House v. House

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/21/2017 09:08 AM CDT
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HOUSE v. HOUSE
Cite as 24 Neb. Ct. App. 595
Douglas House, appellant, v.
Michele House, appellee.
___ N.W.2d ___
Filed March 21, 2017. No. A-15-1132.
1. Contempt: Appeal and Error. In a civil contempt proceeding where
a party seeks remedial relief for an alleged violation of a court order,
an appellate court employs a three-part standard of review in which (1)
the trial court’s resolution of issues of law is reviewed de novo, (2) the
trial court’s factual findings are reviewed for clear error, and (3) the trial
court’s determinations of whether a party is in contempt and of the sanc-
tion to be imposed are reviewed for abuse of discretion.
2. Child Support. Neb. Rev. Stat. § 43-512 (Supp. 2015) details the proce-
dure by which any dependent child, or any relative or eligible caretaker
of such dependent child, may file a written application for financial
assistance to the Department of Health and Human Services.
3. Child Support: Prosecuting Attorneys. Pursuant to Neb. Rev. Stat.
§ 43-512(2) (Supp. 2015), following the application for financial assist­
ance, the Department of Health and Human Services investigates to
see if the child has a parent or stepparent who is able to contribute to
the support of such child and has failed to do so; upon such a finding,
a copy of the finding of such investigation and a copy of the appli-
cation shall immediately be filed with the county attorney or autho-
rized attorney.
4. Actions: Child Support: Prosecuting Attorneys. Pursuant to Neb. Rev.
Stat. § 43-512.01 (Reissue 2016), it is the duty of the county attorney
or authorized attorney to immediately take action against the nonsup-
porting parent and initiate a child support enforcement action. If the
county attorney initiates an action, he or she shall file either a criminal
complaint for nonsupport under Neb. Rev. Stat. § 28-706 (Reissue 2016)
or a civil complaint against the nonsupporting parent or stepparent under
Neb. Rev. Stat. § 43-512.03 (Reissue 2016).
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5. ____: ____: ____. Pursuant to Neb. Rev. Stat. § 43-512.03(4) (Reissue
2016), the State of Nebraska shall be a real party in interest in any
action brought by or intervened in by a county attorney to enforce an
order for child support.
6. ____: ____: ____. Pursuant to Neb. Rev. Stat. § 43-512.03(1)(c)
(Reissue 2016), the county attorney or authorized attorney shall enforce
child support orders by civil actions or administrative actions, citing the
defendant for contempt, or filing a criminal complaint.
7. Statutes: Appeal and Error. An appellate court will try to avoid, if pos-
sible, a statutory construction that would lead to an absurd result.
8. Jurisdiction: Words and Phrases. Subject matter jurisdiction deals
with a court’s ability to hear a case; it is the power of a tribunal to
hear and determine a case of the general class or category to which the
proceedings in question belong and to deal with the general subject mat-
ter involved.
9. Courts: Jurisdiction: Contempt. A court that has jurisdiction to issue
an order also has the power to enforce it; the power to punish for con-
tempt is incident to every judicial tribune.
10. Child Support: Federal Acts: Evidence. Pursuant to Neb. Rev. Stat.
§ 43-3342.01 (Reissue 2016), a true copy of the record of payments, bal-
ances, and arrearages maintained for services received under title IV-D
of the federal Social Security Act is prima facie evidence, without fur-
ther proof or foundation, of the balance of any amount of support order
payments that are in arrears and of all payments made and disbursed to
the person or agency to whom the support order payment is to be made;
such evidence shall be considered to be satisfactorily authenticated, shall
be admitted as prima facie evidence of the transactions shown in such
evidence, and is rebuttable only by a specific evidentiary showing to
the contrary.
11. Child Support: Contempt: Presumptions: Proof. Pursuant to Neb.
Rev. Stat. § 42-358(3) (Reissue 2016), a rebuttable presumption of
contempt shall be established if a prima facie showing is made that the
court-ordered child or spousal support is delinquent.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Douglas House, pro se.
Joe Kelly, Lancaster County Attorney, and Jordan M. Talsma
for appellee.
