Fetherkile v. Fetherkile

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/13/2018 01:14 AM CDT
- 76 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76Jessica R enee Fetherkile, appellee, v.
Brandon Lee Fetherkile, appellant.
___ N.W.2d ___
Filed February 23, 2018. No. S-16-1159.
1. Statutes. Statutory interpretation presents a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
3. Divorce: Child Custody: Child Support: Property Division: Alimony:
Attorney Fees: Appeal and Error. In an action for the dissolution of
marriage, an appellate court reviews de novo on the record the trial
court’s determinations of custody, child support or a modification of
an existing order of support, property division, alimony, and attorney
fees; these determinations, however, are initially entrusted to the trial
court’s discretion and will normally be affirmed absent an abuse of
that discretion.
4. Judges: Words and Phrases. A judicial abuse of discretion exists if the
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.
5. Evidence: Appeal and Error. In a review de novo on the record, the
court is required to make independent factual determinations based upon
the record, and the court reaches its own independent conclusions with
respect to the matters at issue. When evidence is in conflict, the appel-
late 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.
6. Paternity: Statutes. Paternity proceedings are purely statutory, and
such statutes must be strictly construed because they modify the com-
mon law.
7. Judgments: Jurisdiction: Claim Preclusion. Claim preclusion bars
relitigation of any right, fact, or matter directly addressed or necessarily
- 77 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76included in a former adjudication if (1) the former judgment was ren-
dered by a court of competent jurisdiction, (2) the former judgment was
a final judgment, (3) the former judgment was on the merits, and (4) the
same parties or their privies were involved in both actions.
8. Claim Preclusion. The doctrine of claim preclusion bars relitigation not
only of those matters actually litigated, but also of those matters which
might have been litigated in the prior action.
9. ____. The doctrine of claim preclusion rests on the necessity to termi-
nate litigation and on the belief that a person should not be vexed twice
for the same cause.
10. Claim Preclusion: Issue Preclusion. Whether the doctrine of either
claim preclusion or issue preclusion applies in any given case is neces-
sarily fact dependent.
11. Child Support: Parent and Child: Statutes. Nebraska’s statutes do not
impose a child support obligation upon any parties except the legally
determined parents of a child.
12. Child Support: Paternity. Any order imposing an obligation of child
support is necessarily a legal determination of paternity.
13. Child Support: Paternity: Final Orders. A paternity determination in
a support order, under Neb. Rev. Stat. §§ 43-1411 or 43-512.04 (Reissue
2016), is a final judgment on the issue of paternity.
14. Claim Preclusion: Judgments. For purposes of claim preclusion, a
judgment on the merits is one which is based on legal rights, as distin-
guished from mere matters of practice, procedure, jurisdiction, or form.
15. Judgments: Stipulations: Final Orders. A stipulated judgment oper-
ates on the merits and is as final and binding upon the parties as a decree
rendered after a hearing on the merits.
16. Divorce: Courts: Taxation. A state court having jurisdiction in a dis-
solution action has the power to allocate tax dependency exemptions as
part of the dissolution decree.
17. Divorce: Taxation. A tax dependency exemption is nearly identical in
nature to an award of child support or alimony.
18. Child Support: Judgments. Childcare costs may be awarded as an
incident to child support.
19. Statutes: Legislature: Presumptions: Judicial Construction. In deter-
mining the meaning of a statute, the applicable rule is that when the
Legislature enacts a law affecting an area which is already the subject
of other statutes, it is presumed that it did so with full knowledge of the
preexisting legislation and the decisions of the Supreme Court constru-
ing and applying that legislation.
20. Statutes: Appeal and Error. Statutory language is to be given its
plain and ordinary meaning, and an appellate court will not resort to
- 78 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76interpretation to ascertain the meaning of statutory words which are
plain, direct, and unambiguous.
21. Statutes: Legislature: Intent. In reading a statute, a court must deter-
mine and give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
22. Modification of Decree: Child Support. Under Neb. Rev. Stat.
§ 42-364 (Reissue 2016), a court may allow an existing support order
to remain in effect without modification after considering whether a
modification of the existing order is warranted, rather than making an
independent calculation of child support.
23. Due Process. Due process principles protect individuals from arbitrary
deprivation of life, liberty, or property without due process of law.
24. Due Process: Notice. Due process does not guarantee an individual any
particular form of state procedure; instead, the requirements of due proc­
ess are satisfied if a person has reasonable notice and an opportunity to
be heard appropriate to the nature of the proceeding and the character of
the rights which might be affected by it.
25. Constitutional Law: Due Process. The determination of whether pro-
cedures afforded an individual comport with constitutional requirements
for procedural due process presents a question of law.
26. Child Support. Child support orders are always subject to review
and modification.
27. 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.
28. Modification of Decree: Child Support. Among the factors to be
considered in determining whether a material change of circumstances
has occurred are changes in the financial position of the parent obli-
gated to pay support, the needs of the children for whom support
is paid, good or bad faith motive of the obligated parent in sustain-
ing a reduction in income, and whether the change is temporary or
permanent.
29. ____: ____. The paramount concern in child support cases, whether in
the original proceeding or subsequent modification, remains the best
interests of the child.
30. Modification of Decree: Child Support: Proof. The party seeking
the modification has the burden to produce sufficient proof that a
material change of circumstances has occurred that warrants a modifi-
cation and that the best interests of the child are served thereby.
