to provide regular support for
subsequent children may be raised as a defense to an
action for an upward modification of such existing sup-
port order.
[5,6] Based on our reading of § 4-220, we interpret the
expression “subsequent children” to mean children born after
an existing support order. This interpretation of “subsequent
children” is consistent with the jurisprudence of modification,
which contemplates a circumstance that was not present at
the time of the original decree. It is well settled that a party
seeking to modify a child support order must show a mate-
rial change in circumstances which (1) occurred subsequent to
the entry of the original decree or previous modification and
(2) was not contemplated when the decree was entered. State
on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257
 - 336 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.
Cite as 299 Neb. 329
(2014). And our understanding of “subsequent children” as
children born after the existing support order is borne out in
our case law. See, e.g., Wilkins v. Wilkins, 269 Neb. 937, 697
N.W.2d 280 (2005) (regarding child born after existing support
order as subsequently born child for purposes of paragraph T
of guidelines, predecessor to § 4-220).
In this case, the district court referred to all of Rogelio’s
children, other than Fernando, as “after-born” and, therefore,
concluded that Rogelio could not use them in a calculation
to lower his support. In essence, the district court classi-
fied all three of Rogelio’s children who were younger than
Fernando as children born subsequent to the existing support
order for the purposes of § 4-220. As Rogelio points out, since
Sheryl was born in 2007, this finding is inconsistent with the
evidence; and it shows an incorrect reading of the 2010 sup-
port order.
Taking the record as a whole, the birth order of Rogelio’s
children, relative to the original 2010 support order for
Fernando, is as follows:
Date Event
June 2004 Fernando born
December 2007 Sheryl born
2009 Unnamed son born
August 18, 2010 Order of child support for Fernando
2012 Unnamed son dies
August 2014 Zoey L. born
August 2015 Roy L. born
We note that the existing 2010 child support order showed
deductions for the regular support of two children; given the
record, the two children must be Sheryl, born in 2007, and a
son who was born in 2009 and died in 2012. Clearly, in 2017,
the district court was correct in not considering a deduction for
regular support of Rogelio’s deceased son; however, the same
cannot be said for Sheryl.
At its core, this case seeks to modify the 2010 order, which
was premised on the existence of Fernando plus Rogelio’s
obligation to two other children. A trial court has discretion
- 337 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.
Cite as 299 Neb. 329
to choose whether and how to calculate a deduction for sub-
sequent children. See, § 4-220; Schwarz v. Schwarz, 289 Neb.
960, 857 N.W.2d 802 (2015). However, in this case, the dis-
trict court has mistakenly referred to Sheryl, whose existence
and regular support was acknowledged in the 2010 order, as a
child subsequent to the 2010 order. The district court did not
incorporate or analyze Rogelio’s entitlement to a deduction for
Sheryl’s support, as is allowed under the guidelines and as was
done in the existing 2010 support order under review by the
district court. We believe that the district court’s misstatement
of the facts led to an erroneous application of the relevant law
and calls into question the soundness of the calculation upon
which the district court’s order is based. Consequently, we
conclude that the district court abused its discretion and we
reverse, and remand with directions to render a calculation
based on the record, including evidence received at the hearing
on February 28, 2017.
Tax Liability
Rogelio asserts that the district court erred in declining
to allow him a deduction from his total monthly income for
taxes for which he was liable but did not pay. Due to a failure
of proof, we find no error in the district court’s treatment of
Rogelio’s tax liability in the 2017 order, and we affirm this
aspect of the district court’s order.
[7] In calculating a parent’s monthly net income for child
support purposes, § 4-205(A) allows a deduction for taxes, as
established by standard deductions applicable to the number
of exemptions provided by law. The guidelines further provide
that copies of at least 2 years’ tax returns, financial statements,
and current wage stubs should be furnished to the court for
purposes of determining the parents’ income in order to cal-
culate child support. Neb. Ct. R. § 4-204 (rev. 2016); Neb. Ct.
R. ch. 4, art. 2, worksheet 1 (rev. 2016). Our cases recognize
that a failure to provide the proper documents limits the district
court’s analysis. See, e.g., Henderson v. Henderson, 264 Neb.
916, 653 N.W.2d 226 (2002).
- 338 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.
Cite as 299 Neb. 329
In the instant case, Rogelio did not submit any tax returns
or other documentary evidence of his wages at the time of the
modification hearing before the district court. However, he
did testify that he was paid $400 per week in cash and that he
did not pay any taxes, although he acknowledged that he was
required by law to pay them.
The record in State on behalf of Andrew D. v. Bryan B., 22
Neb. Ct. App. 914, 864 N.W.2d 249 (2015), presented a circum-
stance involving a limited record. In that case, the father did
not keep consistent business records and had not filed personal
or business tax returns for several years. On appeal, the father
claimed that the trial court erred in basing his income on
speculation. In rejecting the father’s contention, the Nebraska
Court of Appeals observed, “[The father] put himself in the
position in which he now claims error. There was no clear
evidence of his income because he voluntarily failed to file tax
returns . . . and does not keep reliable or complete business
records.” Id. at 922, 864 N.W.2d at 256.
We find the reasoning in State on behalf of Andrew D. v.
Bryan B., supra, to be instructive here. Rogelio presented the
district court with limited evidence upon which to base its
child support calculations, and Rogelio’s own testimony that he
did not pay taxes supported the district court’s refusal to deduct
them from his income. Although at oral argument, Rogelio
referred to income-related documents which were purportedly
before the referee, Rogelio did not put the proceedings with the
referee in evidence and they were therefore not available for
the district court’s or this court’s consideration. Compare State
on behalf of Lockwood v. Laue, 24 Neb. Ct. App. 909, 900 N.W.2d
582 (2017). Accordingly, the district court did not abuse its dis-
cretion when it declined to deduct Rogelio’s tax liability from
his monthly income and we affirm the portion of the district
court’s order concerning a deduction for taxes.
Poverty Assessment
[8] Rogelio claims that the district court erred when it
did not consider the basic subsistence limitation set forth in
- 339 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.
Cite as 299 Neb. 329
§ 4-218, which provides that a parent’s support, child care,
and health care obligation shall not reduce his or her net
income below the federal poverty guidelines. Given that we
have rejected the district court’s child support calculation
and, with the exception of the tax-related ruling, reversed the
March 17, 2017, order and remanded the cause with direc-
tions, we need not consider this issue. An appellate court is
not obligated to engage in an analysis which is not needed to
adjudicate the controversy before it. In re Interest of Nicole
M., 287 Neb. 685, 844 N.W.2d 65 (2014). However, following
a child support calculation on remand in accordance with the
guidelines, consideration of the basic subsistence limitation
may be warranted.
CONCLUSION
For the reasons stated above, we conclude that the district
court did not err in its ruling regarding taxes and we affirm
this portion of the order. However, we conclude that the district
court abused its discretion in basing its child support calcula-
tion on a flawed understanding of the evidence regarding the
birth order of the children and Rogelio’s support obligations as
required by the 2010 order, and we reverse, and remand with
directions to enter an order in accordance with a child support
calculation based on the record, including evidence received at
the hearing on February 28, 2017.
A ffirmed in part, and in part reversed
and remanded with directions.
Wright and K elch, JJ., not participating.