Morrill County on Behalf of Cahoy v. Darsaklis, A-97-1040

• Decision Date: 11 August 1998
• Docket Number: No. A-97-1040,A-97-1040
• Citation: 584 N.W.2d 36,7 Neb.App. 489
• Parties: MORRILL COUNTY, Nebraska, on behalf of Hayden F. CAHOY, a minor child, Appellee, v. Peter DARSAKLIS, Appellant, and Jennifer Cahoy, Appellee.
• Court: Nebraska Court of Appeals

Page 36

584 N.W.2d 36

7 Neb.App. 489

MORRILL COUNTY, Nebraska, on behalf of Hayden F. CAHOY, a minor child, Appellee, v. Peter DARSAKLIS, Appellant, and Jennifer Cahoy, Appellee.

No. A-97-1040.

Court of Appeals of Nebraska.

Aug. 11, 1998.

Syllabus by the Court

1. Paternity: Child Support: Appeal and Error. A trial court's award of child support in a paternity case will not be disturbed on appeal in the absence of an abuse of discretion.

2. Judgments: Appeal and Error. On questions of law, an appellate court has an independent obligation to reach the correct conclusion.

3. Child Support: Appeal and Error. Modification of child support is an issue entrusted to the discretion of the trial court, and although reviewed de novo on the record, the decision of the trial court will be affirmed absent an abuse of discretion by the trial court.

4. Paternity: Child Support. Child support in a paternity action is to be determined in the same manner as in cases of children born in lawful wedlock.

5. Rules of the Supreme Court: Child Support. The Nebraska Child Support Guidelines are presumptively applicable in determining child support in cases of children born out of wedlock.

6. Child Support: Proof. When a parent seeks modification of child support obligations, it is that parent's burden to produce proof that a material change of circumstances has occurred which justifies the modification.

7. Rules of the Supreme Court: Child Support: Taxation. The Nebraska Child Support Guidelines contemplate that income for purposes of child support may differ from taxable income and do not prevent consideration of tax-exempt benefits in 8. Stipulations: Parties: Courts: Good Cause. Courts will enforce valid stipulations voluntarily entered into by the parties unless some good cause is shown for declining to do so, especially where the stipulations have been acted upon so that a party relying upon it cannot thereafter be restored to his or her prestipulation status quo.

determining the amount of a parent's income derived from all sources.

9. Attorney Fees. Attorney fees are recoverable in Nebraska only where provided for by law or allowed by custom.

Tylor J. Petitt, of The Van Steenberg Firm, P.C., Scottsbluff, for appellant.

Jean Rhodes, Morrill County Attorney, Bridgeport, for appellee County.

Robert M. Brenner, of Robert M. Brenner Law Office, Gering, for appellee Jennifer Cahoy.

MILLER-LERMAN, C.J., and SIEVERS and MUES, JJ.

MILLER-LERMAN, Chief Judge.

Appellee Morrill County, Nebraska, filed a paternity action against appellant, Peter Darsaklis, on behalf of Hayden F. Cahoy (Hayden), a minor child born to appellee Jennifer Cahoy (Cahoy). The trial court found that Darsaklis was Hayden's father and ordered, inter alia, that Darsaklis pay child support. In subsequent proceedings, Darsaklis sought a modification to decrease his child support obligation, a request which the trial court denied. Darsaklis appeals. We affirm.

STATEMENT OF FACTS

Hayden was born on December 15, 1995. Hayden's mother, Cahoy, was not and is not married to Hayden's father, Darsaklis. On April 18, 1996, the Morrill County Attorney filed a petition against Darsaklis, seeking a court order to declare Darsaklis' paternity and establish his monthly obligation to support Hayden. Cahoy was not designated as a party to the filiation proceedings commenced by the county attorney, and she did not initially participate in them.

The record on appeal does not contain a record of early proceedings conducted on the petition filed by the county attorney. However, the record does contain a letter to counsel dated November 4, 1996, in which the trial court announced its finding that Darsaklis was Hayden's father and ordered Darsaklis to pay $324 per month in child support, made retroactively effective to October 1. These findings by the trial court were formalized in an order filed on December 4. Darsaklis filed a motion for new trial, seeking to reduce his child support obligation, but the trial court overruled the motion.

The December 4, 1996, order contained no provision pertaining to Darsaklis' visitation with Hayden. Cahoy subsequently moved to intervene in the filiation case on March 3, 1997, seeking orders to define Darsaklis' visitation rights, as well as additional financial contributions to be paid by Darsaklis for Hayden's health care costs unreimbursed by insurance and the cost of child care while Cahoy was at work.

