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Molina v. Salgado-Bustamante

Court of Appeals of Nebraska

July 30, 2013

Nanci Molina, individually and as next friend of Agustin Bustamante-Molina, appellee,
v.
Agustin Salgado-Bustamante, appellant.

1. Appeal and Error. The construction of a mandate issued by an appellate court presents a question of law.

2. Judgments: Appeal and Error. An appellate court reviews questions of law independently of the lower court's conclusion.

3. Actions: Paternity: Child Support: Equity. While a paternity action is one at law, the award of child support in such an action is equitable in nature.

4. Child Support: Appeal and Error. The standard of review of an appellate court in child support cases is de novo on the record, and the decision of the trial court will be affirmed in the absence of an abuse of discretion.

5. Motions for New Trial: Appeal and Error. A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.

6. Judges: Judgments: Appeal and Error: Words and Phrases. A judicial abuse of discretion, warranting reversal of a trial court decision on appeal, requires that the reasons or rulings of a trial court be clearly untenable, unfairly depriving a litigant of a substantial right and just result.

7. Child Support: Rules of the Supreme Court. The main principle behind the child support guidelines is to recognize the equal duty of both parents to contribute to the support of their children in proportion to their respective net incomes.

[21 Neb.App. 76] 8. Child Support: Judgments. Nebraska law requires a trial court to attach the necessary child support worksheets to a child support order.

9. Appeal and Error: Words and Phrases. In appellate procedure, a "remand" is an appellate court's order returning a proceeding to the court from which the appeal originated for further action in accordance with the remanding order.

10. Courts: Appeal and Error. After receiving a mandate, a trial court is without power to affect rights and duties outside the scope of the remand from an appellate court.

11. Child Support: Stipulations. If the court approves a stipulation which deviates from the child support guidelines, specific findings giving the reason for the deviation must be made.

12. Evidence: Appeal and Error. Where credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

Appeal from the District Court for Douglas County: J Russell Derr, Judge.

John J. Heieck and Matthew Stuart Higgins, of Higgins Law, for appellant.

Catherine Mahern and Michael Wallace, Senior Certified Law Student, of Abrahams Legal Clinic, for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

Moore, Judge.

Agustin Salgado-Bustamante (Agustin) appeals from an order of the district court for Douglas County, Nebraska, that was entered after remand from this court following a previous appeal. The new order increased the amounts of retroactive and prospective child support from those contained in the originally appealed order. The district court also retroactively amended its original award of temporary support. For the reasons set forth below, we affirm the district court's award of retroactive support. However, because the district court went beyond the mandate on remand, we reverse the district court's changes to temporary and prospective support and remand the cause for a new trial.

[21 Neb.App. 77] I. FACTUAL BACKGROUND

Nanci Molina (Nanci) and Agustin had a child together, Agustin Bustamante-Molina (Agustin Jr.), born in April 2003. The parties, who never married, later separated, and Nanci brought this paternity action. A temporary order was entered on January 6, 2010, which ordered Agustin to pay temporary support in the sum of $360 per month beginning December 1, 2009.

Trial was held on November 30, 2010. The parties stipulated that Agustin was the father of Agustin Jr., that Nanci would have physical possession of Agustin Jr. subject to Agustin's parenting time as set forth in the parties' mediated parenting plan, and that Agustin would be responsible for $360 per month in prospective child support. The only issue tried to the district court was the amount of retroactive child support Agustin owed. At trial, both Nanci and Agustin testified. The record reveals significant conflict between ...


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