Child Support Enforcement - Sarpy County Nebraska

§43-512.08. Intervention in matters relating to child, spousal, or medical support; when
authorized.
The county attorney or authorized attorney, acting for or on behalf of the State of Nebraska, may
intervene without leave of the court in any proceeding for dissolution of marriage, paternity,
separate maintenance, or child, spousal, or medical support for the purpose of securing an order
for child, spousal, or medical support, modifying an order for child or medical support, or
modifying an order for child support as the result of a review of such order under sections 43-
512.12 to 43-512.18. Such proceedings shall be limited only to the determination of child or
medical support. Except in cases in which the intervention is the result of a review under such
sections, the county attorney or authorized attorney shall so act only when it appears that the
children are not otherwise represented by counsel.
Source: Laws 1976, LB 926, § 10; Laws 1985, Second Spec. Sess., LB 7, § 72; Laws 1991, LB 457, §
12; Laws 1991, LB 715, § 11; Laws 1994, LB 1224, § 54, Laws 2007, LB554, § 41 Effective January 1, 2008
Cammarata v. Chambers, 6 Neb. App. 467, 574 N.W.2d 530 (1998)
Facts: Dad was ordered to pay support pursuant to decree entered in 1984. In 1992 the court
modified the order, switched custody to the dad, and effectively set support at $0 until the
mother became employed. Later the child moved out of Dad’s home and into Mom’s, and Mom
applied for Medicaid. The State then filed an action to establish a child support order pursuant
to Neb. Rev. Stat. § 43-512.03 et seq, alleging the child was now with Mom and in need of
support. Dad appealed, claiming CSE agency had no authority to file for new support order, as
the parties’ 1992 modification order addressed child support.
Held: The state was acting beyond its authority; accordingly, the new support order was
vacated.
The nonexistence of a support order is a prerequisite to an action under Neb. Rev.
Stat. § 43-512.03.
A court has subject matter jurisdiction over an action brought pursuant to Neb. Rev.
Stat. § 43-512.03 only when there is no existing child support order.
If there is an existing child support order, the State is not authorized to file a petition
for payment of support pursuant to Neb. Rev. Stat. § 43-512.03.
[T]he dissolution decree and the modification orders address the issue of child
support. Even if it was the case that the orders provided that no support is due
from either parent, that does not change the fact that there is an existing
support order.
Note: Section 43-512.01 may allow a CSE attorney to intervene to modify the existing child
support order, but this necessarily involves a change in legal custody of the minor child, which
we are expressly prohibited from becoming involved with, and which requires the court to make
a ―best interests‖ determination before placing physical/legal custody of the child with a parent.
This appears to be a ―catch 22‖ for CSE attorneys.
Nebraska v. Garcia, 238 Neb. 455, 471 N.W.2d 388 (1991)
We agree with the Nebraska State Bar Association's advisory opinion that the county
attorney may not represent both the interests of the child and the interests of a
parent when the issue of custody of the child is raised. The county attorney's duties
are clearly set forth in the statutes above. These duties do not include involvement in
the determination of custody of a dependent child.
We do not find any statute in which the Legislature has permitted a judgment for
attorney fees to be entered against the State in an action for child support payments.
… any judgment against the State for these fees violates state sovereignty.
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