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R iedmann and Bishop, Judges, and McCormack, Retired
Justice.
Bishop, Judge.
Douglas House appeals from an order of the district court
for Lancaster County that found him in contempt of court for
failure to pay child support. We affirm.
BACKGROUND
Douglas and Michele House were married in 2007 and
had one child, born that same year. The parties divorced
in June 2012. Pursuant to the parties’ parenting plan which
was approved and adopted in the divorce decree, Michele
received physical custody of the parties’ minor child, subject
to Douglas’ reasonable rights of parenting time. Douglas was
ordered to pay child support in the amount of $346 per month,
commencing on July 1.
On May 11, 2015, a deputy Lancaster County Attorney
filed a “Motion for an Order to Show Cause and to Appear,”
pursuant to Neb. Rev. Stat. § 43-512.03 (Reissue 2016). The
motion alleged that Douglas was ordered to pay child sup-
port in the amount of $346 per month, but according to the
Department of Health and Human Services (DHHS) payment
history report, he was delinquent “in an amount greater or
equal to the support due and payable for a one month period
of time.” The deputy Lancaster County Attorney asked the
court to order Douglas to show cause as to why he should not
be held in contempt of court for failure to comply with the
order directing him to pay child support. An order to show
cause was entered on May 12, directing Douglas to appear
on June 18 and show cause why he should not be held in
contempt; he was ordered to bring income tax returns for the
past 3 years and his last three wage statements. The court also
appointed the Lancaster County Attorney to commence con-
tempt proceedings against Douglas. For reasons not apparent
from our record, the show cause/contempt hearing was not
held on June 18.
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A hearing on the show cause/contempt action was held on
November 18, 2015. The deputy county attorney appeared
on behalf of the State, and shall be referred to as the “State”
hereafter. Douglas appeared pro se. For his opening statement,
Douglas said he wanted to “make a statement as to [his] indi-
gence . . . and [his] inability to pay at this time, but, other than
that, [he would] let the prosecution go forward.”
The State offered into evidence exhibit 1, a certified DHHS
payment history report dated November 9, 2015. Douglas
objected, arguing that it “doesn’t have a wet ink signature, it’s
not sworn to that this is accurate and correct.” The court and
the State pointed out that the report had a certification stamp
on it, and the State informed Douglas that “it’s an electronic
signature.” Douglas responded, “Well, Your Honor, I really
don’t know if any person has ever really signed this thing, as
far as an electronic signature. Shouldn’t a — anything be —
that’s entered on the court record be a wet ink signature?” The
court said, “This is sufficient for a court record,” then received
exhibit 1 and overruled Douglas’ objection. Exhibit 1 showed
that as of November 9, Douglas owed a child support balance
of $4,112.94 (he had made no child support payments since
November 2014). After offering exhibit 1 into evidence and
having it received, the State rested.
After being sworn in, Douglas said that in order for the State
to bring a claim under § 43-512.03, there has to be a “request”
assigning power to be a real party in interest to the county
attorney, “[a]nd the record is absent of a request” from DHHS
or any other entity that is “authorized.” Douglas argued, “For
the county attorney to have that authority, he needs to bring
forth that request. He has no authority right now . . . . So, I
object to this entire proceeding, this claim being brought forth
without powers assigned.” The State responded that DHHS had
requested the claim be brought to enforce the child support
order because the recipient of the child support was receiv-
ing public assistance benefits. The State acknowledged that
DHHS’ request had not been made part of the record, but the
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State was not aware of any requirement that the request be
made part of the record. The court concluded that the State had
complied with the statute.
The State then argued that under Neb. Rev. Stat. § 42-358
(Reissue 2016), there is a rebuttable presumption of contempt
upon a prima facie showing that the defendant is behind on
his child support. When asked if he had anything to rebut the
evidence that he was behind in his child support payments,
Douglas continued to object to the State’s authority to bring the
claim. Douglas then said:
I am indigent. I’ve got, publicly declared, two poverty
affidavits on the court record. I’m currently in the appel-
late court with a juvenile case. The custody of my daugh-
ter is up in the air. It — the juvenile case has been — my
brief has just been accepted.
