McKibbin v. State, Dept. of Social Services
| Decision Date | 18 March 1997 |
| Docket Number | No. A-96-075,A-96-075 |
| Parties | Michael J. McKIBBIN, Appellant, v. STATE of Nebraska, DEPARTMENT OF SOCIAL SERVICES, Appellee. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Administrative Law: Appeal and Error. When a petition instituting proceedings for review under the Administrative Procedure Act is filed in a district court on or after July 1, 1989, the review shall be conducted by the district court without a jury de novo on the record of the agency.
2. Administrative Law: Judgments: Appeal and Error. On appeal from a district court under the Administrative Procedure Act, an appellate court reviews the judgment for errors appearing on the record and will not substitute its factual findings for those of the district court where competent evidence supports those findings.
3. Administrative Law: Final Orders: Appeal and Error. When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
4. Child Support: Notice. Pursuant to Neb.Rev.Stat. § 43-1720 (Cum.Supp.1994), unless a prior notice has been sent and except where a court has ordered income withholding for child support, the notice of income withholding is triggered by receipt of certification from the clerk of the district court made pursuant to Neb.Rev.Stat. § 42-358 (Cum.Supp.1994).
5. Child Support: Public Officers and Employees: Time. Pursuant to Neb.Rev.Stat. § 42-358(3) (Cum.Supp.1994), the clerk of the district court must certify that the court-ordered child support is delinquent in an amount equal to the support due and payable for a 1-month period of time and report this amount to the county attorney or authorized attorney.
6. Administrative Law: Rules of Evidence: Records. The rules of evidence applicable in district court do not apply at an administrative hearing if the record does not contain a request that the agency be bound by the rules of evidence.
7. Administrative Law: Evidence. An agency may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent persons in the conduct of their affairs and exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence.
Gregory N. Lohr for appellant.
Don Stenberg, Attorney General, and Royce N. Harper for appellee.
Michael J. McKibbin appeals an order of the district court, affirming a decision of the Department of Social Services (DSS) which affirmed the initiation of an income withholding action by the authorized attorney for Dakota County, Nebraska. For the reasons set forth below, we reverse the order of the district court.
Linda C. and Michael J. McKibbin were divorced on January 3, 1990, in Dakota County, Nebraska. The decree provided that Michael pay child support for their two children as specified below:
a. $250.00 per month beginning as of January 1, 1990 and continuing through December 1, 1991;
b. $325.00 per month beginning January 1, 1992 and continuing through December 1, 1993;
c. $375.00 per month beginning January 1, 1994 until the oldest child reaches the age of majority or becomes sooner emancipated or until further order of this court at which time said child support shall be reduced to $187.50 per month for the remaining child until that child reaches the age of majority or becomes sooner emancipated or until further order of this court.
On January 19, 1995, Eugene Kelly, the authorized attorney for Dakota County, initiated an action to withhold income and sent Michael a "Notice of Intent to Withhold Income" pursuant to Neb.Rev.Stat. §§ 43-1701 through 43-1743 (Reissue 1993 & Cum.Supp.1994). The notice indicated that Michael owed back child support in the amount of $762.30. Michael returned the notice and indicated that he wanted to exercise his right to an administrative hearing. On March 17, a telephonic hearing was held with Robert Huston sitting as the hearing officer. Both Kelly and Michael participated by telephone. Kelly, when asked by Huston to provide background information, explained that he did not have the full file before him but advised that he would give a sketch of what was going on. He stated that he sent Michael a notice of intent to withhold income on January 19, 1995, after the clerk's office "indicated" that Michael was $762.30 in arrears in child support. He also testified that he telephoned the clerk's office the day before the hearing. The clerk's office told him that Michael had paid some of the back child support he owed and that as of March 15, 1995, Michael owed approximately $137.30 in back child support.
The following items were received into evidence at the hearing: (1) a copy of the divorce decree entered by the Dakota County District Court; (2) an affidavit of child support arrearages by the Dakota County Clerk of the District Court, showing that Michael owed $237.30 in back child support for the period from January 3, 1990, to February 28, 1995; (3) child support payment receipts provided by Michael; (4) a copy of the notice of intent to withhold income; (5) a copy of a letter Michael wrote on March 11, 1995, which included documents to substantiate his case; (6) a copy of Michael's 1989 state and federal income tax forms; and (7) a copy of the letter scheduling the March 17, 1995, hearing.
On March 30, 1995, the director of DSS issued a finding and order. The director found that Michael owed $375 per month in child support under the decree and that the records of the clerk of the district court for Dakota County reflect that a child support arrearage equal to or greater than the amount due for a 1-month period of time had accumulated. It further specifically found that the clerk's office had certified to the authorized attorney a child support arrearage in the amount of $762.30 as of January 19, 1995, and that there was currently delinquent an amount equal to or greater than the support due for a 1-month period of time. The director affirmed the action of the authorized attorney for Dakota County.
On April 20, 1995, Michael filed an appeal with the district court for Dakota County, stating that he should not be subject to income withholding, because the evidence did On November 17, 1995, the district court held a hearing on the amended petition, and Michael offered into evidence his amended petition and the bill of exceptions from the March 17, 1995, administrative hearing. On January 4, 1996, the district court filed a journal entry, affirming the agency's March 30, 1995, order and finding that the director of DSS properly affirmed the initiation of an income withholding action by the authorized attorney for Dakota County. Michael timely appeals to this court.
not show that he was delinquent in child support payments in an amount equal to or greater than the support due and payable for a 1-month period of time. Michael contended that the agency's March 30, 1995, decision was unsupported by the evidence in view of the entire record and was in excess of the statutory authority and jurisdiction of the agency.
Michael contends that the district court erred in affirming DSS' March 30, 1995, order, since there was no evidence that the statutory grounds for implementing an income withholding action existed, specifically, that there was no competent evidence to support the finding that Michael was delinquent regarding his child support in an amount equal to or greater than the support due and payable for a 1-month period of time.
When a petition instituting proceedings for review under the Administrative Procedure Act is filed in a district court on or after July 1, 1989, the review shall be conducted by the district court without a jury de novo on the record of the agency. Rainbolt v. State, 250 Neb. 567, 550 N.W.2d 341 (1996); Neb.Rev.Stat. § 84-917(5)(a) (Reissue 1994). On appeal from a district court under the Administrative Procedure Act, an appellate court reviews the judgment for errors appearing on the record and will not substitute its factual findings for those of the district court where competent evidence supports those findings. Rainbolt, supra. See Neb.Rev.Stat. § 84-918(3) (Reissue 1994). When reviewing an order of a district court under the Administrative Procedure Act for errors appearing on the record, the inquiry is whether the decision conforms to law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Rainbolt, supra.
Section 43-1718 applies to this case, since the parties were divorced in 1990 and there is no evidence in the record that services were provided under title IV-D of the Social Security Act or that the support order at issue was issued or modified on or after September 6, 1991. Section 43-1718 provides in pertinent part:
A support order shall constitute and shall operate as an assignment, to the clerk of the district court designated to receive the payment, of that portion of an obligor's income as will be sufficient to pay the amount ordered for child, spousal, or medical...
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