- 79 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 7631. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue
2016), the equitable division of property is a three-step process. The
first step is to classify the parties’ property as marital or nonmarital.
The second step is to value the marital assets and marital liabilities
of the parties. The third step is to calculate and divide the net marital
estate between the parties in accordance with the principles contained in
§ 42-365.
32. Property Division. Marital debt includes only those obligations incurred
during the marriage for the joint benefit of the parties.
33. Property Division: Proof. The burden to show that a debt is nonmarital
is on the party making that assertion.
34. Divorce: Attorney Fees. In awarding attorney fees in a dissolution
action, a court should consider the nature of the case, the amount
involved in the controversy, the services actually performed, the results
obtained, the length of time required for preparation and presentation
of the case, the novelty and difficulty of the questions raised, and the
customary charges of the bar for similar services.
35. Courts: Attorney Fees. Courts have the inherent power to award attor-
ney fees in certain unusual circumstances amounting to conduct during
the course of litigation which is vexatious, unfounded, and dilatory,
such that it amounts to bad faith.
36. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
Appeal from the District Court for Pawnee County: Daniel
E. Bryan, Jr., Judge. Affirmed.
Angelo M. Ligouri, of Ligouri Law Office, for appellant.
No appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Funke, J.
Brandon Lee Fetherkile appeals from a dissolution decree
entered by the Pawnee County District Court, which dissolved
his marriage to Jessica Renee Fetherkile. The court ruled that
Brandon was the legal father of Ariana D. and ordered him to
- 80 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76pay child support for Ariana and two other children, pursuant
to an order for support in a separate case.
Primarily, Brandon argues that the evidence showed that he
was not the biological or legal father of Ariana; so, the court
erred in finding that he was Ariana’s father and making any
order regarding her. Further, he asserts that the court erred
in not making an independent determination regarding child
support and attaching a child support calculation worksheet to
the decree.
We reject Brandon’s arguments because the existing order
of support was res judicata on the issue of Brandon’s paternity
and Brandon failed to elicit sufficient evidence to warrant a
modification of the existing order of support. Further, because
the court did not modify the existing order of support, it was
not required to attach a worksheet to its decree. We also find
Brandon’s remaining assignments of error to be without merit.
Therefore, we affirm.
I. BACKGROUND
Brandon and Jessica were married in June 2010 and sepa-
rated in March 2013. Jessica filed a complaint for dissolution
in December 2014, and Brandon filed a counterclaim, which
he labeled a cross-complaint, for dissolution in June 2015.
Trial was held in November 2016.
Jessica has three children: a daughter, born in 2013; another
daughter, born in 2008; and Ariana, born in 2006. In her
complaint and during her direct testimony, Jessica alleged
that Brandon was the legal father of all three children. In
his counterclaim, Brandon disputed paternity over Ariana and
requested genetic testing to determine whether he was the bio-
logical father.
In November 2014, in case No. CI 14-12, a separate pro-
ceeding in the Pawnee County District Court, the court entered
an order for support, based upon a stipulation of the parties.
It found that Brandon had acknowledged paternity of all three
children, ruled that he was their father, and ordered Brandon
to pay Jessica child support.
- 81 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76At the dissolution trial, Jessica requested the court to
continue the order of child support from case No. CI 14-12.
Nonetheless, upon cross-examination, Jessica testified that
Brandon was not Ariana’s biological father. Jessica also stated
that despite the fact she had put Brandon’s name on Ariana’s
birth certificate, he never signed it, and that Brandon had
been pursuing legal adoption of Ariana before the separa-
tion. She also acknowledged that Brandon has two other
children not born of the marriage, including one which was
born around August 2016. Further, the record does not reflect
whether the biological testing that Brandon requested was
ever performed.
The parties did not contest the division of assets. Jessica
requested that the parties equally split all debts incurred before
the separation and only debts related to their children after
the separation. She testified and entered evidence concerning
several debts related to medical expenses for the children.
One exhibit, however, was a collection notice for a debt
from Jessica’s bank account that Jessica testified was incurred
before the separation.
Jessica also requested at least $3,000 from Brandon for
attorney fees. She stated that she incurred extra expenses in
the proceedings because of his delays, failures to appear, last
minute continuances, and failure to timely respond to discovery
requests, even after her having a motion to compel granted.
She presented evidence that she incurred $7,420 of attorney
fees for the proceedings.
After the close of the evidence, the court ruled from
the bench. In doing so, it stated that it was “not going to
change the child support in this case,” because Brandon
had failed to produce sufficient evidence of his change in
income to justify a modification. Further, it explained that
Brandon still had the opportunity to seek a modification of
the support order by filing for a modification in the prior case.
Additionally, the court divided all of the debts submitted into
evidence equally, ordered Brandon to pay $3,000 of Jessica’s
- 82 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76attorney fees, and ordered that neither party was required to
provide insurance for the children.
