Weaver v. Compton

Decision Date01 February 2000
Docket NumberNo. A-98-1269.,A-98-1269.
Citation605 N.W.2d 478,8 Neb.App. 961
PartiesElisa C. WEAVER, individually and as next friend of Devon E. Weaver, a minor child, appellant v. Don Martin COMPTON III, appellee.
CourtNebraska Court of Appeals

Van A. Schroeder and Cindy Bassett-McGann, of Bertolini, Schroeder & Blount, Bellevue, for appellant.

Edith T. Peebles and Lisa M. Line, of Brodkey, Cuddigan, Peebles & Kaplan, Omaha, for appellee.

HANNON, MUES, and INBODY, Judges.

HANNON, Judge.

INTRODUCTION

On March 21, 1997, Elisa C. Weaver sued Don Martin Compton III to establish the paternity of her daughter, Devon E. Weaver, who was born on March 27, 1992, to obtain child support for Devon and other relief. At trial, Don stipulated to paternity. The trial court determined paternity and, inter alia, awarded custody to Elisa with visitation to Don, awarded Elisa $440 per month child support, and required Don to pay 50 percent of any work-related day-care expenses and 50 percent of nonreimbursed medical and dental expenses. The trial court denied retroactive support, but awarded Elisa $3,080 as "arrearage," payable at $40 per month, and required each party to pay his or her own attorney fees. Elisa appeals, alleging the trial court erred in not awarding retroactive child support, retroactive day-care expenses, retroactive medical expenses, and attorney fees. We conclude that the $3,080 arrearage could be nothing other than an award for retroactive support; that the $3,080 sum was a reasonable award in view of the payments Don and his parents made for the support of Devon; that Elisa did not pray for a retroactive allowance of day-care and medical expenses and that therefore, the court did not err in not allowing them; but that the trial court erred in not allowing Elisa attorney fees. We therefore affirm the trial court's order, except the denial of attorney fees, which we modify to allow Elisa a reasonable fee.

BACKGROUND

In 1992, Elisa lived with her parents in San Diego, California, where she gave birth to Devon. Elisa testified that after Devon was born, Don paid one-half of the birthing expenses and child support for 3 months, but that after that, he did not pay anything until September 1994. After September 1994, Elisa did receive support payments from Don personally and through Don's mother and stepfather. Those amounts will be summarized later in this opinion.

Elisa now lives with Devon in Bellevue, Nebraska. Elisa is employed as a claims analyst at a bank, and she provides health insurance for Devon. Devon was born with congenital hypothyroidism, which requires ongoing medical care. At the time of trial, Devon was attending school, and day-care expenses for her averaged approximately $79 a week.

In 1992, Don moved from Omaha to Virginia. Don has visited Devon approximately three times in 6 years, the most recent visitation occurred in February 1997. Don testified that in 1993, he was a full-time student but did not finish college and that at the time of trial, he was employed as a "membership cashier." Don's gross income and net monthly income will be summarized later in this opinion.

Don testified that in 1992, he and Elisa entered into a financial agreement requiring him to provide $200 a month child support for Devon. Don testified that he could have added Devon to his insurance policy so that Devon would be covered under two policies but that after talking to Elisa about it, she felt it was unnecessary because she had her own insurance. In May 1997, Don was married, and he now has two stepchildren, ages 9 and 11.

Brenda Trask, Don's mother, testified that since Devon's birth, Elisa had occasionally called her asking for assistance. Brenda testified that she and her husband provided Elisa with an apartment, paid for utility bills on occasion, and loaned her approximately $600. Brenda and her husband also provided Elisa with a car, which they delivered to Elisa in Omaha.

Brenda testified that she and her husband traveled from Virginia to Omaha once or twice a year to visit Devon and that they were happy to care for Devon. When they came, they purchased clothing, toys, and other items for Devon. Brenda also testified that upon request, they provided Elisa with payments for medical bills for Devon, but that she did not know whether Elisa ever received any reimbursement from her health-care provider. Brenda and her husband also made payments for the support of Devon, which will be summarized later.

The trial court determined (1) that Don is the natural father of Devon and that Don should pay child support in the amount of $440 commencing on October 1, 1998; (2) that an "arrearage" in the amount of $600 be paid at the rate of $40 per month commencing October 1, 1998, until paid in full; (3) that Elisa was not entitled to retroactive child support dating back to the birth of Devon because the doctrine of equitable estoppel precluded her; (4) that Don be awarded specific visitation with Devon; and (5) that both parties pay for their own attorney fees and that all costs of this action be charged to Don. By supplemental order filed September 30, 1998, the trial court modified the decree on its own motion, providing (1) that the arrearage be increased to $3,080 to be paid at the rate of $40 a month and that such arrearage "shall not be subject to interest in the gross amount, but shall become subject to interest for non-payment of any installment"; (2) that Don shall be responsible for 50 percent of any work-related day-care expenses; (3) that Don shall be responsible for 50 percent of the nonreimbursed medical and dental expenses; and (4) that Don carry Devon on any health insurance that is available through his employment.