I’m also — currently, the District Court is going to
receive an appeal in which I was denied a substantial
right during a special proceeding. I appealed that, also,
Your Honor. And, you know, so my poverty affidavits in
itself speak for themselves. I — I — I cannot pay right
now. That’s just — it’s that simple. I’m indigent. I am
under — I have nothing.
The district court informed Douglas that there was a rebut-
table presumption that he was in willful contempt of court and
that based on the evidence, it found him in willful contempt.
Douglas continued to argue that it was an impossibility for him
to pay at that time.
In its order filed on November 18, 2015, the district court
found Douglas to be in willful contempt of court. The court
ordered Douglas to serve 30 days in jail, but suspended
the sentence as long as he paid $346 per month on current
child support and $50 per month on arrearages commenc-
ing January 1, 2016. If Douglas complied with the payment
schedule for 24 months, he would be purged of contempt
and the sentence would be deemed null and void. If Douglas
failed to comply, he would be imprisoned pursuant to his
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sentence and would be released and purged of contempt upon
payment of the lesser of $3,500 or all arrearages then due
and owing.
On December 1, 2015, Douglas filed a “Motion by
Affidavit to Modify Judgment,” asking the district court
to “correct [its] errors” from the November 18 show cause
hearing. Douglas claimed the following errors: The State did
not have standing, the “‘payment history’” was not a “valid
bill of costs for child support without anyone attesting to it
or signing off on it,” and his poverty was not willful con-
tempt of court. On December 3, the district court overruled
Douglas’ motion.
Douglas timely appeals the district court’s order.
ASSIGNMENTS OF ERROR
Douglas assigns, restated: (1) The State did not have stand-
ing to enforce a child support order without evidence of proper
written authority; (2) the district court did not have subject
matter jurisdiction in this action, since there was already an
existing support order; (3) the district court erred when it
admitted into evidence the child support payment history, “a
wholly defective written instrument”; (4) the district court
erred when it modified an existing child support order; and (5)
the district court erred when it found Douglas to be in willful
contempt despite his impoverished status.
STANDARD OF REVIEW
[1] In a civil contempt proceeding where a party seeks reme-
dial relief for an alleged violation of a court order, an appellate
court employs a three-part standard of review in which (1) the
trial court’s resolution of issues of law is reviewed de novo, (2)
the trial court’s factual findings are reviewed for clear error,
and (3) the trial court’s determinations of whether a party is in
contempt and of the sanction to be imposed are reviewed for
abuse of discretion. Hossaini v. Vaelizadeh, 283 Neb. 369, 808
N.W.2d 867 (2012).
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ANALYSIS
Standing.
Douglas argues the State lacks standing to bring the con-
tempt action without evidence of a signed, written request by
DHHS conferring such authority.
[2-4] In response, the State asserts that it has the authority
to initiate contempt proceedings from a series of Nebraska stat-
utes, see Neb. Rev. Stat. §§ 43-512 through 43-512.18 (Reissue
2016), and that these statutes do not require the State to make
part of the court record any request from DHHS to initiate such
proceedings. The State correctly states that § 43-512 (Supp.
2015) details the procedure by which any dependent child, or
any relative or eligible caretaker of such dependent child, may
file a written application for financial assistance to DHHS.
(Pursuant to Neb. Rev. Stat. § 43-504(1) (Reissue 2016), a
dependent child includes a child under 19 years of age who has
received or is in need of state aid.) Following the application,
DHHS investigates to see if the child has a parent or stepparent
who is able to contribute to the support of such child and has
failed to do so; upon such a finding, a copy of the finding of
such investigation and a copy of the application “shall immedi-
ately be filed with the county attorney or authorized attorney.”
§ 43-512(2). (Section 43-512(6)(a) defines an “[a]uthorized
attorney.”) Section 43-512.01 states in relevant part that it
is the duty of the county attorney or authorized attorney to
“immediately take action” against the nonsupporting parent,
and initiate a child support enforcement action. “If the county
attorney initiates an action, he or she shall file either a crimi-
nal complaint for nonsupport under section 28-706 or a civil
complaint against the nonsupporting parent or stepparent under
section 43-512.03.” § 43-512.01.
