Formanack v. Formanack

• Decision Date: 02 February 1990
• Docket Number: No. 88-268,88-268
• Citation: 234 Neb. 325,451 N.W.2d 250
• Parties: Coral Lee FORMANACK, Appellee, v. Thomas Joseph FORMANACK, Appellant.
• Court: Nebraska Supreme Court

Page 250

451 N.W.2d 250

234 Neb. 325

Coral Lee FORMANACK, Appellee, v.Thomas Joseph FORMANACK, Appellant.

No. 88-268.

Supreme Court of Nebraska.

Feb. 2, 1990.

Syllabus by the Court

1.Foreign Judgments.The Revised Uniform Reciprocal Enforcement of Support Act, Neb.Rev.Stat. §§ 42-762 et seq.(Reissue 1988), provides two civil remedies.Under the first, the procedure for which is outlined in the civil enforcement sections contained in part III of the act, the party claiming support, the obligee, may bring suit in the obligee's home state, or initiating state; under the second, the procedure for which is outlined in the registration of foreign support orders sections contained in part IV of the act, the beneficiary of an outstanding support judgment of another state may register that judgment in the state where the obligor is present and the remedy provides a summary procedure for enforcing that judgment in the obligor's state as if the registered judgment were one rendered by a court of that state.

2.Foreign Judgments.Neb.Rev.Stat. § 42-7,101(Reissue 1988) applies only when a party has already obtained a support order in another state and is merely seeking to enforce in this state the money obligations accrued under the foreign support order.

3.Foreign Judgments: Jurisdiction: Courts.The courts of Nebraska have jurisdiction to enter a support order under part III of the Revised Uniform Reciprocal Enforcement of Support Act,Neb.Rev.Stat. §§ 42-762 et seq.(Reissue 1988), even though no such order was entered in the state dissolving the marriage or in any other state.

4.Foreign Judgments: Child Support: Appeal and Error.Fixing the amount of child support is equitable in nature; thus, such determinations under the Revised Uniform Reciprocal Enforcement of Support Act, Neb.Rev.Stat. §§ 42-762 et seq.(Reissue 1988), are reviewable in the same manner as are orders fixing child support in dissolution of marriage proceedings.

5.Foreign Judgments: Child Support: Appeal and Error.The decision whether to grant child support under the Revised Uniform Reciprocal Enforcement of Support Act, Neb.Rev.Stat. §§ 42-762 et seq.(Reissue 1988), is one within the discretion of the trial court, and, although reviewed de novo by the Nebraska Supreme Court on the record, the trial court's decision will be upheld absent an abuse of discretion.

6.Foreign Judgments: Child Support.In determining the amount of child support to be awarded under the Revised Uniform Reciprocal Enforcement of Support Act, Neb.Rev.Stat. §§ 42-762 et seq.(Reissue 1988), the trial court must take into consideration the status, character, and situation of the parties and attendant circumstances, including the financial condition of the parties and the estimated cost of support of the children.

7.Rules of the Supreme Court: Child Support.The Nebraska Supreme Court's Child Support Guidelines, promulgated pursuant to Neb.Rev.Stat. § 42-364.16(Reissue 1988), apply to any child support matter adjudicated from and after October 1, 1987.

8.Foreign Judgments: Attorney Fees.The awarding of attorney fees in an action under the Revised Uniform Reciprocal Enforcement of Support Act, Neb.Rev.Stat. §§ 42-762 et seq.(Reissue 1988), is a matter within the trial court's discretion.

9.Foreign Judgments: Attorney Fees.Factors to be considered in awarding an attorney fee in an action under the Revised Uniform Reciprocal Enforcement of Support Act, Neb.Rev.Stat. §§ 42-762 et seq.(Reissue 1988), are the amount of alimony awarded, if any, the earning capacity of the parties, the services performed and results obtained, the length of time required for preparation and presentation of the case, customary charges of the bar, and the general equities of the case.

James E. Bachman, of Bachman & Blunk, P.C., Omaha, for appellant.