At a later date, the court signed a decree of dissolution
which ordered Brandon to provide child support pursuant to
the order of support in effect from case No. CI 14-12. Brandon
filed a timely appeal. We removed the case to our docket on
our own motion pursuant to our authority to regulate the case­
loads of the Nebraska Court of Appeals and this court.1
II. ASSIGNMENTS OF ERROR
Brandon assigns, reordered and restated, that the court erred
in (1) not attaching a Nebraska child support worksheet to the
decree; (2) ordering child support pursuant to a prior order in
separate proceedings; (3) not allowing Brandon to present evi-
dence on his cross-claim or respond to Jessica’s presentation
of evidence; (4) finding that Ariana was a child of the parties;
(5) determining custody, parenting time, child support, and
expenses of Ariana, because she is not Brandon’s child; (6)
ordering child support and income tax dependencies based on
three children; (7) equally splitting all of the parties’ outstand-
ing bank debts; and (8) awarding Jessica attorney fees. He also
asserts, restated, that the court’s ruling was erroneous because
(9) it was unjust, inequitable, and could not be reached as a
matter of law and (10) it was contrary to the evidence and the
law and constituted an abuse of discretion.
III. STANDARD OF REVIEW
[1,2] Statutory interpretation presents a question of law.2
When reviewing questions of law, an appellate court has an
obligation to resolve the questions independently of the conclu-
sion reached by the trial court.3
[3] In an action for the dissolution of marriage, an appel-
late court reviews de novo on the record the trial court’s
1
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
2
White v. White, 296 Neb. 772, 896 N.W.2d 600 (2017).
3
Id.- 83 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76determinations of custody, child support or a modification
of an existing order of support, property division, alimony,
and attorney fees; these determinations, however, are initially
entrusted to the trial court’s discretion and will normally be
affirmed absent an abuse of that discretion.4
[4] A judicial abuse of discretion exists if the 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.5
[5] In a review de novo on the record, the court is required
to make independent factual determinations based upon the
record, and the court reaches its own independent conclusions
with respect to the matters at issue. When evidence is in con-
flict, 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.6
IV. ANALYSIS
1. Brandon’s Assignments of Error
R egarding Paternity and Child
Support A re Without Merit
Brandon’s first six assignments of error concern the issues
of paternity, child support, and other determinations regarding
Ariana. Brandon contends the court erred in finding Ariana
to be his child and making various determinations regarding
Ariana as a child of the parties. He also contends that the
court violated his due process rights by adopting the order
of support in case No. CI 14-12, rather than making its own
independent conclusions, and preventing him from presenting
evidence to challenge Jessica’s case or present his own case.
Finally, Brandon contends that the court violated Neb. Ct. R.
4
See, Marshall v. Marshall, 298 Neb. 1, 902 N.W.2d 223 (2017); Incontro
v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009).
5
Id.6
Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).
- 84 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76§ 4-203 (rev. 2011) by failing to attach a Nebraska child sup-
port calculation worksheet to the decree.
(a) Court Did Not Abuse Its Discretion
in Finding Ariana to Be Child of
Marriage or Violate Brandon’s
Due Process Rights
Brandon asserts that the evidence shows that he is not
Ariana’s father and that nothing in the record supports a find-
ing that he was a legal parent of her, despite Jessica’s false
accusation in her complaint.
[6] At common law, the father of a child born out of wedlock
had no legal obligation to support the child; that common-law
rule was changed by legislative action.7 Actions to determine
paternity are governed by Neb. Rev. Stat. §§ 43-1401 through
43-1418 (Reissue 2016). Paternity proceedings are purely stat-
utory, and such statutes must be strictly construed because they
modify the common law.8
Despite Brandon’s assertion, however, the order of support
in case No. CI 14-12 was entered into evidence and contained
a determination of paternity that, if res judicata on the issue,
would have precluded the trial court in this case from making
an independent determination on the issue of paternity.
We have not previously considered whether an order of sup-
port under Neb. Rev. Stat. § 43-512.04 (Reissue 2008) is res
judicata on the issue of paternity. However, we have repeat-
edly held that any dissolution decree that orders child support
is res judicata on the issue of paternity.9
[7-10] Claim preclusion bars relitigation of any right, fact,
or matter directly addressed or necessarily included in a
­former adjudication if (1) the former judgment was rendered
by a court of competent jurisdiction, (2) the former judgment
7
State on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257 (2014),
citing Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999).
8
Id.9
Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).
- 85 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76was a final judgment, (3) the former judgment was on the mer-
its, and (4) the same parties or their privies were involved in
both actions.10 The doctrine bars relitigation not only of those
matters actually litigated, but also of those matters which
might have been litigated in the prior action.11 The doctrine
rests on the necessity to terminate litigation and on the belief
that a person should not be vexed twice for the same cause.12
Whether either preclusion doctrine applies in any given case is
necessarily fact dependent.13
As a threshold matter, we must consider whether Ariana’s
paternity was directly addressed or necessarily included in the
order of support in case No. CI 14-12.
[11,12] The issue of paternity was directly addressed in case
No. CI 14-12 because the court’s order found that Brandon
acknowledged paternity and ruled that he was the legal father
of Ariana. Further, Nebraska’s statutes do not impose a child
support obligation upon any parties except the legally deter-
mined parents of a child.14 “‘A fundamental fact necessary
to sustain an order of child support is paternity by the man
judicially obligated to pay such support.’”15 Thus, any order
imposing an obligation of child support is necessarily a legal
determination of paternity.16
Next, we must apply the four-factor test to determine if the
order of support was res judicata. First, we consider whether
the judgment in case No. CI 14-12 was rendered by a court of
competent jurisdiction.
