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Appeal from the District Court for Buffalo County: JOHN P. ICENOGLE, Judge.
Jonathan R. Brandt, of Anderson, Klein, Swan & Brewster, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLERLERMAN, and CASSEL, JJ. MILLER-LERMAN, J., concurring.
[292 Neb. 354] McCormack, J.
I. NATURE OF CASE
Shawn R. Erpelding was convicted in a jury trial in the district court for Buffalo County, Nebraska, of four counts of criminal nonsupport under Neb. Rev. Stat. § 28-706 (Reissue 2008) for failure to pay 4 months of child support totaling $900. After his sentences were enhanced by the habitual criminal statute, Neb. Rev. Stat. § 29-2221 (Reissue 2008), he was sentenced to concurrent terms of 10 to 15 years on each count. Erpelding appeals both his convictions and his sentences.
On May 14, 2012, Erpelding filed a complaint with the district court to establish paternity, custody, visitation, and child support of his 4-year-old daughter, Grace Erpelding, who was born out of wedlock. In July 2012, the court entered a temporary
parenting plan granting primary physical and legal custody of Grace to her mother, Diane Southall. On August 20, the court ordered Erpelding to pay temporary child support in the amount of $225 per month.
The district court later held a final hearing on the pleadings to establish paternity, custody, parenting time, and child support. Despite adequate notice of the hearing, Erpelding did not appear. Pursuant to an order filed July 15, 2013, custody was awarded to Southall. Erpelding was then ordered to pay child support in the amount of $379 per month. The July 15 order did not mention the temporary child support obligation or any arrearages.
Erpelding failed to make any payments on the temporary support order for over a year. He also did not make any payments on the July 15, 2013, child support order during that time. On August 5, he was charged with criminal nonsupport pursuant to § 28-706 based on his failure to pay the first 4 months of the temporary child support obligation. He was also [292 Neb. 355] charged with being a habitual criminal per § 29-2221 in the information filed September 9.
1. Temporary Child Support Order
The journal entry filed August 20, 2012--the temporary child support order--was entered into evidence at trial. It reflects that Erpelding failed to provide adequate evidence of his income for the district court to determine the amount of temporary child support he was to pay:
[Erpelding] has provided the court with an affidavit which is essentially, unenlightening. . . . Erpelding states that he is and has been engaged in a carpentry business for a number of years. He has not, apparently, filed income tax returns since tax year 2008. He states that his books reflect that he essentially breaks even in his business, though he admits he has had the ability to withdraw adequate funds to support his family prior to the departure of . . . Southall from his home. Essentially, the court is unable to determine the actual extent of any income being earned by . . . Erpelding and has been advised that . . . Southall has no current earning capacity. Absent a better showing of actual income, profit, and the nature to which business income has been utilized for personal expenses, the court has no real alternative but to pluck a number out of the air.
Erpelding did not attempt to appeal that temporary child support order or the July 15, 2013, judgment.
2. Efforts to Collect
Southall began to receive Aid to Dependent Children (ADC) assistance for Grace through the Department of Health and Human Services (DHHS) in August 2012. By operation of law, child support was assigned to DHHS. DHHS automatically referred Erpelding's case to Jann Davidson, a support enforcement officer with the Buffalo County Attorney's office.
[292 Neb. 356] As an enforcement officer, Davidson has the authority to take a number of enforcement actions, including suspending delinquent parties' operator's licenses, as well as professional and recreational licenses. She apparently took such action against Erpelding. On December 13, 2012, Erpelding received a notice of intent to suspend his operator's and recreational licenses due to his delinquent child support payments. This notice was in addition to the regular notices that Erpelding received monthly.
In March 2013, Erpelding's operator's and recreational licenses were both suspended.
Despite Davidson's efforts, she received no payments and no communication from Erpelding. She eventually referred his case for criminal prosecution.
On October 8, 2013, 2 months after Erpelding was charged with criminal nonsupport, Erpelding paid $857 in child support. About a week after his payment, he contacted Davidson to find out how to get his operator's license back. Davidson testified that her office usually requires 3 months' worth of payments, a withholding, and at least one payment from that withholding before it will certify compliance with the Department of Motor Vehicles. But, in this case, Davidson agreed to give Erpelding credit for the $857 in payments he had already made and to allow his license to be reinstated if he let her put into place a withholding from his employment. Erpelding disclosed to Davidson the identity of one of his employers, and Davidson was able to initiate the withholding. In addition to the $857 payment, Davidson was able to collect $644.95 less than a month later.