In its motion for an order to show cause and to appear, the
State asserted it was filing the motion under the authority of
§ 43-512.03, but did not specify under which subsection of
the statute it was proceeding. Section 43-512.03 provides in
relevant part as follows:
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(1) The county attorney or authorized attorney shall:
(a) On request by [DHHS] as described in subsection
(2) of this section or when the investigation or applica-
tion filed under section 43-512 or 43-512.02 justifies,
file a complaint against a nonsupporting party in the
district, county, or separate juvenile court praying for
an order for child or medical support in cases when
there is no existing child or medical support order. After
notice and hearing, the court shall adjudicate the child
and medical support liability of either party and enter an
order accordingly;
(b) Enforce child, spousal, and medical support orders
by an action for income withholding pursuant to the
Income Withholding for Child Support Act;
(c) In addition to income withholding, enforce child,
spousal, and medical support orders by other civil actions
or administrative actions, citing the defendant for con-
tempt, or filing a criminal complaint;
(d) Establish paternity and collect child and medical
support on behalf of children born out of wedlock; and
(e) Carry out sections 43-512.12 to 43-512.18.
(Emphasis supplied.)
[5] Because the State was attempting to enforce an already
existing child support order, the State’s action falls under the
authority of § 43-512.03(1)(c). And § 43-512.03(4) provides
that “[t]he State of Nebraska shall be a real party in interest
in any action brought by or intervened in by a county attor-
ney . . . to enforce an order for child, spousal, or medical
support.” At the show cause/contempt hearing, the State said
that DHHS had requested an action be brought to enforce the
child support order because the recipient of the child sup-
port was receiving public assistance benefits. Contrary to
Douglas’ contention, we have found no authority stating that
the request from DHHS is necessary evidence for the State
to have standing in a contempt action under § 43-512.03.
Compare State on behalf of Hopkins v. Batt, 253 Neb. 852,
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573 N.W.2d 425 (1998) (prenotice-pleading case in which
court found remedy in § 43-512.03 not applicable because
there was no allegation child had received or was eligible to
receive public assistance benefits). Accordingly, the State, as
the real party in interest, had standing to bring the contempt
action against Douglas.
Subject Matter Jurisdiction.
Douglas asserts that the district court “only has subject mat-
ter jurisdiction over an action brought pursuant to [§] 43-512.03
when there is no existing child support order.” Brief for appel-
lant at 7. And since there was already an existing child support
order in this case, Douglas suggests the district court did not
have subject matter jurisdiction over the present action. In sup-
port of his argument, Douglas cites to State ex rel. Gaddis v.
Gaddis, 237 Neb. 264, 465 N.W.2d 773 (1991), and State ex
rel. Cammarata v. Chambers, 6 Neb. Ct. App. 467, 574 N.W.2d
530 (1998). However, both of these cases addressed sub-
ject matter jurisdiction with regard to only one subsection of
§ 43-512.03—the subsection dealing with the State initiating a
child support action, as discussed next.
It is true that in State ex rel. Gaddis v. Gaddis, supra, the
Nebraska Supreme Court held that “as a prerequisite for an
action under § 43-512.03, there cannot be an existing child
support order in any jurisdiction” and that “a court has sub-
ject matter jurisdiction for an action under § 43-512.03 only
‘when there is no existing child support order’ in Nebraska
or any other jurisdiction.” 237 Neb. at 267-68, 465 N.W.2d at
775. See, also, State ex rel. Cammarata v. Chambers, supra,
(relying on State ex rel. Gaddis v. Gaddis, supra, and hold-
ing the same). In both cases, the Nebraska Supreme Court and
this court generally referred to § 43-512.03 in the analysis.
However, a complete reading of both cases makes it clear that
their holdings only applied to one subsection of § 43-512.03,
specifically what is currently § 43-512.03(1)(a), which per-
tains to initiating a child support action. The holdings did not
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involve other subsections of the statute permitting, as in this
case, enforcement of a child support order.
Although the Supreme Court in State ex rel. Gaddis v.