10
See In re Interest of Noah B., 295 Neb. 764, 891 N.W.2d 109 (2017). See,
also, DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994).
11
In re Interest of Noah B., supra note 10.
12
Id.
13
Id.
14
See Stacy M. v. Jason M., 290 Neb. 141, 858 N.W.2d 852 (2015).
15
Cross, supra note 7, 257 Neb. at 781, 600 N.W.2d at 784, quoting Younkin
v. Younkin, 221 Neb. 134, 375 N.W.2d 894 (1985).
16
See Stacy M., supra note 14.
- 86 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76The order of support does not make clear whether the State
of Nebraska initially filed the action as a paternity suit, under
§ 43-1411, or if it petitioned for child support directly, under
§ 43-512.04.
Under § 43-1411, a paternity action “may be instituted, in
the court of the district where the child is domiciled or found
. . . by . . . the state, either during pregnancy or within eighteen
years after the child’s birth.” Further, § 43-1412 provides:
(1) . . . .
If it is determined in this proceeding that the alleged
father is actually the father of the child, a judgment shall
be entered declaring the alleged father to be the father of
the child.
....
(3) If a judgment is entered under this section declaring
the alleged father to be the father of the child, the court
shall retain jurisdiction of the cause and enter such order
of support . . . which the court in its discretion deems
appropriate to be paid by the father, as may be proper
under the procedure and in the manner specified in sec-
tion 43-512.04.
Section 43-512.04(1) provides that “[a]n action for child
support or medical support may be brought separate and apart
from any action for dissolution of marriage. The complaint
initiating the action shall be filed with the clerk of the district
court and may be heard by the county court or the district
court . . . .”
As set out in § 43-1412(1), “[t]he alleged father and the
mother shall be competent to testify.” But the testimony of
the party that initiated the proceedings “shall not alone be suf-
ficient to support a verdict or finding that the alleged father is
actually the father.”17
The order in case No. CI 14-12 states that the matter was
submitted upon the oral stipulation of the parties. Further,
17
§ 43-1412(1).
- 87 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76nothing in the record suggests that either party contested the
court’s subject matter jurisdiction over the issue of paternity
or the court’s personal jurisdiction over the parties. As a
result, under either statute, the Pawnee County District Court
was a court of competent jurisdiction to determine the issue
of paternity.
[13] Second, we consider whether the paternity determina-
tion in case No. CI 14-12 was a final judgment. In DeVaux
v. DeVaux,18 we held that a paternity determination contained
in a dissolution decree was a final judgment. We reasoned, in
part, that parties have a full and fair opportunity to litigate the
issue of paternity in such proceedings and that “unlike alimony,
child support, custody, or ground for divorce, paternity is not
subject to change.”19 We find both of these reasonings to apply
to paternity determinations under §§ 43-1411 and 43-512.04
with equal force. Thus, the paternity determination in case No.
CI 14-12 was a final judgment.
[14,15] Third, we must determine whether the paternity
judgment decree was a judgment on the merits. For purposes
of claim preclusion, a judgment on the merits is one which is
based on legal rights, as distinguished from mere matters of
practice, procedure, jurisdiction, or form.20 A consent decree
or consent judgment operates on the merits and is as final and
binding upon the parties as a decree rendered after a hearing
on the merits.21 We see no reason why this principle would
not extend to stipulated judgments on the merits. Accordingly,
while case No. CI 14-12 was submitted to the court by stipula-
tion, it was a determination on the merits of the case, rather
than a judgment on mere technical grounds.
18
DeVaux, supra note 10.
19
Id. at 618, 514 N.W.2d at 645-46, citing Dept. of Human Services v.
Lowatchie, 569 A.2d 197 (Me. 1990).
20
See DeVaux, supra note 10.
21
Blazek v. City of Omaha, 232 Neb. 562, 441 N.W.2d 205 (1989). See, also,
DeVaux, supra note 10.
- 88 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76Fourth, there is no dispute that both Brandon and Jessica
were involved in case No. CI 14-12. While the action was
initiated by the State and Jessica was a third-party defendant,
the order of support states that both Brandon and Jessica were
represented by counsel who appeared before the court.
Accordingly, we find that the determination of paternity over
Ariana in the order of support in case No. CI 14-12 was res
judicata on Brandon’s paternity and that therefore, the parties
were precluded from relitigating the issue here.
Further, neither party appealed the final judgment in case
No. CI 14-12 or claims that the judgment was void for want
of jurisdiction; so, the judgment is not subject to collateral
attack by relitigation in this case, absent compliance with
§ 43-1412.01 or a motion to vacate or modify the decree
in light of fraud, mistake, or as set forth in Neb. Rev. Stat.
§ 25-2001 (Reissue 2016).22 When a judgment is attacked in
a way other than by proceeding in the original action to have
it vacated, reversed, or modified, or by a proceeding in equity
to prevent its enforcement, the attack is a collateral attack.23
Even if erroneous, a judgment is not subject to collateral attack
unless it is void, such as would be the case where a judgment
is entered without jurisdiction over the person or subject mat-
ter.24 Therefore, the court did not abuse its discretion in finding
that Brandon was Ariana’s legal father.
In addition, there is no concern regarding Brandon’s due
process on the issues because the court was not able to reliti-
gate the paternity determination, absent Brandon’s motioning
the court to do so on specific bases not present in the record.