At Erpelding's trial on nonsupport, Erpelding adduced evidence suggesting that he had provided some undocumented support to Grace. Southall testified that Erpelding paid half of Grace's daycare expenses directly to Southall and provided things for Grace during visitations. But, on cross-examination, Southall admitted she had previously testified at the hearing on custody and support that she had not received any support from Erpelding.
[292 Neb. 357] 3. Ability to Pay Child Support
The State called three witnesses who testified about Erpelding's financial status in the 3 months preceding the months that he was charged with nonpayment (May, June, and July 2012), as well as during those months he was charged with nonpayment (August, September, October, and November 2012).
Vikki Stamm, an attorney in Buffalo County, testified that she hired Erpelding to construct a building for her in May 2012. Stamm agreed to pay Erpelding $8,500 total for labor, half to be paid up front and half to be paid upon completion by the end of July. On May 7, Stamm paid Erpelding $4,250. Stamm testified that Erpelding began work and had a crew of four or five men working with him. After Erpelding failed to show up consistently and Stamm saw his business vehicle at other farms and businesses, she fired him mid-July before he completed the project. Stamm testified that at the time she terminated Erpelding, about 40 percent of the project was completed, and that she did not pay Erpelding any additional money. She also did not get back any part of the $4,250 already paid.
Collin Nabity, a Buffalo County business owner, testified that he hired Erpelding to do multiple jobs over the years, including building a shed in the summer of 2012. Nabity testified that between June 29 and July 21, 2012, he paid Erpelding $2,000 for labor to build the shed. Nabity said Erpelding had a crew working with him, but did not know how much the crew was paid.
Wade Regier, a former branch manager of the Pinnacle Bank in Palmer, Nebraska, also testified to Erpelding's financial situation. Regier testified that by June or July 2012, Erpelding had fallen behind on payments for prior loans made to him by Pinnacle Bank. In October 2012, Erpelding's Pinnacle Bank debt was consolidated into a single loan of $17,951.90. Under this " new" loan, Erpelding was required to make monthly payments of $586.31 to begin on November 24, 2012.
[292 Neb. 358] Pinnacle Bank took as security for the loan a motorcycle, three pickup trucks, a " Bobcat," and a camper trailer (Erpelding's home), which Erpelding estimated to
be valued at $31,500 total. Regier testified that at the time of Erpelding's October 2012 loan application, Erpelding represented that he had work lined up and had listed a few references.
Erpelding's loan application with Pinnacle Bank showed additional assets, monthly obligations, and outstanding judgments against him. Additional assets included tools and an enclosed trailer, which Erpelding valued at $25,000 at the time of his loan. The loan application showed monthly expenses of $1,136 for housing and a vehicle. No value was given for the outstanding judgments, but he listed " Care Credit - teeth," " Frontier," and " Verizon - cellphone." It also appears Erpelding filed bankruptcy in 2007.
Regier testified that Erpelding attempted to make at least partial payments on the loan. Based on Regier's testimony that the bank attempted to recover the debt in 2013 and seized all available assets, it appears Erpelding must have eventually stopped making payments.
4. Jury Instructions on Criminal Nonsupport
Under § 28-706, a person commits criminal nonsupport if he or she " intentionally fails, refuses, or neglects to provide proper support which he or she knows or reasonably should know he or she is legally obliged to provide to a . . . minor child." That crime is a misdemeanor unless " it is in violation of any order of any court." If in violation of a court order, the crime is a felony.
The jury was instructed that the elements of the crime charged were as follows:
(1) The defendant, . . . Erpelding, intentionally failed, refused, or neglected to provide proper support for his minor child, Grace . . ., born in 2008;
(2) That [Erpelding] knew he was legally obliged to provide support to that child by an order of the District [292 Neb. 359] Court of Buffalo County, Nebraska, entered on August 20, 2012, in Case CI 12-291;
(3) That these events occurred [in August, September, October, and November 2012]; and
(4) These events occurred in Buffalo County, Nebraska. Erpelding's trial counsel did not object to these instructions and did not offer additional instructions. The jury found Erpelding ...