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Sellers v. Sellers

Court of Appeals of Nebraska

September 1, 2015


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Appeal from the District Court for Lincoln County: RICHARD A. BIRCH, Judge.

Monelle M. Nichols, of Nichols Law, for appellant.

Stephanie Sellers, Pro se.

Claudine K. Thorne, Deputy Lincoln County Attorney, for intervenor-appellee.

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


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[23 Neb.App. 221] Moore, Chief Judge.


Jason Sellers appeals from the order of the district court for Lincoln County, which modified his child support obligation to Stephanie Sellers, also known as Stephanie Rodriguez, for the support of the parties' minor children. Because we find no abuse of discretion in the court's modification of Jason's child support, we affirm.


Jason and Stephanie were married in February 2001 and are the parents of three minor children. In March 2010, the district court dissolved Jason and Stephanie's marriage, awarded Stephanie custody of the parties' children, and ordered Jason to pay child support of $96 per month. Jason was incarcerated at the time the decree was entered.

In March 2013, Stephanie requested a review of Jason's child support, pursuant to Neb. Rev. Stat. § 43-512.12 (Cum. Supp. 2014), which provides for a review by the Nebraska Department of Health and Human Services (Department) " in cases in which a party has applied for services

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under Title IV-D of the federal Social Security Act . . . to determine whether to refer such orders to the county attorney or authorized attorney for filing of an application for modification." Jason failed to provide adequate financial information to the [23 Neb.App. 222] Department, creating a rebuttable presumption that there had been a material change in his financial circumstances such that his child support obligation should be increased. See Neb. Rev. Stat. § 43-512.14 (Reissue 2008).

On December 11, 2013, following a review by the Department's " Review and Modification Unit," the State of Nebraska filed a complaint for modification of child support, requesting an increase in Jason's monthly child support obligation based on a change in circumstances to an amount consistent with the Nebraska Child Support Guidelines. Jason was personally served with the complaint on January 21, 2014.

After three continuances, two of which were at Jason's request, a modification hearing was held before the district court on June 17, 2014.

At the time of the modification hearing, Jason lived with his current wife, their 1-year-old son, and his 5-year-old stepson. Jason has been involved in his stepson's life since his birth and is the only father this child has ever known. Jason's wife is a stay-at-home mother.

At the time of the decree in March 2010, Jason was incarcerated for assault. The district court overruled Jason's relevance objection to the reason for his incarceration. Jason was released from prison in June 2010. Jason is now employed at a company where he earns $16.12 per hour and works 40 hours per week. He contributes to a retirement account through his employment at a rate of 4 percent. Jason has health insurance available to him through his employment, which insurance he provides for himself and his children. To provide this health insurance for the three minor children in this case, Jason pays an additional $135 per month above what it costs him to provide health insurance for himself.

Jason has been diagnosed with diverticulitis, and he testified about his costs for medication and surgeries resulting from the condition. Jason underwent three surgeries in the year prior to the hearing. According to Jason, his medical [23 Neb.App. 223] providers have told him that the issues that led to his second and third surgeries could happen again and that it was " [j]ust a matter of time." Jason testified that over the last year, his medical expenses have been $30,000 or more, which expenses he believed included the cost that was covered by health insurance. Jason offered exhibit 1, which he stated contained his medical bills for the previous 1 1/2 years. According to a typewritten summary page included in the exhibit, Jason's out-of-pocket medical costs from January through June 2014 were $13,734.29. The State objected to exhibit 1 because it included several bills for individuals other than Jason. The district court received exhibit 1 into evidence, stating that it would not take any irrelevant portions of the exhibit into account in reaching its decision. Jason testified that he did not know the limits, deductible, or maximum out-of-pocket expenses under his health insurance policy, as he did not pay attention to any such documentation received from his employer.

At the time of the modification hearing, Jason was current on his child support payments. He did not feel he would be able to pay child support of $712 per month as reflected in the child support calculation submitted by the State, and he testified that his ongoing medical bills would make it difficult for him to pay any

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amount of retroactive child support. Jason testified that he could possibly afford child support of $176 as reflected in one of his child support calculations.

Stephanie has been a respite provider for the past 5 years, but at the time of trial did not have current employment in that capacity because the individual she had been caring for had been placed in a nursing home. Stephanie earned $11,712 in 2013 and $13,899 in 2012. Stephanie testified that she does not have an illness or disability that prevents her from working full time. She receives public assistance in the form of food stamps, and the parties' children are covered under Medicaid. She has also received some assistance from her parents. She [23 Neb.App. 224] has a boyfriend who is involved in the children's lives and " helps out."

Stephanie testified about her understanding of the health insurance Jason was providing for the children. According to Stephanie, the insurance became effective April 1, 2014. Based on documentation she received from the insurance company and discussion with Jason, Stephanie testified that the deductible was $4,500 for a family and $2,250 for a person. Stephanie understood the ...

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