Donald R. Witt, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

I.INTRODUCTION

A South Dakota court dissolved the marriage between petitionermother, Coral Lee Formanack, the appellee in this court, and respondentfather, Thomas Joseph Formanack, the appellant in this court, and later awarded custody of the two minor children of the parties to the father without obligating the mother for child support.Following other proceedings, the father brought this action pursuant to the provisions of the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), found at Neb.Rev.Stat. §§ 42-762 et seq.(Reissue 1988), asking the court below to modify the South Dakota decree so as to require the mother to pay child support.The court below dismissed the father's action and awarded the mother an attorney fee.The father's three assignments of error consolidate to assert the court below abused its discretion in (1) failing to order the mother to pay child support and (2) awarding her a $500 attorney fee.We affirm the attorney fee award, but reverse the denial of child support and remand the cause with the direction that the court below order the mother to pay child support in the sum of $10 per month per child.

II.FACTS

The initial 1980 South Dakota decree granted sole legal and physical custody of the parties' two sons, Marcus William, who was born on May 31, 1971, and Matthew Joseph, who was born on October 18, 1975, to the mother and ordered the father to pay child support for both children in the amount of $550 per month.

Each of the parties later moved to Nebraska; at the time of the hearing below, the father lived in Douglas County and the mother in Lancaster County.Eventually, the father became delinquent in his child support obligation.In an attempt to collect the claimed $8,725 arrearage, the mother registered the South Dakota judgment in the respective district courts for Lancaster and Douglas Counties.In the autumn of 1985, the parties reached a settlement agreement concerning the amount the mother would accept in satisfaction of the child support arrearage.

It appears that in August of 1985, the South Dakota court, in accordance with the stipulation of the parties precipitated by the children's request to live with their father, modified its initial decree by placing physical custody of the children with the father and terminating the father's child support obligation.At that time the father did not request that the mother be required to pay child support.

In December of that same year, the father petitioned the district court for Douglas County, Nebraska, pursuant to the Nebraska Child Custody Jurisdiction Act, Neb.Rev.Stat. §§ 43-1201 et seq.(Reissue 1984 &Cum.Supp.1986), for full legal custody of the children and reasonable child support from the mother.The court, pursuant to the mother's motion for partial summary judgment on the basis that the court lacked jurisdiction to modify the support portion of the South Dakota decree, struck that portion of the father's petition.However, pursuant to the parties' stipulation, the Douglas County District Court, in January 1987, granted joint legal custody of the children to both parents.No appeal was taken from those orders.

Less than a month later, the father filed this action, alleging the conclusion that there had been "material changes in circumstance" since the entry of the decree of dissolution and the mother's subsequent registration of the child support judgment in her favor which justified a modification of the South Dakota decree so as to require the mother to pay reasonable child support.

At the September 17, 1987, hearing below, the father adduced evidence establishing that until March 1986, he practiced dentistry as an employee of a group of dentists, earning $35,480 in 1985 and $13,970 until March 1986.Under its agreement with the father, the dental group was, at the end of 2 years, required to allow the father"to buy 25 percent of the business," but "it was decided that [he] would not buy in."

After he was unable to secure other employment, the father established his own practice, organizing it as a professional corporation in July 1986.According to him, the practice has lost money since its inception, yielding a gross income for the months of January through August 1987 of $44,965.60, but generating during those same months expenses of $53,246.28.He did not itemize those expenses and admitted on cross-examination that they included at least six checks he had written himself in the amounts of $700 in April, $400 in May, $900 in June, $1,300 in July, $1,900 in August, and $700 in September.The testimony does not make clear whether these payments constituted loans from the practice to himself or whether the practice was repaying him for a loan he had previously made to the practice.The father expressed the hope that the practice would show a profit in 1988, although it had not done so in 1987.

The father also introduced into evidence a summary of his personal expenses, assets, and debts at the time of "the two ... modifications of the Decree" and at the time of the hearing.According to the summary, the father's personal expenses at the time of the hearing were approximately the same as they had been when he obtained possession and thereafter joint custody of the children.The summary shows that his debts have increased from several hundred dollars owed to credit card companies and $5,000 owed to the Internal Revenue Service to his current debts consisting of $55,000 owing to Security Pacific, $740 to Contel Credit, $3,070 to Visa, $2,190 to Mastercard, $4,400 to Noddle Development, $1,000 to the Internal Revenue Service, $1,200 to the mother for past alimony, and amounts owing to his family.The debt to Security Pacific relates to moneys he borrowed to establish and operate his practice.The father also borrowed moneys to pay the mother the amount owed her under the settlement agreement reached between them concerning the...