Gaddis, supra, makes general references to § 43-512.03
throughout the opinion, it does specifically identify the sub-
section at issue when it states that “the issue is whether the
district court had subject matter jurisdiction for the action
commenced under § 43-512.03(1).” 237 Neb. at 266, 465
N.W.2d at 775. In that case, it was acknowledged by the
State, and substantiated at trial, that there was already a child
support order in effect in Colorado at the time the State ini-
tiated a petition in Nebraska seeking a child support order
against a father who had been making payments pursuant
to the Colorado order. It was not an action to enforce child
support as in the case before this court; rather, the State was
seeking to establish a child support order when such an order
already existed.
The version of § 43-512.03 (Reissue 1988) in effect at that
time provided:
The county attorney or authorized attorney shall:
(1) On request by the Department of Social Services
or when the investigation or application filed under
[§] 43-512 or 43-512.02 justifies, file a petition against a
nonsupporting parent or stepparent in the district, county,
or separate juvenile court praying for an order for child
support in cases when there is no existing child support
order. After notice and hearing, the court shall adjudicate
child support liability of the nonsupporting parent or step-
parent and enter an order accordingly;
(2) Enforce child and spousal support orders by an
action for income withholding pursuant to the Income
Withholding for Child Support Act;
(3) If income withholding is not feasible, enforce child
and spousal support orders by other civil actions, citing
the defendant for contempt, or filing a criminal com-
plaint; and
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(4) Establish paternity and collect child support on
behalf of children born out of wedlock.
The Supreme Court set forth only the language from subsection
(1) above in its opinion, and the language of § 43-512.03(1) at
the time of the Gaddis opinion corresponds to what is currently
§ 43-512.03(1)(a). Gaddis makes no reference to the other
subsections of § 43-512.03, which include specific authority
for the State to enforce child support orders. Accordingly, we
read Gaddis to apply only to § 43-512.03(1)(a), and not to the
other subsections of the statute.
Similarly, in State ex rel. Cammarata v. Chambers, 6 Neb.
App. 467, 574 N.W.2d 530 (1998), the State brought an action,
pursuant to § 43-512.03 et seq. (Reissue 1993, Cum. Supp.
1994 & Supp. 1995), seeking child support and medical cover-
age from a father, even though past orders for child support
had been entered. This court said, “[i]n relevant part,” the
version of § 43-512.03 in effect at the time of trial provided
as follows:
(1) The county attorney or authorized attorney shall:
(a) On request by the Department of Social Services
. . . file a petition against a nonsupporting parent or
stepparent in the district, county, or separate juvenile
court praying for an order for child or medical support
in cases when there is no existing child or medical sup-
port order.
State ex rel. Cammarata v. Chambers, 6 Neb. Ct. App. at 470, 574
N.W.2d at 532. Relying on the Supreme Court’s holding in
State ex rel. Gaddis v. Gaddis, 237 Neb. 264, 465 N.W.2d 773
(1991), this court held that because there was an existing sup-
port order, the State was not authorized to file the petition and
the district court did not have subject matter jurisdiction.
In State ex rel. Cammarata v. Chambers, supra, like in State
ex rel. Gaddis v. Gaddis, supra, this court generally referred
to § 43-512.03 in its analysis, although notably, the court
only set forth and addressed one subsection of that statute,
specifically § 43-512.03(1)(a). A complete reading of State ex
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rel. Cammarata v. Chambers, supra, makes it clear that the
holding only applied to § 43-512.03(1)(a). And the language
of § 43-512.03(1)(a) at the time of the Chambers opinion cor-
responds to the current version of § 43-512.03(1)(a).
