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State ex rel. Andrew D. v. Bryan B.

Court of Appeals of Nebraska

May 26, 2015

STATE OF NEBRASKA ON BEHALF OF ANDREW D., A CHILD UNDER 18 YEARS OF AGE, APPELLEE,
v.
BRYAN B., DEFENDANT AND THIRD-PARTY PLAINTIFF, APPELLANT, AND MONICA D., THIRD-PARTY DEFENDANT, APPELLEE

Page 250

Appeal from the District Court for Douglas County: GREGORY M. SCHATZ, Judge.

Grant A. Forsberg, of Forsberg Law, P.C., L.L.O., for appellant.

Julie Fowler, of Child Support Enforcement Office, for appellee State of Nebraska.

Michael B. Lustgarten, Britt H. Dudzinski, and A. Jill Stigge, Senior Certified Law Student, of Lustgarten & Roberts, P.C., L.L.O., for appellee Monica D.

MOORE, Chief Judge, and INBODY and PIRTLE, Judges.

OPINION

Page 251

[22 Neb.App. 915] Pirtle, Judge.

INTRODUCTION

Bryan B. appeals from an order of the district court for Douglas County determining custody and child support for his minor child, Andrew D. Bryan challenges the court's child support calculation, taking issue with the health insurance deduction given to the child's mother, Monica D., and the income figures used for both parties. He also challenges a provision in the order requiring him to submit to random drug tests at Monica's request. Based on the reasons that follow, we affirm in part as modified, and in part reverse and remand with directions.

BACKGROUND

Bryan and Monica are the biological parents of Andrew, born in 2011. In November 2012, the State on behalf of Andrew filed a complaint to establish paternity and support. Both Bryan and Monica filed an answer and cross-claim.

Page 252

In May 2013, Monica filed a motion asking the court to enter an order requiring Bryan to submit to hair follicle drug testing. Monica alleged that Bryan had initially voluntarily agreed to comply with such testing, but later refused after such testing was set up and paid for. The motion also requested temporary orders regarding physical and legal custody, visitation, [22 Neb.App. 916] child support, daycare expenses, health insurance coverage for Andrew, and attorney fees.

The court entered a temporary order in June 2013, awarding Monica temporary sole legal and physical custody, ordering Bryan to pay child support and 50 percent of daycare expenses, ordering Monica to provide health insurance for Andrew if available through her employer, and ordering Bryan to submit to a hair follicle drug test or a urinalysis within 24 hours of Monica's request at a facility of her choice.

Bryan submitted to a drug test in June 2013, the results of which were negative for drugs, and another test in October 2013, the results of which were positive for marijuana.

Trial was held on the complaint to establish paternity and support in December 2013. The evidence showed that Bryan is a self-employed mechanic and owns an automobile repair business. Bryan admitted that he has failed to file personal and business income tax returns since he started his business in 2008, stating that he is a " poor paper manager." Accordingly, there were no income tax returns presented to the court to use in determining Bryan's income for child support purposes.

Bryan testified that after paying the bills of his business, he makes about $2,000 per month in income. He also presented exhibit 7, an estimated income statement for his business for the years 2012 and 2013. The exhibit showed a net income of $14,727.60 for 2012, a net income of $18,333.60 for 2013, and monthly net income of $1,527.80. Brian presented a second exhibit, exhibit 8, which showed his monthly deposits and withdrawals from December 2011 through November 2013 for his business checking account. Between December 2011 and December 2012, his monthly deposit average was $17,856.89 and his monthly withdrawal average was $17,399.37. Between January 2013 and November 2013, his monthly deposit average was $20,572.30 and his monthly withdrawal average was $20,698.67. Bryan further presented exhibit 6, an estimated income statement for the building where his business is located, which building he owns. It showed a net loss of $34,989.88 for 2013, as well [22 Neb.App. 917] as a monthly net loss of $2,915.82. Monica objected to the admission of all three exhibits, and the court overruled the objection, stating it would give the exhibits the value the court believed they deserved.

Bryan testified that he leases part of the building where his business is located. He also has some storage units on the property that he rents out. Bryan also owns a two-unit building with his parents that they rent out. Bryan testified that he nets about $100 per month from the building. Bryan testified that he also owns a " double-wide modular, or trailer house," that he was in the process of renovating at the time of trial. He hoped to rent it out after the construction was done. He also owns a piece of unimproved real estate with his brother.

Bryan testified that between his business and his rental property, $2,500 was a reasonable amount of monthly income to use for ...


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