Even with the prior determination that Brandon was
Ariana’s father, we note that in 2008, “the Legislature enacted
§ 43-1412.01, which overrides res judicata principles and
22
See Alisha C., supra note 9.
23
Bartlett v. Dawes Cty. Bd. of Equal., 259 Neb. 954, 613 N.W.2d 810(2000).
24
State v. Yelli, 247 Neb. 785, 530 N.W.2d 250 (1995).
- 89 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76allows, in limited circumstances, an adjudicated father to
disestablish a prior, final paternity determination based on
genetic evidence that the adjudicated father is not the biologi-
cal father.”25 We have held that § 43-1412.01 “gives the court
discretion to determine whether disestablishment of paternity
is appropriate in light of both the adjudicated father’s inter-
ests and the best interests of the child.”26
Section 43-1412.01 provides, in relevant part, the
following:
An individual may file a complaint for relief and the
court may set aside a final judgment, court order, admin-
istrative order, obligation to pay child support, or any
other legal determination of paternity if a scientifically
reliable genetic test . . . establishes the exclusion of the
individual named as a father in the legal determination.
The court shall appoint a guardian ad litem to represent
the interest of the child.
While Brandon requested genetic testing of Ariana in his
counterclaim, he did not request the court to disestablish
the final determination of paternity in case No. CI 14-12.
Additionally, while he cites to Jessica’s testimony that he
is not Ariana’s biological father, he failed to enter into evi-
dence the results of any genetic testing that may have been
performed in this case. Further, the record does not reflect
that a guardian ad litem was appointed to represent Ariana
or that the court made a determination regarding whether
a disestablishment of paternity was appropriate. Therefore,
assuming without deciding that the disestablishment of pater-
nity could have been litigated in this matter, as opposed to in
case No. CI 14-12, the court did not abuse its discretion in
not ruling on whether the disestablishment of paternity was
appropriate under § 43-1412.01. As a result, there is no merit
25
Stacy M., supra note 14, 290 Neb. at 146, 858 N.W.2d at 857.
26
Id. at 146-47, 858 N.W.2d at 857.
- 90 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76to Brandon’s assignments of error regarding finding Ariana to
be a child of the parties.
(b) Court Properly Considered Support,
Custody, Parenting Time, Expenses,
and Income Tax Deductions
for Ariana
Brandon asserts that ordering him to provide support for
Ariana and determining custody, parenting time, expenses, and
income tax deductions regarding her were erroneous because
he has no rights or duties regarding her.
Because Brandon’s argument that the court erred in deter-
mining that he was Ariana’s legal father was without merit, the
assignment of error regarding child custody, parenting time,
child support, income tax deductions, and other expenses is
without merit. Neb. Rev. Stat. § 42-364 (Reissue 2016) grants
the court the authority to determine child custody, parenting
time, and child support. Additionally, § 43-1402 states that
“[t]he father of a child whose paternity is established . . . shall
be liable for its support to the same extent and in the same
manner as the father of a child born in lawful wedlock is liable
for its support.”
[16-18] Further, under Nebraska law, a state court having
jurisdiction in a dissolution action has the power to allocate
tax dependency exemptions as part of the dissolution decree.27
A tax dependency exemption is nearly identical in nature to
an award of child support or alimony.28 It has also been held
that childcare costs may be awarded as an incident to child
support.29 Therefore, these assignments of error are with-
out merit.
27
Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000). See,
also, Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005).
28
Emery, supra note 27.
29
Cross, supra note 7.
- 91 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76(c) Court Did Not Abuse Its Discretion
by Declining to Modify Existing
Support Order
In Robbins v. Robbins,30 we held that in a dissolution action
brought under the provisions of Neb. Rev. Stat. §§ 42-347 to
42-379 (Reissue 1984), a court had jurisdiction to make an
independent evaluation as to child support under § 42-351,
but that the court must take into account and give effect to an
earlier child support order entered under § 43-512.04 (Reissue
1984). An action for child support, separate from a dissolution
action, is governed by § 43-512.04 (Reissue 2008).31
At the time we decided Robbins, § 42-364 (Reissue 1984),
which governed dissolution proceedings, did not require a
court to determine child support in any circumstances. Since
Robbins, the Nebraska Legislature has amended § 42-364(1)(b)
(Reissue 2016) to provide, in relevant part, that “[t]he decree in
an action involving the custody of a minor child shall include
the determination of . . . child support.”32
[19-21] In determining the meaning of a statute, the appli-
cable rule is that when the Legislature enacts a law affecting
an area which is already the subject of other statutes, it is
presumed that it did so with full knowledge of the preexisting
legislation and the decisions of the Supreme Court constru-
ing and applying that legislation.33 Statutory language is to be
given its plain and ordinary meaning, and an appellate court
will not resort to interpretation to ascertain the meaning of
statutory words which are plain, direct, and unambiguous.34 In
reading a statute, a court must determine and give effect to the
30
Robbins v. Robbins, 219 Neb. 151, 361 N.W.2d 519 (1985).
31
See § 43-512.04(1). See, also, § 43-1412(3).
32
See 2007 Neb. Laws, L.B. 554, § 32.
33
Pittman v. Western Engineering Co., 283 Neb. 913, 813 N.W.2d 487(2012).
34
State v. Beitel, 296 Neb. 781, 895 N.W.2d 710 (2017).