[6,7] Although the State in this case did not specify under
which subsection of § 43-512.03 it was proceeding, because
it was seeking to enforce an already existing child sup-
port order, the State’s action falls under the authority of
§ 43-512.03(1)(c), and not § 43-512.03(1)(a). Subsection
(1)(c) provides in relevant part that the county attorney shall
enforce child support orders “by other civil actions or admin-
istrative actions, citing the defendant for contempt, or filing a
criminal complaint.” Since a contempt citation presumes the
violation of a previous court order, the entirety of § 43-512.03
cannot be read to exclude cases where previous court orders
already exist. See Adair Asset Mgmt. v. Terry’s Legacy, 293
Neb. 32, 875 N.W.2d 421 (2016) (appellate court will try to
avoid, if possible, statutory construction that would lead to
absurd result). Accordingly, we read the holdings on subject
matter jurisdiction in State ex rel. Gaddis v. Gaddis, supra,
and State ex rel. Cammarata v. Chambers, supra, to apply
only to what is currently § 43-512.03(1)(a), which pertains
to the State’s authority to initiate child support actions under
that specific section of the statute, and not to the State’s
authority to bring child support enforcement actions under
§ 43-512.03(1)(c).
[8,9] Subject matter jurisdiction deals with a court’s abil-
ity to hear a case; it is the power of a tribunal to hear and
determine a case of the general class or category to which the
proceedings in question belong and to deal with the general
subject matter involved. See Anderson v. Wells Fargo Fin.
Accept., 269 Neb. 595, 694 N.W.2d 625 (2005). In Smeal Fire
Apparatus Co. v. Kreikemeier, 279 Neb. 661, 675, 782 N.W.2d
848, 862 (2010), disapproved on other grounds, Hossaini
v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012), the
Nebraska Supreme Court said:
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We have stated that a court that has jurisdiction to issue
an order also has the power to enforce it. A court can
issue orders that are necessary to carry its judgment or
decree into effect. Nebraska courts, through their inherent
judicial power, have the authority to do all things reason-
ably necessary for the proper administration of justice.
And this authority exists apart from any statutory grant of
authority. We have recently explained that the power to
punish for contempt is incident to every judicial tribune.
It is derived from a court’s constitutional power, without
any expressed statutory aid, and is inherent in all courts
of record.
Because the district court had the power to enforce its previ-
ous child support order, it had subject matter jurisdiction over
this contempt action.
Payment History.
Douglas argues the district court erred when it admitted the
DHHS payment history report into evidence as a “valid bill
of costs for child support without anyone attesting to, or sign-
ing off on, it.” Brief for appellant at 8. He references several
provisions of the Uniform Commercial Code in support of his
argument. However, the Uniform Commercial Code, which
governs commercial and business transactions, is not appli-
cable here.
[10] The child support payment history received into evi-
dence complied with the necessary requirements. Pursuant
to § 42-358(3), “[t]he Title IV-D Division of [DHHS] shall
maintain support order payment records pursuant to section
43-3342.01 . . . .” Neb. Rev. Stat. § 43-3342.01 (Reissue 2016)
provides:
(1) The responsibilities of the State Disbursement Unit
shall include the following:
(a) Receipt of payments, except payments made pursu-
ant to subdivisions (1)(a) and (1)(b) of section 42-369,
and disbursements of such payments to obligees, the
department, and the agencies of other states;
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(b) Accurate identification of payments;
(c) Prompt disbursement of the obligee’s share of
any payments;
(d) Furnishing to any obligor or obligee, upon request,
timely information on the current status of support order
payments; and
(e) One location for employers to send income with-
holding payments.
(2) The Title IV-D Division shall maintain records of
payments for all cases in which support order payments
are made to the central office of the State Disbursement
Unit using the statewide automated data processing and
retrieval system. . . .
(3) A true copy of the record of payments, balances,
and arrearages maintained by the Title IV-D Division is
prima facie evidence, without further proof or foundation,
of the balance of any amount of support order payments
that are in arrears and of all payments made and dis-
bursed to the person or agency to whom the support order
payment is to be made. Such evidence shall be considered
to be satisfactorily authenticated, shall be admitted as
prima facie evidence of the transactions shown in such
evidence, and is rebuttable only by a specific evidentiary
showing to the contrary.
(4) A copy of support payment records maintained by
the Title IV-D Division shall be considered to be a true
copy of the record when certified by a person designated
by the division pursuant to the rules and regulations
adopted and promulgated pursuant to this section.
(Emphasis supplied.)