In Darsaklis' responsive pleading to Cahoy's motion to intervene, he admitted that he had a legal responsibility to financially support Hayden, including the cost of child care and unreimbursed health care costs. In this responsive pleading, Darsaklis also requested the court to modify his previously ordered child support obligation.

Less than a week after Cahoy sought leave to intervene in the filiation case, on March 7, 1997, the county attorney requested an order finding Darsaklis in contempt of court for failure to pay child support. Despite the trial court's 1996 order determining Darsaklis' monthly support obligation, Darsaklis paid no support whatsoever for Hayden's benefit until the contempt motion was filed. By April 1, Darsaklis' unpaid child support obligation exceeded $2,200. On April 24, Darsaklis was found in willful contempt of court and sentenced to 90 days' incarceration. He avoided serving his sentence by completely paying the support arrearage and depositing $1,000 with the court as security for future delinquent payments. The bond was soon put to use: Darsaklis again failed to pay child support in July 1997. The county attorney requested, and the trial court On August 15, 1997, the trial court convened a hearing on Cahoy's motion and petition to intervene in the filiation case, as well as on Darsaklis' motion to modify his child support obligation. At the beginning of the hearing, before evidence was adduced, counsel for Darsaklis advised the court that Darsaklis stipulated to Cahoy's intervention in the action and further stipulated that Darsaklis would pay a share of child-care costs and unreimbursed health care costs for Hayden's benefit. The trial court accepted the stipulation and ordered that Darsaklis' share of these expenses be paid in the same proportion as Darsaklis' proportionate share of the total amount of Hayden's monthly support, determined in accordance with the Nebraska Child Support Guidelines.

allowed, payment for Hayden's support to be withdrawn from the bond posted by Darsaklis.

The court then heard evidence on the merits of Darsaklis' motion to modify his child support obligation. Darsaklis testified that he owns a 235-acre farm, which formerly belonged to his parents. Darsaklis purchased it through bankruptcy proceedings, and he pays approximately $21,000 annually on the debt for the farm. He testified that he pays for irrigation water and land taxes, which roughly total $12,000 annually; the irrigation fees include payment for farmland and pastureland owned by his brother. In the bankruptcy proceedings, Darsaklis also obtained farm equipment, for which he makes an annual payment of approximately $8,000 to $9,000.

In 1997, Darsaklis cash-rented his farm to a local farmer for $34,500, and Darsaklis agreed to irrigate the crops on the farm for a 3-month period for an additional payment of $750 per month. He testified that he also earned income totaling $1,150 from cultivating another farmer's land and driving a truck, and he received $280 in flood relief funds. Darsaklis claimed he was unemployed for the period of January through April because "I was trying to get a deal done to lease my farm.... I was going to see lawyers every other day, that was a job anyway."

Darsaklis testified that he was receiving medical treatment for injuries sustained as a result of a gunshot wound to his head. He had filed a tort action to recover damages as a result of this shooting, but he had not received any money at the time of trial. Although Darsaklis claimed that he suffered ongoing medical problems because of the gunshot wound, he also testified that he worked at irrigation on a full-time basis, and he admitted that he recently entered his horse in a "[r]ubber check" race, in which "[m]y horse did pretty good."

Darsaklis testified that in a recent flash flood, he lost farm equipment he valued at $12,500. He testified that he also owned other, unspecified farm equipment which was suitable for use, but which he simply stored. He did not use it for his own farming purposes, or rent, lease, or loan it to any other person. At the time of trial, Darsaklis was living in a three-bedroom house located on the farm he owned. The cost of that house was apparently included within the $21,000 he paid annually on the farm debt, and Darsaklis made no other payment on the house. In the affidavit of financial condition he submitted to the trial court for purposes of calculating his child support obligation, Darsaklis referenced his 1994, 1995, and 1996 tax returns, in which he claimed the farm payments as deductions from income. He asserted that these payments should likewise be excluded from consideration as income for purposes of determining his child support obligation. Darsaklis claimed that his house utility payments, including electricity, gas, and water, should also be excluded from consideration as income.

Exclusive of payment for child care and unreimbursed health care costs, Darsaklis argued that his monthly obligation to support Hayden should be reduced from the previously ordered amount of $324 to $165.31. The trial court disagreed, offering the following observations from the bench:

A couple things, I cannot wade through all this bankruptcy stuff and refigure this and that. It--you know, you can make these figures into whatever they want to be. Clearly, anybody that can irrigate--and I've done it in the past, it's hard work Basing one thing here, I think that you take all this bankruptcy...