- 92 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76purpose and intent of the Legislature as ascertained from the
entire language of the statute considered in its plain, ordinary,
and popular sense.35
[22] While the plain language of § 42-364 now requires a
court to include a determination of child support in its dissolu-
tion decree when the action involves custody of a minor child,
it does not require the court to make an independent calcula-
tion of child support. Because the Legislature was presumed
to have had full knowledge of Neb. Rev. Stat. § 43-512.05(Reissue 2016) and our decision in Robbins when it amended
§ 42-364, we must interpret § 42-364 in light of our holding
in Robbins.36 Therefore, we interpret § 42-364 to authorize a
court to determine that an existing support order may remain in
effect after the court has considered the current earning capac-
ity of each parent and the child support guidelines provided by
the Supreme Court.
Here, the order of support in case No. CI 14-12 was already
in effect when the court ruled on the parties’ dissolution. While
the court had jurisdiction to modify the order in its decree,
under § 42-364, the court determined that a modification of
the existing support order was not appropriate in this case, as
discussed more fully in the next section. Therefore, Brandon’s
argument that the court cannot rely on a previous order of sup-
port is without merit.
(d) Brandon’s Due Process Rights Were
Not Violated by Court’s Determination
That Modification of Existing Order
of Support Was Not Warranted
Brandon contends that the court denied him due process
by preventing him from presenting evidence regarding child
support and his paternity of Ariana. He asserts that the court’s
adoption of the support order in case No. CI 14-12, at
35
Id.
36
See Robbins, supra note 30.
- 93 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76Jessica’s request, precluded the court from even considering
the matters.
[23-25] Due process principles protect individuals from arbi-
trary deprivation of life, liberty, or property without due proc­
ess of law.37 Due process does not guarantee an individual any
particular form of state procedure; instead, the requirements of
due process are satisfied if a person has reasonable notice and
an opportunity to be heard appropriate to the nature of the pro-
ceeding and the character of the rights which might be affected
by it.38 The determination of whether procedures afforded an
individual comport with constitutional requirements for proce-
dural due process presents a question of law.39
Brandon argues that the evidence of both his change in
income and his subsequently born child shows that the court
abused its discretion in not modifying the order.
[26,27] Child support orders are always subject to review
and modification.40 A party seeking to modify a child support
order must show a material 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.41
[28,29] Among the factors to be considered in determining
whether a material change of circumstances has occurred are
changes in the financial position of the parent obligated to
pay support, the needs of the children for whom support is
paid, good or bad faith motive of the obligated parent in sus-
taining a reduction in income, and whether the change is tem-
porary or permanent.42 Further, the Nebraska Child Support
Guidelines state that “[i]f applicable, earning capacity may
37
Bryan M. v. Anne B., 292 Neb. 725, 874 N.W.2d 824 (2016).
38
Id.39
Id.40
Incontro, supra note 4.
41
State on behalf of B.M., supra note 7.
42
Id.
- 94 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76be considered in lieu of a parent’s actual, present income and
may include factors such as work history, education, occu-
pational skills, and job opportunities.”43 But, the paramount
concern in child support cases, whether in the original pro-
ceeding or subsequent modification, remains the best interests
of the child.44
[30] Accordingly, it is invariably concluded that a reduc-
tion in child support is not warranted when an obligor parent’s
financial position diminishes due to his or her own voluntary
wastage or dissipation of his or her talents and assets and a
reduction in child support would seriously impair the needs
of the children.45 The party seeking the modification has the
burden to produce sufficient proof that a material change of
circumstances has occurred that warrants a modification and
that the best interests of the child are served thereby.46
We note that no party sought a modification of the support
order in case No. CI 14-12. As Brandon argues, Jessica asked
the court to continue the support ordered in the preceding
case. While Brandon filed a counterclaim, he did not request
a reduction of the prior support order. However, because
Brandon presented evidence seeking a reduction and the court
did consider whether to modify the support order, we will
review its decision.
First, we consider Brandon’s argument that he was entitled
to a reduction in his support obligation based on a child
that was born to him during the proceedings of the dissolu-
tion action. Neb. Ct. R. § 4-205(E) (rev. 2016) provides that
“[s]ubject to [Neb. Ct. R.] § 4-220, credit may be given for
biological or adopted children for whom the obligor provides
regular support.” Neb. Ct. R. 4-220, however, limits the discre-
tion to provide the credit, as follows:
43
Neb. Ct. R. § 4-204 (rev. 2016).
44
State on behalf of B.M., supra note 7.
45
Incontro, supra note 4.
46
See State on behalf of B.M., supra note 7.
- 95 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76An 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.
Accordingly, the child support guidelines allow the obligor
of an existing support award a deduction for an obligation to
support a subsequent child only when the obligee seeks an
upward modification of support.47 Therefore, because Jessica
did not seek an upward modification of support, Brandon was
not entitled to a reduction of his support obligation.
Second, we address whether the court erred in failing to
find that Brandon proved that there was a material change of
circumstances warranting a modification of the support order.
The court heard testimony from both parties on their finan-
cial circumstances before making its ruling not to modify the
support order. Jessica testified that her income had increased
by approximately $50 a month, to $1,304 a month, from
the existing order to the time of trial. Brandon testified that
his monthly income was about $2,600 a month until he was
fired for missing work due to medical issues, his monthly
income at the time of trial was about $2,000 a month from
working a seasonal carpentry job and as a server, and he is
actively seeking employment for at least $2,600 a month and
has turned down job offers for $13 an hour, or about $2,180
a month.