In the instant case, the payment history report received into
evidence as exhibit 1 contained a “Certification” that it was
a “true copy of the official record of support order payments,
balances, and arrearages maintained by the IV-D division,
pursuant to Neb Rev Stat §43-3342.01.” It was electronically
signed by a “CSE Payment Records Specialist” on behalf of
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“Byron Van Patten, IV-D Director.” Accordingly, the payment
history report was properly authenticated and the district court
did not err when it received the report into evidence.
Modification.
Douglas also assigns, but does not specifically argue, that
the district court was without jurisdiction to modify an exist-
ing child support order. However, the case did not involve the
modification of an existing child support order; rather, it was
a contempt action to enforce an existing child support order.
And as previously discussed, the district court has jurisdiction
over such actions.
“Willful” Contempt.
[11] Douglas argues that the district court erred when it
found him to be in willful contempt despite his impoverished
status. Pursuant to § 42-358(3), “[a] rebuttable presumption of
contempt shall be established if a prima facie showing is made
that the court-ordered child or spousal support is delinquent.”
The State put into evidence a certified copy of Douglas’ child
support payment history showing that as of November 9, 2015,
he had an outstanding child support balance of $4,112.94
(delinquent, arrears, and interest). Because the State made a
prima facie showing that Douglas’ child support obligation was
delinquent, there was a rebuttable presumption of contempt.
The burden then shifted to Douglas to produce evidence rebut-
ting the statutory presumption.
When a party to an action fails to comply with a court order
made for the benefit of the opposing party, such an act is ordi-
narily a civil contempt, which requires willful disobedience as
an essential element. Hossaini v. Vaelizadeh, 283 Neb. 369,
808 N.W.2d 867 (2012). “‘Willful’ means the violation was
committed intentionally, with knowledge that the act violated
the court order.” Id. at 376, 808 N.W.2d at 873. We consider
now whether Douglas introduced evidence sufficient to over-
come the presumption that he was in willful contempt of the
child support order.
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Douglas provided limited factual information to the district
court regarding why he should not be found in contempt. For
his opening statement, Douglas said he wanted to “make a
statement as to [his] indigence . . . and [his] inability to pay at
this time, but, other than that, [he would] let the prosecution go
forward.” Later, after the State produced the payment history
record establishing a prima facie case of contempt, Douglas
was asked if he had anything to rebut the evidence that he
was behind in his child support payments. Douglas told the
district court:
I am indigent. I’ve got, publicly declared, two poverty
affidavits on the court record. I’m currently in the appel-
late court with a juvenile case. The custody of my daugh-
ter is up in the air. It — the juvenile case has been — my
brief has just been accepted.
I’m also — currently, the District Court is going to
receive an appeal in which I was denied a substantial
right during a special proceeding. I appealed that, also,
Your Honor. And, you know, so my poverty affidavits in
itself speak for themselves. I — I — I cannot pay right
now. That’s just — it’s that simple. I’m indigent. I am
under — I have nothing.
At the hearing, the court made a verbal finding that, based
on the evidence, Douglas was in willful contempt of court.
Douglas responded by saying, “How could I be in willful con-
tempt when it’s beyond my control? I am — I’m in a poverty
status. I have no money. I have tools to my name. I have no
property, tools.”
While Douglas claimed to have poverty affidavits on
“record” in other court cases, he provided no evidence of such
to the district court in this case. He did not give testimony
regarding his ability to work, his employment status, or any
information regarding his income, or lack thereof, or why he
had made no child support payments for an entire year. He
simply stated that he could not pay, but provided no reason
why, other than he has “nothing.” We note that the show cause
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order entered on May 12, 2015, ordered Douglas to bring
income tax returns for the past 3 years and his last three wage
statements; he failed to do so. In a civil contempt proceeding
where a party seeks remedial relief for an alleged violation of
a court order, an appellate court reviews the trial court’s fac-
tual findings for clear error and its determinations of contempt
for an abuse of discretion. By finding Douglas in willful con-
tempt of court, the district court implicitly found that Douglas
had not provided sufficient evidence to rebut the presumption
of contempt. See Hossaini v. Vaelizadeh, supra. We agree and
affirm the district court’s finding that Douglas was in willful
contempt of court.
CONCLUSION
For the reasons stated above, we affirm the decision of the
district court.
A ffirmed.