State ex rel. Elijah K. v. Marceline K.
| Decision Date | 25 August 2020 |
| Docket Number | No. A-19-981.,A-19-981. |
| Citation | 28 Neb.App. 772,949 N.W.2d 531 |
| Parties | STATE of Nebraska ON BEHALF OF ELIJAH K., a minor child, appellee, v. MARCELINE K., appellant, and John T., appellee. |
| Court | Nebraska Court of Appeals |
Britt H. Dudzinski, of Lustgarten & Roberts, P.C., L.L.O., Omaha, for appellant.
Jerome J. Ortman for appellee John T.
Marceline K. appeals from the judgment of the Sarpy County District Court which established that she and John T. are the biological parents of their minor child, Elijah K., and ordered John to pay monthly child support. John was also ordered to pay child support retroactive to the filing of the complaint to establish paternity brought by the State of Nebraska in 2017. Marceline challenges the district court's decision to not order retroactive child support back to the date of Elijah's birth in 2011. We affirm.
Marceline and John began a dating relationship in 2010; Elijah was born in September 2011. Since his birth, Elijah has lived with Marceline in Sarpy County, Nebraska. Marceline and John never married each other, nor lived together. John was incarcerated from the time of Elijah's birth until Elijah was 6 months old. Marceline indicated that John first met Elijah in March 2012. For about 1 month, John briefly visited Elijah "a couple times a week." From then until August, John saw Elijah briefly "a few times." There were periods in 2012 and 2013 when Marceline and John ended and restarted dating. They tried to reconcile in August and September 2013, and John would have seen Elijah during that time. John saw Elijah for about 15 minutes on a day in October. Marceline and John ended their relationship sometime in 2013. John had no in-person contact and little telephone contact with Elijah over the next 4 years. At some point, John moved to North Carolina.
On September 11, 2017, the State, acting individually and also on behalf of Elijah, filed a complaint pursuant to Neb. Rev. Stat. §§ 43-512.03 and 43-512.04 (Reissue 2016), "and other pertinent Nebraska Statutes," to establish paternity of Elijah. The State alleged that Marceline and John were Elijah's biological parents and that both had an ongoing duty and obligation to support Elijah since Elijah's birth. Among other things, the State asked for entry of a judgment of paternity decreeing that John was Elijah's father and ordering John to pay current, prospective, and retroactive monthly child support.
In his answer, John admitted that he was Elijah's biological father and also alleged that he had two other minor children with a third party. In the same filing, John included a cross-complaint against Marceline regarding matters such as child custody and parenting time. Marceline also filed a cross-complaint against John seeking legal and physical custody of Elijah, child support and retroactive child support, and resolution of "other paternity-related issues."
Trial took place on August 2, 2019. Marceline and John had already reached agreement on many issues, including paternity, child custody, the amount of John's monthly child support obligation, and portions of parenting time. Among the remaining disputed issues for trial was the retroactivity of child support, which is the sole issue on appeal. At the beginning of trial, the State indicated it did not have a position on that issue. The State said that at the time of trial and "for some time" since the matter had been filed, "there ha[d] been no public assistance." The State deferred to the district court on the issue. The State was then excused from trial without objection by either party; Marceline and John then proceeded to adduce evidence.
At the time of trial, Elijah was about a month shy of turning 8 years old. He was still living at the same residence in Nebraska with Marceline; Marceline's mother and grandmother also lived there. John was living in North Carolina with his wife and their two children, ages 3 and 4. Marceline's evidence, along with what we discussed above, was essentially that John spent limited time with Elijah.
John admitted that he had not contributed financial support to Elijah from when Elijah was born. He testified that he "wasn't in [Elijah's] life at that moment," and "[b]ack then" he was not financially stable, and they "were kids." Regarding child support, John's counsel questioned Marceline as follows:
The parties agreed that John's monthly child support obligation, both for future and retroactive child support, should be $363 per month. Marceline wanted John to pay retroactive child support back to October 1, 2011, which was the first day of the month following Elijah's birth, at the rate of $108 per month. John conceded that he was willing to pay retroactive child support at that rate. However, he wanted child support to go back only to the first day of the month after he was served with the State's complaint.
On October 4, 2019, the district court issued a "Judgment of Paternity." Marceline and John were declared Elijah's biological parents. Marceline was awarded the legal and physical custody of Elijah, subject to John's parenting time as set forth in a parenting plan attached to the order. The district court noted that Marceline asked for an award of child support retroactive to Elijah's birth, whereas John asked that child support be awarded retroactively only to the date of the State's complaint.
The district court found that this action was brought by the State on behalf of Elijah pursuant to " Neb. Rev. Stat. § 43-512 [sic] (Assistance for Certain Children)." The district court then stated:
Neither [Marceline] nor [John] has the ability to bring a paternity action as the statute of limitations has long since passed. As such, the cause of action for retroactivity belongs to the minor child through the State and not [Marceline]. The State's Complaint requests "an Order requiring [John] to pay current, prospective and retroactive monthly child support for said child." The State's interest in this matter occurred when [Marceline] began to receive public assistance. When this happened, the State received its statutory authority to file the paternity action. The record is unclear exactly when [Marceline] began to receive aid. The Court finds that this date is important because the Dunkle Court limited retroactive child support to the date a mother began to receive public assistance. The Court therefore finds that the State, having failed to evince when [Marceline] began receiving aid, should be limited to retroactive child support back to the date of the filing of its Complaint through the minor child.
The district court further reviewed the determination of retroactivity under the district court's exercise of its equitable powers. It found that Marceline "failed to bring any paternity case during the four years after the birth of the child" and that "[w]hile she shouldered the burden of raising [Elijah], she also controlled when [John] would have contact with him." The district court observed that Marceline now sought to enforce a judgment which was a "financial detriment" to John. "Any amount of retroactive child support would be askew from the proper amount due each year from the child support guidelines given the number of years and variability of income for the parties during these years." The district court added that the lump sum would be significant and that John would have an "inability to pay such an amount for anything due prior to the filing of the [c]omplaint." The district court found it was equitable to limit the award of retroactive child support to October 1, 2017, the first day of the month after the State filed its complaint.
John was ordered to pay child support of $358 per month, retroactive to October 1, 2017; although the district court indicated it found the parties’ stipulation to a monthly child support amount ($363 per month) to be "acceptable," it based the ordered amount of $358 per month on its own, slightly different, child support calculation and attached its calculation to its order. Marceline does not assign error to this calculation. In addition to John's regular child support obligation, beginning on October 1, 2019, he was to pay an additional $108 per month toward the child support arrearage owed as a result of the retroactive child support ordered until the arrearage was paid in full.
Marceline appeals.
Marceline claims the district court erred by (1) denying her request to make child support retroactive to Elijah's date of birth and (2) determining that John was unable to pay retroactive child support.
In a filiation proceeding, the appellate court reviews the trial court's judgment de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. State on behalf of Hopkins v. Batt , 253 Neb. 852, 573 N.W.2d 425 (1998), overruled on other grounds, State on behalf of Miah S. v. Ian K. , 306 Neb. 372, 945 N.W.2d 178 (2020). In such de novo review, when the evidence is in conflict, the appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Id.
A trial court's award of child support in a paternity case...
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