However, Brandon did not supplement his discovery or
submit evidence supporting his reason for the termination of
employment or verifying his current income. The child support
calculation worksheet itself states that the court will “require
copies of [the] last 2 years’ tax returns to verify ‘total income’
47
Schwarz v. Schwarz, 289 Neb. 960, 857 N.W.2d 802 (2015).
- 96 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76figures and copies of present wage stubs to verify the pattern
of present wage earnings.”48
While Brandon testified that his financial position had
changed and that it was not the result of bad faith, he did
not present any supporting evidence. Further, there was no
evidence that the needs of the children had changed, that
Brandon’s change in income was permanent, or that he suffered
any decrease in earning capacity, and the evidence showed
that Jessica’s financial position had changed only negligibly.
Accordingly, we cannot say that the court abused its discretion
in finding that Brandon was not entitled to a modification of
the existing support order.
Third, because the court provided Brandon the opportunity
to present evidence relevant to whether a material change in
circumstances had occurred, we find his argument that he was
denied due process on the issue to be without merit.
(e) Summary Remand of Appeal
Is Not Required
Brandon contends that by failing to attach a Nebraska child
support calculation worksheet to the decree, the court violated
§ 4-203 of the child support guidelines. Section 4-203 provides
that “[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.”
In Rutherford v. Rutherford,49 we considered an appeal
from an order modifying the father’s child support obligation.
In that case, there was no child support worksheet prepared
by the trial court in the record and the court’s order merely
included a calculation of the parties’ monthly net income and
stated that it extrapolated the income figures and used the child
support guidelines to determine the support obligations.
48
Neb. Ct. R. ch. 4, art. 2, worksheet 1, n.1 (rev. 2016). See, also, Henderson
v. Henderson, 264 Neb. 916, 653 N.W.2d 226 (2002).
49
Rutherford v. Rutherford, 277 Neb. 301, 761 N.W.2d 922 (2009).
- 97 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76We held that the court’s failure to complete a worksheet as
to the method it used to determine the modification of child
support was an abuse of discretion and remanded the cause for
the court to complete the applicable worksheet. We reasoned,
in part, that “because there is no worksheet in the record, we
do not know why the court awarded the amount of support it
did, except that the court extrapolated the amount set forth in
the guidelines.”50
Further, we held:
Henceforth, if a trial court fails to prepare the appli-
cable worksheets, the parties are required to request that
such worksheet be included in the trial court’s order.
Orders for child support or modification which do not
contain such worksheets will on appeal be summarily
remanded to the trial court so that it can prepare the
worksheets as required by the guidelines.51
In this matter, however, the decree ordered Brandon to
provide child support for the minor children “pursuant to the
current Order of the District Court of Pawnee County in [case
No. CI 14-12].” In doing so, the court did not adopt a new
child support worksheet or calculations and merely determined
that the existing child support order from the paternity action
should remain the operative support obligation.
Further, the determination in the dissolution decree—that
Brandon shall provide support pursuant to the order in case
No. CI 14-12—was not itself an order of support or modifica-
tion requiring the completion of a worksheet. As stated above,
in Rutherford, we reasoned that an order imposing or modi-
fying child support shall include any applicable worksheets
with the trial court’s order so that on appeal we know why the
court awarded the amount of support it did. As the Nebraska
Court of Appeals has explained, “[p]erhaps the most obvious
purpose of this requirement is to ensure that the appellate
50
Id. at 305, 761 N.W.2d at 925-26.
51
Id. at 308, 761 N.W.2d at 927 (emphasis supplied).
- 98 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76courts are not left to speculate about the trial court’s conclu-
sions. . . . These worksheets show the parties and the appellate
courts that the trial court has ‘“done the math.”’”52
Here, the record indicates that the prior support order and its
accompanying child support worksheet were received into evi-
dence as an exhibit. That exhibit showed the calculations used
in case No. CI 14-12 to determine Brandon’s child support
obligation. The existence in our record of the prior calcula-
tion, coupled with the fact that the court did not impose a new
child support obligation or modify the previous child support
obligation, renders our holding in Rutherford inapplicable here.
Therefore, this assignment of error is without merit.
We note that while Rutherford is not applicable here, there
may be circumstances where a child support worksheet is
required to show the court’s findings that a new support order
should not be imposed or a previous support order should not
be modified. In addition, it is important that the trial court
make clear, as it did here, that no additional child support
order is being implemented and that the previous order remains
the operative support obligation, so as to simplify the child
support collection process.
2. Bank Debt Was M arital Debt
Brandon contends that it was inequitable to order him to
pay one-half of the bank debt, or $411.97. He argues that the
collection notice, dated September 18, 2014, and Jessica’s
testimony that it was marital were insufficient because there
was no evidence showing what the debt was for or when it
was incurred.
Under Nebraska’s divorce statutes, “[t]he purpose of a
property division is to distribute the marital assets equitably
between the parties.”53 The ultimate test in determining the
52
Molina v. Salgado-Bustamante, 21 Neb. App. 75, 82-83, 837 N.W.2d 553,
559 (2013).
