State ex rel. Nathaniel R. v. Shane F.

• Decision Date: 05 April 2022
• Docket Number: A-21-368.
• Parties: STATE of Nebraska ON BEHALF OF NATHANIEL R., a minor child, appellee, v. SHANE F., third-party plaintiff, appellant, and Amanda R., third-party defendant, appellee.
• Court: Nebraska Court of Appeals

30 Neb.App. 797

973 N.W.2d 191

STATE of Nebraska ON BEHALF OF NATHANIEL R., a minor child, appellee,

v. SHANE F., third-party plaintiff, appellant,andAmanda R., third-party defendant, appellee.

No. A-21-368.

Court of Appeals of Nebraska.

Filed April 5, 2022.

Avis R. Andrews, Fremont, for appellant.

Richard Register, of Register Law Office, Fremont, for appellee Amanda R.

Pirtle, Chief Judge, and Riedmann and Bishop, Judges.

Bishop, Judge.

I. INTRODUCTION

Shane F. appeals, and Amanda R. attempts to cross-appeal, from the order of the Dodge County District Court modifying Shane's child support obligation for the parties’ minor child, Nathaniel R. We affirm as modified.

Amanda also challenges the district court's "Order Dismissing Show Cause Order," in which the court found Shane was disabled and not in willful and contumacious contempt of court for failure to pay child support. Because Amanda did not timely appeal from that order, we lack jurisdiction over the contempt matter.

II. BACKGROUND

1. ORIGINAL PATERNITY AND SUPPORT ACTION IN 2010

In 2010, the State, on behalf of Nathaniel, filed a complaint against Shane in the Dodge County District Court to establish paternity and support. At the time, Nathaniel, born in 2006, lived in Nebraska with his mother, Amanda, and Shane lived in Texas. Amanda was not named as a party in the proceedings. In its order for support, the district court found that Shane was Nathaniel's father and ordered Shane to pay $503 per month in child support and $83 per month in medical support; the child and medical support payments were to be paid to the Nebraska Child Support Payment Center, and Amanda was to be the payee of the support payments, subject to the assignment provision set forth by Nebraska statute.

2. MODIFICATION AND CONTEMPT ACTIONS

(a) Initial Pleadings and Orders

On July 10, 2019, a "Stipulated Order to Add Third Party Defendant" was entered, and the district court sustained Amanda's motion to be added as a third-party defendant.

On July 16, 2019, Shane filed an application for modification. He alleged that since the 2010 order for support was entered, there had been material and substantial changes in circumstances warranting the modification of that order in that he had been determined to be permanently and totally disabled as of March 13, 2017, by the Department of Veterans Affairs (VA); Amanda had a change in income; each party had a change in circumstances regarding health insurance available for Nathaniel; and the VA or other governmental agencies had paid benefits on behalf of Nathaniel to Amanda for which Shane had not received credit. Shane sought a reduction of his child support obligation, a reduction or termination of his cash medical support obligation, a retroactive modification of his child support obligation back to the date of his disability or other appropriate date, credit for payments made by the VA or any other governmental agency to Amanda, and costs and attorney fees.

On July 24, 2019, the State filed an answer generally denying the allegations in Shane's application for modification; the State prayed for an order dismissing Shane's application for modification. Also on July 24, Amanda filed a "Verified Application for Contempt." She alleged that Shane failed to abide by the 2010 order for support and that, more specifically, he "has failed to make a single voluntary child support payment and is currently $57,802.58 in arrears." A certified copy of a Department of Health and Human Services payment history report was attached to her application. She asked the district court to enter an order citing Shane for contempt and commanding him to appear and show cause why he should not be punished for his willful contempt. She also asked for costs and attorney fees. The next day, the district court filed an order to show cause, directing Shane to appear and show cause why he should not be held in contempt.

On August 8, 2019, Amanda filed an answer to Shane's application for modification; an amended answer and cross-complaint was filed on February 19, 2020. Amanda raised the affirmative defense of unclean hands, alleging that Shane was more than $41,000 delinquent on the day he claimed to be declared disabled, made no voluntary payments on his support order since 2010, and failed to disclose his property, assets, and income for the sole purpose of not paying support. In the portion of her pleading labeled "Cross Complaint for Enforsement [sic] and Contempt," Amanda alleged that pursuant to the 2010 order, Shane was to pay $503 per month in child support and $83 per month in medical support, he failed to make a single voluntary payment of support, and was currently $61,438.68 delinquent in his support payment. She further alleged that Shane had been aware of the 2010 order from the time it was entered and had the ability to pay, but that he had refused to comply with the order. She asked the court for

an order for enforcement of the prior unpaid support by Contempt, setting a day for [Shane] to appear and Show Cause why he should not be held in contempt and jailed for none [sic] compliance of said Order, to assess against him attorney fees, and the cost of this action.

