Child Support Enforcement - Sarpy County Nebraska

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Held: State failed to meet its burden of proof to show parent had earning capacity of minimum wage income. [E]arning capacity should be used only if there is evidence that the parent can realize that capacity through reasonable efforts. The party seeking the modification has the burden to produce sufficient proof that a material change of circumstances has occurred that warrants a modification. The parties ask us to decide whether the material change of circumstances must exist at the time of filing of the complaint to modify or at the time of the modification trial. We hold that the change in circumstances must exist at the time of the modification trial for two reasons. First, because the court’s decision to modify child support must be based upon the evidence presented in support of the complaint to modify. Second, because the change in circumstances cannot be temporary. it would be improper for the court to focus on anything but the most recent circumstances ascertainable from the evidence. …such change of circumstances should exist at the time of trial and not merely at the time of the complaint to modify. Lee’s decrease in income since the initial complaint to modify was not due to her fault or voluntary choice. On the contrary, Lee has remained unemployed despite numerous efforts on her part to find employment. Although Lee’s employment …lasted for more than 3 months, given that it had effectively terminated, it could not be reasonably expected to last for an additional 6 months. Thus, the State’s evidence failed to trigger the rebuttable presumption of a change of circumstances under § 4-217. See dissent: The Nebraska Supreme Court has held that a material change in circumstances is a concept which eludes precise, concrete definition. See Dobbins v. Dobbins, 226 Neb. 465, 411 N.W.2d 644 (1987). Cooper v. Cooper, 8 Neb. App. 532, 598 N.W.2d 474 (1999) the trial court did not abuse its discretion when considering the earning capacity of a mother, who chose to work only part time in order to spend more time with her children, rather than her actual income when no specific evidence showed an inability to spend adequate time with the children while she was working 40 hours per week. Dworak v. Fugit, 1 Neb. App. 332, 495 N.W.2d 47 (1992) Holding: Earning capacity, and not mere income, is what a court should focus on The amount of child support awarded is a function of the status, character, and situation of the parties…. The primary consideration in determining the level of child support payments is the best interests of the child. Henke v. Guerrero, 13 Neb. App. 337, 692 N.W.2d 762 (2005) Child support may be based on a parent’s earning capacity when a parent voluntarily leaves employment and a reduction in that parent’s support obligation would seriously impair the needs of the children. Earning capacity may be used as a basis for an initial determination of child support under the Nebraska Child Support Guidelines where evidence is presented that the parent is capable of realizing such capacity through reasonable effort. - 62 -
Lainson v. Lainson, 219 Neb. 170, 362 N.W.2d 53 (1985) Earning capacity, as used in [§ 42-364 (4)], means the overall capability of a parent to make child support payments based on the overall situation of the parent making such payments, including investment income, and is not limited to the ability to earn a wage. Mehne v. Hess, 4 Neb. App. 935, 553 N.W.2d 482 (1996) The entire net amount received from personal injury settlement award constituted income for child support purposes. Rauch v. Rauch, 256 Neb. 257, 590 N.W.2d 170 (1999) The guidelines provide that if applicable, earning capacity may be considered in lieu of a parent’s actual, present income. Nebraska Child Support Guidelines, paragraph D. This is especially true when it appears that the parent is capable of earning more income than is presently being earned. See also Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004). The court did not abuse its discretion when it deviated from the guidelines by not considering farming losses when calculating the noncustodial parent’s monthly income. Robbins v. Robbins, 3 Neb. App. 953, 536 N.W.2d 77 (1995) Basing the child support on the speculation of a future job and income is contrary to the dictates of the guidelines. Shiers v. Shiers, 240 Neb. 856, 485 N.W.2d 574 (1992) There is statutory and judicial authority for considering a parent's net earning capacity rather than his or her actual net income in determining child support. See, Neb.Rev.Stat. § 42-364(6), Ristow v. Ristow, 152 Neb. 615, 41 N.W.2d 924 (1950). the Nebraska Supreme Court has held that a court may and should deviate from the child support guidelines when a parent's earning capacity exceeds her or his actual earnings and the application of the guidelines would result in an unfair and inequitable support order. State v. Porter, 259 Neb. 366, 610 N.W.2d 23 (2000) Pursuant to [§42-364 (4)], when earning capacity is used as a basis for an initial determination of child support under the Nebraska Child Support Guidelines, there must be some evidence that the parent is capable of realizing such capacity through reasonable effort. Emancipation & Related 42-371.01. Duty to pay child support; termination, when; procedure; State Court Administrator; duties. - 63 -
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Have a Wonderful Summer! Child Supp
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Table of Contents:* * (accessible v
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Table of Contents (continued): Mult
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A Note for Legal Practitioners: Mem
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Overview/ IV-D Attorney Duty Gangwi
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Neb. Rev. Stat. § 7-105(2) (Reissu
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See Lehr v. Robertson, 463 U.S. 248
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their attorney of record and, excep
Page 17 and 18: State ex rel. Lemon v. Gale, 272 Ne
Page 19 and 20: disobedience as an essential elemen
Page 21 and 22: student loan that the noncustodial
Page 23 and 24: having jurisdiction to compel the s
Page 25 and 26: Drew on Behalf of Reed v. Reed, 16
Page 27 and 28: income, is to be considered in dete
Page 29 and 30: § 48-802 - Statutes, General Rules