53
Neb. Rev. Stat. § 42-365 (Reissue 2016).
- 99 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76appropriateness of the division of property is fairness and rea-
sonableness as determined by the facts of each case.54
[31] Under § 42-365, the equitable division of property is
a three-step process. The first step is to classify the parties’
property as marital or nonmarital. The second step is to value
the marital assets and marital liabilities of the parties. The third
step is to calculate and divide the net marital estate between
the parties in accordance with the principles contained in
§ 42-365.55
[32,33] Marital debt includes only those obligations incurred
during the marriage for the joint benefit of the parties.56 The
burden to show that a debt is nonmarital is on the party making
that assertion.57
At the hearing, Brandon’s attorney questioned Jessica about
the debt. Shortly after Brandon’s attorney began the question-
ing, however, Jessica’s attorney objected to a question and,
without ruling, the court directed Brandon’s attorney to “move
on.” Brandon’s attorney neither objected to the court’s direc-
tion nor made an argument as to why he needed to elicit addi-
tional evidence on the subject.
Brandon generally assigned error to the court’s not per-
mitting him to respond to Jessica’s presentation of evi-
dence. However, an issue not presented to or decided by the
trial court is not appropriate for consideration on appeal.58
Accordingly, we will not consider whether the court erred in
preventing Brandon from eliciting further evidence on this
issue, because Brandon’s attorney did not adequately present
the issue to the trial court. Instead, we will consider only the
record before us.
54
Bergmeier v. Bergmeier, 296 Neb. 440, 894 N.W.2d 266 (2017).
55
See Osantowski, supra note 6.
56
Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006).
57
Id.58
Wayne L. Ryan Revocable Trust v. Ryan, 297 Neb. 761, 901 N.W.2d 671(2017).
- 100 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76Jessica testified that the bank debt was incurred while the
parties were living together. Brandon presented no evidence
that the debt was not incurred before the parties separated
or that it was not for the parties’ joint benefit. Accordingly,
Brandon failed to satisfy his burden to show that this debt
was nonmarital. Therefore, this assignment of error is with-
out merit.
3. District Court Did Not A buse
Its Discretion in Awarding
Jessica Attorney Fees
Brandon contends that the court’s award of $3,000 for
attorney fees to Jessica was an abuse of discretion. He argues
that under the relevant considerations for granting attorney
fees, the circumstances of this case did not warrant making an
award—in light of the short duration of the parties’ marriage,
the simplicity of issues in the dissolution, and both parties’ lack
of financial resources.
[34,35] In awarding attorney fees in a dissolution action,
a court should consider the nature of the case, the amount
involved in the controversy, the services actually performed,
the results obtained, the length of time required for prepara-
tion and presentation of the case, the novelty and difficulty
of the questions raised, and the customary charges of the bar
for similar services.59 Additionally, courts have the inherent
power to award attorney fees in certain unusual circumstances
amounting to conduct during the course of litigation which
is vexatious, unfounded, and dilatory, such that it amounts to
bad faith.60
While we agree that the issues involved in the dissolution
were not overly complex and the marital estate was minus-
cule, the proceedings lasted nearly 2 years and the attorney
fees Jessica incurred were consistent with the proceedings.
59
Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015).
60
See White, supra note 2.
- 101 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76Further, the court’s partial granting of attorney fees was ratio-
nally related to the additional expenses incurred regarding
the motion to compel and motion for sanctions filed against
Brandon for failing to respond to Jessica’s discovery and the
motion to withdrawal of Brandon’s attorney shortly before the
scheduled final hearing. Therefore, we conclude that the court
did not abuse its discretion by ordering Brandon to pay $3,000
of attorney fees.
4. R emaining Assignments
of Error
[36] Brandon also generally assigns error to the court’s
decision as an abuse of discretion and incorrect as a matter of
law. Concerning Brandon’s specific assignments of error, these
assignments are without merit. In regard to any other rulings
included in the court’s order, we do not consider assignments
of error that are not both specifically assigned and argued. To
be considered by an appellate court, an alleged error must be
both specifically assigned and specifically argued in the brief
of the party asserting the error.61
V. CONCLUSION
In the order of support entered by the Pawnee County
District Court, in case No. CI 14-12, Brandon was ruled to
be the legal father of Ariana and ordered to support her. The
determination of paternity in case No. CI 14-12 was res judi-
cata on the issue of paternity and could not be challenged in
this case, absent Brandon’s pleading or motion for specific
relief. Accordingly, the court’s rulings regarding Ariana were
all within its authority in entering the dissolution decree.
Further, while Brandon presented evidence that he was
entitled to a modification of the order of support, the court
did not abuse its discretion in considering the support order
in case No. CI 14-12 and determining that Brandon had not
61
Waldron v. Roark, 298 Neb. 26, 902 N.W.2d 204 (2017).
- 102 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
FETHERKILE v. FETHERKILE
Cite as 299 Neb. 76proved that a material change in circumstances had occurred.
Because the court did not modify the existing order of sup-
port, it was not required to attach a child support calculation
worksheet to the decree.
We also conclude that the court did not abuse its discretion
in distributing the marital debts or awarding Jessica attorney
fees. Finally, the record does not show that Brandon’s due
proc­ess rights were violated regarding any of the issues on
appeal. Therefore, we affirm.
A ffirmed.
Wright, J., not participating.