Willers ex rel. Powell v. Willers

Decision Date18 December 1998
Docket NumberNo. S-97-788,S-97-788
PartiesBrad Lee WILLERS, a minor child, By and Through his mother and next friend, Carole L. POWELL, appellee, v. Gary Lee WILLERS, appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

3. Summary Judgment: Appeal and Error. In reviewing an order granting a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists.

4. Statutes. Statutory interpretation presents a question of law.

5. Judgments: Appeal and Error. In connection with questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

6. Statutes: Appeal and Error. With respect to statutory interpretation, the court will, if possible, try to avoid a construction which would lead to absurd, unconscionable, or unjust results.

7. Statutes: Intent. When construing a statute, a court must look to the statutory objective to be accomplished, the evils and mischiefs sought to be remedied, and the purpose to be served, and then must place on the statute a reasonable or liberal construction that best achieves the statute's purpose, rather than a construction that defeats the statutory purpose.

8. Statutes: Legislature: Intent: Appeal and Error. In considering and applying a statute, courts must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language thereof, considered in its ordinary sense.

9. Statutes: Legislature: Intent. The components of a series or collection of statutes pertaining to a certain subject matter which are in pari materia may be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions of the act are consistent, harmonious, and sensible.

10. Child Support: Legislature: Intent. Neb.Rev.Stat. § 43-1402 (Reissue 1993), which is in pari materia with Neb.Rev.Stat. § 43-512.04 (Cum.Supp.1994), exhibits a legislative intent to provide children born out of wedlock child support retroactively to the date of birth.

11. Child Support. The plain words of Neb.Rev.Stat. § 43-1402 (Reissue 1993) require that out-of-wedlock children be supported to the same extent and in the same manner as children born in wedlock.

12. Parent and Child. Parents have a duty to provide their children with the basic necessities of life.

13. Child Support: Modification of Decree: Time. The general rule in Nebraska has been to allow a modification of a child support order prospectively from the time of the modification itself.

14. Appeal and Error. Error without prejudice provides no ground for appellate relief.

15. Rules of the Supreme Court: Attorney Fees. Neb. Ct. R. of Prac. 9F (rev.1996) requires that any person who claims the right to an attorney fee in a civil case appealed to the Nebraska Supreme Court must file a motion for the allowance of such a fee supported by an affidavit which justifies the amount of the fee sought.

Forrest F. Peetz, of Peetz & Peetz, Oneill, for appellant.

Gina L. Schaecher, of Domina Law, P.C., Omaha, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

HENDRY, C.J.

QUESTION PRESENTED

The question presented is whether the parental duty to support minor children can be enforced retroactively to the date of the divorce decree where a child is born in wedlock and the parents are subsequently divorced, but the divorce decree is silent on the issue of child support.

BACKGROUND

Gary Lee Willers and Carole L. Powell, formerly known as Carole L. Willers, were married on August 11, 1978, in Plainview, Nebraska. One child, Brad Lee Willers, was born to the marriage on December 13, 1979. From Brad's birth until approximately July 14, 1982, the parties lived together as a family in the State of Nebraska. On July 15, Powell received a telephone call from a relative informing her that her mother was ill. The relative informed Powell that she was needed to help care for her mother who was On September 8, 1982, Powell filed a petition for dissolution of marriage in the Superior Court for King County, Washington. Willers received personal service of summons and the petition in Nebraska, yet failed to file any responsive pleadings. On June 10, 1983, Willers was personally served with a motion and order for default and presentation of findings, conclusions of law, and a decree of dissolution. On September 19, the Washington court dissolved the marriage and awarded Powell permanent care, custody, and control of Brad, subject to Willers' reasonable visitation rights. The Washington court refused to grant Powell a child support order, finding that "[t]his court has no personal jurisdiction over [Willers] to make an award against him regarding child support."

living in the State of Washington. Powell asked Willers if she could go to Washington to be with her mother and, further, if she could take Brad with her. Willers consented, and Powell, together with her 21/2-year-old son, traveled to Washington.

After the divorce, Powell supported Brad by working outside the home as a drug and alcohol counselor. A year later, in 1984, she married Ed Powell. She continued working outside the home until sometime in 1984 when Brad's extreme asthmatic condition required her immediate and constant attention. From 1984 until 1988, Powell did not work so she could stay at home and care for Brad.

In 1988, Brad's asthmatic condition improved to the point where he was able to attend school on a regular basis. As a result, Powell was also able to return to work. However, on October 15, 1990, Powell was permanently injured in an automobile accident. Due to the injuries sustained in the accident, Powell's medical condition prevented her from retaining employment outside the home. From this time forward, the Powell family was supported solely by Ed Powell, other family members, and friends.

Willers concedes that he contributed no support to Brad's upbringing other than attempting to send Brad a card, a $50 money order, a book, and a toy tractor. Willers testified that the birthday card and money order were returned to him unopened, but he is unsure whether Brad ever received the other items. Willers also conceded that even though he "had an idea" where Brad was located, he made no attempt to make arrangements to pay child support after the divorce.

Due to the level of Willers' contributions, Powell stated that Brad urged her to seek child support on his behalf. Powell testified that she did not want to bring the action, but upon Brad's insistence she began the process of trying to obtain child support. On April 23, 1996, Powell filed suit on behalf of Brad in the Antelope County District Court against Willers, seeking to establish retroactive and prospective child support. Willers filed an amended responsive pleading and alleged the claim for support was barred under the equitable theory of laches.

Powell filed a reply to Willers' response and reaffirmed that she had brought the action on behalf of Brad. On March 27, 1997, Willers filed a motion for partial summary judgment, alleging that there were no genuine issues of material fact and that he was not liable for retroactive child support prior to the date the petition for child support was filed in the Antelope County District Court. Powell also filed a motion for partial summary judgment and urged the court to award her retroactive and prospective child support.

The district court heard both motions and in its written order of May 22, 1997, determined there was no genuine issue of material fact regarding Willers' liability for retroactive and prospective child support and entered judgment in favor of Powell. In support of the district court's decision, the district court found that no support order was entered at the time the divorce decree was granted because the Washington court lacked personal jurisdiction over Willers and that no other court had exercised jurisdiction to enter a support order. The district court further found that Willers had a duty to support Brad and that he had failed to provide financial support since the marriage dissolution. The district court also found that Willers was able bodied and capable of providing support at all relevant times.

The case proceeded to trial to determine the overall amount of child support to be awarded and to determine Willers' liability for costs, attorney fees, and expenses. In its judgment filed July 14, 1997, the district court calculated child support by applying the Nebraska Child Support Guidelines to the parties' average monthly income figures. From these calculations, the court determined Willers' overall retroactive and prospective child support obligation and ordered him to pay the sum of $34,082.08 as retroactive child support and $159 per month in future support. The district court also awarded Powell $2,000 in attorney fees and taxed the costs of the proceedings to Willers.

Willers perfected his appeal, and on October 14, 1997, filed a petition to bypass the Nebraska Court of Appeals. We granted Willers' petition to bypass and removed the case.

ASSIGNMENTS OF ERROR

Willers contends, rephrased and summarized, that the district court erred in (1) awarding child...

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