Dworak v. Fugit, A-90-1254
| Decision Date | 10 November 1992 |
| Docket Number | No. A-90-1254,A-90-1254 |
| Parties | Ann Marie DWORAK, Appellee, v. Anthony Ray FUGIT, Appellant. |
| Court | Nebraska Court of Appeals |
Michael L. Munch of Hascall, Jungers & Garvey, for appellant.
Elizabeth Stuht Borchers of Marks & Clare, for appellee.
Before SIEVERS, C.J., and CONNOLLY and MILLER-LERMAN, JJ.
Ann Marie Dworak, appellee, commenced a filiation proceeding against Anthony Ray Fugit, appellant, pursuant to Neb.Rev.Stat. ch. 43, art. 14 (Reissue 1988). The district court entered judgment that Fugit is the father of David Anthony Dworak. The trial court further ordered Fugit to pay child support of $150 per month, day-care expenses of $96.75 per month, pregnancy-related medical bills of $1,178, and genetic testing expenses of $130. The trial court established a visitation schedule and ordered Fugit to assume medical insurance coverage for the child when employment permitted. Fugit appeals the trial court's order, claiming that (1) the child support awarded is excessive and (2) the day-care expense awarded was error because it disregards whether the day-care expense is work related or school related. For the reasons recited below, the trial court's order is affirmed.
Pursuant to §§ 43-1402 and 43-1406, child support in a filiation proceeding is characterized as "equitable" in nature, and the issue of child support is initially left to the discretion of the trial court. Lancaster v. Brenneis, 227 Neb. 371, 417 N.W.2d 767 (1988). Based on this record, an appellate court's "review of a trial court's judgment is 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." Id. at 374, 417 N.W.2d at 769. See, generally, Adcock v. Adcock, 239 Neb. 705, 477 N.W.2d 583 (1991). In cases interpreting predecessor statutes to § 43-1406, it has also been said that the trial court's "award may not be disturbed unless discretion has been abused and the amount fixed is manifestly excessive." Race v. Mrsny, 155 Neb. 679, 681, 53 N.W.2d 88, 89 (1952).
According to the record, in December 1989, Dworak filed a "Petition to Establish Paternity" of David Anthony Dworak, born May 16, 1989. Following discovery, including two motions to compel filed against Fugit, the case was tried in Douglas County District Court on October 23, 1990. At trial, Fugit admitted he was the natural father of the child.
The testimony at trial regarding earnings shows that Dworak worked part time at Younkers Department Store and that she had year-to-date earnings of $4,376.96 as of October 13, 1990. She testified that she was a full-time industrial psychology student at the University of Nebraska at Omaha and that she incurred approximately $45 per week in day-care expenses. Dworak testified that she had received a total of $75 from Fugit since the birth of their child.
With respect to Fugit's earnings, the trial evidence shows that Fugit's gross earnings for the 4 years prior to trial were as follows:
1986 $10,187.32
1987 8,392.86
1988 4,553.70
Fugit testified that he had voluntarily left his Westin Hotels and Resorts employment in the spring of 1990 to start a restaurant cleaning business, that at the time of trial he had net income of $57 per month, and that he resided with his parents.
On November 13, 1990, the trial court ordered, inter alia, that Fugit pay $150 per month child support and $96.75 per month day-care expenses. Fugit's motion for new trial was denied, and this appeal followed.
On appeal, Fugit argues that in setting child support at $150 per month, the trial court erroneously disregarded Fugit's income of $57 per month; that based on the Nebraska Child Support Guidelines, Fugit would owe nothing; and that the day-care expense award of $96.75 per month was an abuse of discretion. We do not agree.
The courts have frequently observed that both parents have a duty to support their minor children. Knippelmier v. Knippelmier, 238 Neb. 428, 470 N.W.2d 798 (1991); Druba v. Druba, 238 Neb. 279, 470 N.W.2d 176 (1991); Coffey v. Coffey, 205 Neb. 191, 286 N.W.2d 753 (1980). The amount of child support awarded is a function of the status, character, and situation of the parties. Hamm v. Hamm, 228 Neb. 294, 422 N.W.2d 336 (1988). The primary consideration in determining the level of child support payments is the best interests of the child. Phelps v. Phelps, 239 Neb. 618, 477 N.W.2d 552 (1991).
In establishing child support awards, it has been held that the Nebraska Child Support Guidelines apply to child support awards made from and after October 1, 1987. Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122 (1991). The court may "deviate from the guidelines where one or both parties have provided sufficient evidence to rebut the presumption that the guidelines should be applied." Czaplewski v. Czaplewski, 240 Neb. 629, 631, 483 N.W.2d 751, 752 (1992). Accord Polly v. Polly, 487 N.W.2d 558 (Neb.App.1992). Where the earning capacity of a party is sufficiently different than his or her income at trial, the courts in their equitable capacity will deviate from application of the child support guidelines. See, Knippelmier v. Knippelmier, supra; State v. Smith, 231 Neb. 740, 437 N.W.2d 803 (1989).
The court finds the case of State v. Smith, supra, similar to the instant case. In Smith, the putative father in a paternity action had earned $18,000 per year as a state brand inspector. After learning that he was accused of being the father of the child in question, Smith quit his job to work at his parents' ranch, receiving room and board, but no compensation. "Based upon his earning capacity, as evidenced by his earnings as a brand inspector," the Nebraska Supreme Court affirmed the trial court's order requiring Smith to pay $200 per month in child support. Id. at 744, 437 N.W.2d at 806. In the instant case, Fugit has demonstrated through prior employment that he has the earning capacity to make more income than he was receiving at the time of...
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