Page 31 and 32: from arriving on the scene, either
Page 33 and 34: In equity cases trial judges should
Page 35 and 36: Similarly, a party who does more th
Page 37 and 38: Common Law Marriages States that au
Page 39 and 40: Constitutional Issues/ Statutory In
Page 41 and 42: Little v. Streater, 452 U.S. 1, 101
Page 43 and 44: In re Interest of Thomas M., 282 Ne
Page 45 and 46: See Smeal Fire Apparatus Co. v. Kre
Page 47 and 48: Because a conditional commitment is
Page 49 and 50: obligation when he currently has an
Page 51 and 52: An order modifying child custody wh
Page 53 and 54: Haynes v. Haynes, 205 Neb. 35, 286
Page 55 and 56: Stuhr v. Stuhr, 240 Neb. 239, 481 N
Page 57 and 58: By failing to take the genetic test
Page 59 and 60: State on behalf of L.L.B. v. Hill,
Page 61 and 62: Due Process Conn v. Conn, 13 Neb. A
Page 63 and 64: or court order of emancipation or a
Page 65 and 66: Henderson v. Henderson, 264 Neb. 91
Page 67: they have income. There is no floor
Page 71 and 72: Millatmal v. Millatmal, 272 Neb. 45
Page 73 and 74: 24A Am. Jur. 2d Divorce and Separat
Page 75 and 76: [T]he fact that [the custodial pare
Page 77 and 78: The same principles that apply with
Page 79 and 80: “[C]oncerns regarding the stigma
Page 81 and 82: (a) The interpretation of the suppo
Page 83 and 84: make the appointment. In other case
Page 85 and 86: Guidelines Issues (Including suffic
Page 87 and 88: Note: In July 2008 the Federal Chil
Page 89 and 90: Erica J. v. Dewitt, 265 Neb. 728, 6
Page 91 and 92: Morrill County v. Darsaklis, 7 Neb.
Page 93 and 94: Any deviation from the guidelines m
Page 95 and 96: to also pay reimbursement for reaso
Page 97 and 98: or law of another state substantial
Page 99 and 100: §43-1711 Income, defined. Income s
Page 101 and 102: Simpson v. Simpson, 275 Neb. 152, 7
Page 103 and 104: §42-364.09. Child support; withhol
Page 105 and 106: §43-1709. Employer or other payor,
Page 107 and 108: (6) That the employer or other payo
Page 109 and 110: income withholding for current supp
Page 111 and 112: Title IV-D Division of the Departme
Page 113 and 114: Held: The state was acting beyond i
Page 115 and 116: (3) Any juvenile…whose parent, gu
Page 117 and 118: proceeding or a new action. Since t
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State, Dept. of Social Services v.
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amount equal to the support due and
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Source: Laws 1975, LB 212, § 8; La
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The second is used in aid of an exe
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Halsted v. Halsted, 169 Neb. 325, 9
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Neb. Ct. R. § 4-217 Modification.
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she had sufficient resources to pro
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If applicable, earning capacity may
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Gress v. Gress, 274 Neb. 686, 743 N
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A district court may modify a regis
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Peter v. Peter, 262 Neb. 1017, 637
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See also: Wilkins v. Wilkins, 269 N
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Under certain circumstances, an ame
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A party seeking to modify a dissolu
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(2)The department, through its agen
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§ 43-1408.01 Notarized acknowledgm
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§43-1414. Genetic testing; procedu
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Carlson v. Bartels, 143 Neb. 680, 1
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as to the paternity of the minor ch
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Jones v. Paulson, 261 Neb. 327, 622
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in loco parentis to the child. See,
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(b) If the court orders income with
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enforcement, for example, we are fo
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ights of visitation. Later mother c
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Matchett v. Dunkle, 244 Neb. 639, 5
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Connecticut, the District of Columb
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In order to stand in loco parentis,
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Of particular interest is the requi
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Social Security (Also see Equity, E
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Calculate support this way: 1. Mom
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Spousal support, when used in the c
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punishment for sexual assault in th
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Hall v. Hall, 238 Neb. 686, 472 N.W
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interests of a child are served by
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§42-722. Private counsel. An indiv
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the following three conditions are
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Source: Laws 1993, LB 500, § 43 §
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Despite a basic difference in the n
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Conrad v. Conrad, 208 Neb. 588, 304
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Mace v. Mace, 13 Neb. App. 896, 703
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In re Interest of Chance J., 279 Ne
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per hour, two hour minimum. C. (1)
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(3) If, regardless of whether payme
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Rule 21 adopted April 16, 2008. Ren
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Nebraska Information System (NIS):
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web site: www.usmc-mccs.org/contact
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FIPS FPLS IRG IV-D JUSTICE MSFIDM N
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Child Support Enforcement - Sarpy County Nebraska

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