State ex rel. Kayla T. v. Risinger, S-06-1089.
| Court | Supreme Court of Nebraska |
| Writing for the Court | Miller-Lerman |
| Citation | 273 Neb. 694,731 N.W.2d 892 |
| Parties | STATE of Nebraska on behalf of minor child Kayla T. et al., appellees and cross-appellants, v. Lyle D. RISINGER, appellant and cross-appellee. |
| Docket Number | No. S-06-1089.,S-06-1089. |
| Decision Date | 01 June 2007 |
v.
Lyle D. RISINGER, appellant and cross-appellee.
[731 N.W.2d 893]
Rodney J. Palmer, of Palmer & Flynn, P.C., Ainsworth, for appellant.
Avery L. Gurnsey, Rock County Attorney, Springview, for appellees.
HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
MILLER-LERMAN, J.
Lyle D. Risinger appeals a decree of paternity and child support order entered by the district court for Rock County. The court established Risinger as the father of Kayla T. and ordered him to pay child support and retroactive child support. The court rejected Risinger's assertion that he was not liable for child support because he had an agreement with Kayla's mother that she would not seek child support in return for his giving up all contact with Kayla. We affirm the district court's decree of paternity and support, but, as requested in the State's
cross-appeal, we modify the decree to reflect that retroactive child support was due upon entry of the judgment rather than payable in future installments.
Kayla was born to Linda T. on June 9, 1988. Risinger had been in a sexual relationship
with Linda in 1987, but the relationship ended prior to Kayla's birth. On March 31, 2005, the State of Nebraska filed a petition on behalf of Kayla and Linda against Risinger seeking to establish paternity, child support, and medical reimbursement. The State sought, inter alia, retroactive child support from the date of Kayla's birth.
Risinger filed an initial answer and two amended answers. In the filings, Risinger admitted paternity but affirmatively stated that he had been repudiated by Linda and told that he could not be involved in Kayla's life. Risinger asserted that Linda agreed to refrain from seeking child support in exchange for his agreeing not to see Kayla. Risinger denied that he should be required to pay child support until he had the opportunity to establish a relationship with Kayla. Risinger requested that he be given such opportunity and agreed that he should be required to pay reasonable child support after such relationship had been established. Risinger further asserted, however, that because of the agreement. Linda should be equitably estopped from collecting retroactive child support.
At a hearing on the State's petition, Risinger testified that in late 1987, after he learned that Linda was pregnant, he and Linda had a conversation in which they determined that their relationship was over. Risinger testified that he reluctantly agreed to Linda's request that because they were no longer involved, she did not want him to have anything to do with the baby. Risinger testified that Linda agreed that if he stayed out of the baby's life, she would not seek child support.
In her testimony at the hearing, Linda denied any such agreement. She testified that after a telephone call from Risinger in February 1988, she did not hear from him again until August 1997, when he called, asking to see Kayla. She told him supervised visits could be arranged if he paid all retroactive child support, but Risinger refused and stated he would wait until Kayla turned 18.
The district court entered a decree of paternity and child support order on September 6, 2006. The decree established Risinger as Kayla's father. With regard to support, the court noted the conflicting testimonies regarding the existence of an agreement by which Linda would not seek child support if Risinger stayed away from Kayla. The court found that the evidence supported Linda's version of events and that there was no agreement. The court determined that because Risinger did not carry his burden of establishing the existence of an agreement, equitable estoppel was not applicable.
The court ordered Risinger to pay child support of $591 per month beginning October 1, 2006. The court also determined that Risinger owed retroactive child support in the amount of $60,119, calculated from Kayla's birth until the date of the decree. The court ordered Risinger to pay the retroactive child support at a rate of $25 per month from October 1, 2006, through June 1, 2007, and then at a rate of $350 per month commencing July 1, 2007, and continuing each month thereafter until paid in full. The court ordered that there would be no interest on installments timely made but that interest would accrue on unpaid installments 30 days past due.
Risinger appeals the decree of paternity and support, and the State cross-appeals, challenging the payment schedule.
Risinger asserts that the court erred in (1) finding that there was no agreement between him and Linda by which he would not see or visit Kayla in exchange for Linda's not seeking child support and (2)
failing to find that Linda was equitably estopped from seeking child support.
In its cross-appeal, the State asserts that the district court erred in ordering Risinger to pay the retroactive child support in monthly installments rather than entering judgment for the full amount due with interest to accrue on the full amount from the date of judgment.
While a paternity action is one at law, the award of child support in such an action is equitable in nature. State on behalf of Joseph F. v. Rial, 251 Neb. 1, 554 N.W.2d 769 (1996). 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 by the trial court. Id.
Appeal: Equitable Estoppel Does Not Apply to Prevent the State From Seeking Child Support on Behalf of Kayla.
Risinger asserts that the district court erred in failing to find that Linda should be equitably estopped from seeking child support. Risinger's argument in favor of equitable estoppel relies at least in part on the existence of an agreement between Risinger and Linda by which Linda would not seek...
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