ASSIGNMENTS OF ERROR

Elisa appeals, alleging that the lower court erred when it (1) determined that Don satisfied his oral agreement with Elisa to pay child support for Devon; (2) determined Elisa was precluded from an additional amount of retroactive child support under the doctrine of estoppel; (3) failed to determine retroactive child support pursuant to the Nebraska Child Support Guidelines; (4) failed to calculate Don's share of day-care costs since the birth of Devon pursuant to the guidelines; (5) failed to calculate Don's share of medical expenses incurred on behalf of Devon pursuant to the guidelines; (6) credited certain amounts of money and items paid to Elisa by Don's parents toward Don's child support obligation; and (7) failed to award Elisa attorney fees.

Elisa's first assignment of error alleges that the lower court erred when it determined that Don had satisfied his oral agreement with Elisa to pay child support for Devon. Elisa's brief does not contain any legal or factual discussion regarding this claimed error. Errors assigned but not argued will not be addressed. Van Ackeren v. Nebraska Bd. of Parole, 251 Neb. 477, 558 N.W.2d 48 (1997); Goolsby v. Anderson, 250 Neb. 306, 549 N.W.2d 153 (1996). We note that to an extent, this issue is considered as a necessary part of other issues discussed below.

STANDARD OF REVIEW

While a paternity action is one at law, the award of child support in such an action is equitable in nature. Sylvis v. Walling, 248 Neb. 168, 532 N.W.2d 312 (1995).

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. State on Behalf of S.M. v. Oglesby, 244 Neb. 880, 510 N.W.2d 53 (1994).

The ultimate test for determining the appropriateness of awards of alimony and child support is reasonableness as determined by the facts of each case, and the trial court's determination normally will be affirmed in the absence of an abuse of discretion. Baratta v. Baratta, 245 Neb. 103, 511 N.W.2d 104 (1994).

DISCUSSION

Retroactive Child Support.

Elisa asserts in her third assignment of error that the lower court erred when it failed to determine retroactive child support in the matter pursuant to the Nebraska Child Support Guidelines.

Child support in a paternity action is to be determined in the same manner as in cases of children born in lawful wedlock. Neb.Rev.Stat. § 43-1402 (Reissue 1998). An out-of-wedlock child has the statutory right to be supported to the same extent and in the same manner as a child born in lawful wedlock; the resulting duty of a parent to provide such support may, under appropriate circumstances, require the award of retroactive child support. State on Behalf of Joseph F. v. Rial, 251 Neb. 1, 554 N.W.2d 769 (1996). The requirement of support begins at the time of the birth of the child, whether the child is born in lawful wedlock or otherwise. State on Behalf of Matchett v. Dunkle, 244 Neb. 639, 508 N.W.2d 580 (1993).

The Nebraska Supreme Court has held that it is "entirely appropriate to use the guidelines in determining the amount of retroactive support to award a child born out of wedlock." Sylvis, 248 Neb. at 174, 532 N.W.2d at 316. Additionally, the Supreme Court has also held that the guidelines are "presumptively applicable in the setting of child support in a paternity action." Id.

Under paragraph C of the Nebraska Child Support Guidelines, the Supreme Court provides that the guidelines shall be applied as a rebuttable presumption and that child support orders shall be established in accordance with the guidelines unless one or both parties have produced sufficient evidence to rebut the presumption that the guidelines should be applied.

We summarize the evidence of Don's and Elisa's incomes from 1992 to 1997 in the following table:

Don's Don's Elisa's Elisa's Gross Yr. Net Gross Yr. Net Year Income Monthly Income Monthly 1992 $11,931 $ 757 $ 8,863 $ 601 1993 0 0 20,307 1,374 1994 12,317 832 15,097 1,062 1995 19,818 1,395 11,837 857 1996 25,649 1,832 15,003 1,084 1997 29,964 1,992 16,255 1,172

The following table shows what would have actually been due under the guidelines for the applicable year (assuming that the parties'...

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    • United States
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    ...in lawful wedlock is liable for its support.See, also, Henke v. Guerrero, 13 Neb.App. 337, 692 N.W.2d 762 (2005); Weaver v. Compton, 8 Neb.App. 961, 605 N.W.2d 478 (2000). The district court should have treated this action simply as a child support modification case filed by the legal fathe......
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