On February 2, 2021, Shane filed a motion for leave to appear telephonically for the trial, "due to his inability to travel due to ongoing health concerns and the Covid pandemic." In its journal entry entered on February 23, the district court granted Shane's motion over Amanda's objection. The court ordered that Shane "may appear at the trial scheduled herein by telephone or by Zoom."

(b) Trial

Trial on the modification and contempt actions was held on March 5 and 10, 2021. Shane appeared by video conference, and his counsel appeared in person. Amanda and her counsel appeared in person. In addition to testimony from Shane and Amanda, numerous exhibits were also received into evidence.

Shane testified that he was 36 years old and the father of Nathaniel, age 13. Shane currently lived in California with his wife and two children, ages 6 and 4; he also has another child, age 11.

Shane testified that the last significant work he had was when he was in the "US Army." In 2006, he was placed on the "temporary disability retired list" because of recurrent generalized seizures that prevented reasonable performance of required duties. According to Shane, "[W]hen a soldier is found to be medically incapable of continuing their duties, they're placed on [the temporary disability retired list] before they are placed on the permanent disability list. This is done in case the condition improves and the soldier can be called back to duty." At the time of Shane's temporary retirement in 2006, Nathaniel was his only child. Shane's medical condition worsened, and he was never able to return to active duty. According to a letter from the VA dated May 29, 2019, Shane was rated as permanently and totally disabled effective March 13, 2017.

Shane received VA disability payments as a result of his temporary, and later permanent, disability. At the time of the district court's August 2010 order of support, the attached child support calculation worksheet included a gross monthly income of $2,774 for Shane, which was labeled as his "VA monthly [b]enefit"; Shane's VA benefit was put in the child support worksheet as taxable income, resulting in a net monthly income of $2,090.57. Since 2010, Shane has done some miscellaneous work. The most he ever received was "somewhere in the area of 2- or $300 a week" from a construction company, but that job only lasted "maybe two and a half months" (he did not specify in which year); Shane said he was physically able to do the job, but because of his seizures, his employer "let [him] go" for safety reasons.

Shane testified that he received periodic increases in the amount of his VA disability benefit which "are determined by the cost-of-living increases that are given to the US Military every year." According to a VA letter dated November 16, 2017, Shane's total monthly VA benefit was $3,706.56 as of April 1, with $200 of that amount apportioned for Nathaniel; the letter states that Shane was being paid as a veteran with four dependents and that his payment included an additional amount for his spouse and three minor children. According to VA letters dated March 10, 2020, and November 24, 2020, Shane's total monthly VA benefit was $4,268.70 as of July 1, 2019, with $400 of that amount apportioned for Nathaniel. The VA letter dated March 10, 2020, shows that the total "[a]llotment" was $600, and Shane testified that $400 was for Nathaniel and the other $200 was for his oldest daughter. On cross-examination, Shane agreed that his current VA benefits are approximately $4,337 per month, and the money is not taxable. According to Shane's testimony on redirect, he receives a monthly allotment from the VA of $200 per child for the two children that currently live in his home; this amounts to $400 total per month.

Shane received a letter dated June 25, 2019, from the Department of Child Support Services Loma Linda, in Loma Linda, California. The letter, regarding Nathaniel, stated, "It has come to our attention that you may be disabled and unable to work. We may be able to close your case if we receive medical proof that you are totally and permanently disabled and have no income or assets available to attach for payment of child support." The letter requested that Shane complete and return an "enclosed Medical Information Verification Report" to help the department determine if Shane's case "is eligible to be closed." Shane said that he sent the requested information. According to a letter from the Department of Child Support Services Loma Linda dated July 22, 2020, Shane's case regarding Nathaniel was "closed" on September 22, 2019. Shane testified, "They closed it here in the State of California and sent it back to Nebraska."

Shane also had a child support case in Pennsylvania regarding his oldest...