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House v. House

Court of Appeals of Nebraska

March 21, 2017

Douglas House, appellant,
Michele House, appellee.

         1. Contempt: Appeal and Error. In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court's resolution of issues of law is reviewed de novo, (2) the trial court's factual findings are reviewed for clear error, and (3) the trial court's determinations of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion.

         2. Child Support. Neb. Rev. Stat. § 43-512 (Supp. 2015) details the procedure by which any dependent child, or any relative or eligible caretaker of such dependent child, may file a written application for financial assistance to the Department of Health and Human Services.

         3. Child Support: Prosecuting Attorneys. Pursuant to Neb. Rev. Stat. § 43-512(2) (Supp. 2015), following the application for financial assistance, the Department of Health and Human Services investigates to see if the child has a parent or stepparent who is able to contribute to the support of such child and has failed to do so; upon such a finding, a copy of the finding of such investigation and a copy of the application shall immediately be filed with the county attorney or authorized attorney.

         4. Actions: Child Support: Prosecuting Attorneys. Pursuant to Neb. Rev. Stat. § 43-512.01 (Reissue 2016), it is the duty of the county attorney or authorized attorney to immediately take action against the nonsup-porting parent and initiate a child support enforcement action. If the county attorney initiates an action, he or she shall file either a criminal complaint for nonsupport under Neb. Rev. Stat. § 28-706 (Reissue 2016) or a civil complaint against the nonsupporting parent or stepparent under Neb. Rev. Stat. § 43-512.03 (Reissue 2016).

         [24 Neb.App. 596] 5. __: __: __. Pursuant to Neb. Rev. Stat. § 43-512.03(4) (Reissue 2016), the State of Nebraska shall be a real party in interest in any action brought by or intervened in by a county attorney to enforce an order for child support.

         6. __:__: __. Pursuant to Neb. Rev. Stat. § 43-512.03(1)(c) (Reissue 2016), the county attorney or authorized attorney shall enforce child support orders by civil actions or administrative actions, citing the defendant for contempt, or filing a criminal complaint.

         7. Statutes: Appeal and Error. An appellate court will try to avoid, if possible, a statutory construction that would lead to an absurd result.

         8. Jurisdiction: Words and Phrases. Subject matter jurisdiction deals with a court's ability to hear a case; it is the power of a tribunal to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject matter involved.

         9. Courts: Jurisdiction: Contempt. A court that has jurisdiction to issue an order also has the power to enforce it; the power to punish for contempt is incident to every judicial tribune.

         10. Child Support: Federal Acts: Evidence. Pursuant to Neb. Rev. Stat. § 43-3342.01 (Reissue 2016), a true copy of the record of payments, balances, and arrearages maintained for services received under title IV-D of the federal Social Security Act is prima facie evidence, without further proof or foundation, of the balance of any amount of support order payments that are in arrears and of all payments made and disbursed to the person or agency to whom the support order payment is to be made; such evidence shall be considered to be satisfactorily authenticated, shall be admitted as prima facie evidence of the transactions shown in such evidence, and is rebuttable only by a specific evidentiary showing to the contrary.

         11. Child Support: Contempt: Presumptions: Proof. Pursuant to Neb. Rev. Stat. § 42-358(3) (Reissue 2016), a rebuttable presumption of contempt shall be established if a prima facie showing is made that the court-ordered child or spousal support is delinquent.

         Appeal from the District Court for Lancaster County: Susan I. Strong, Judge. Affirmed.

          Douglas House, pro se.

          Joe Kelly, Lancaster County Attorney, and Jordan M. Talsma for appellee.

         [24 Neb.App. 597] Riedmann and Bishop, Judges, and McCormack, Retired Justice.

          Bishop, Judge.

         Douglas House appeals from an order of the district court for Lancaster County that found him in contempt of court for failure to pay child support. We affirm.


         Douglas and Michele House were married in 2007 and had one child, born that same year. The parties divorced in June 2012. Pursuant to the parties' parenting plan which was approved and adopted in the divorce decree, Michele received physical custody of the parties' minor child, subject to Douglas' reasonable rights of parenting time. Douglas was ordered to pay child support in the amount of $346 per month, commencing on July 1.

         On May 11, 2015, a deputy Lancaster County Attorney filed a "Motion for an Order to Show Cause and to Appear, " pursuant to Neb. Rev. Stat. § 43-512.03 (Reissue 2016). The motion alleged that Douglas was ordered to pay child support in the amount of $346 per month, but according to the Department of Health and Human Services (DHHS) payment history report, he was delinquent "in an amount greater or equal to the support due and payable for a one month period of time." The deputy Lancaster County Attorney asked the court to order Douglas to show cause as to why he should not be held in contempt of court for failure to comply with the order directing him to pay child support. An order to show cause was entered on May 12, directing Douglas to appear on June 18 and show cause why he should not be held in contempt; he was ordered to bring income tax returns for the past 3 years and his last three wage statements. The court also appointed the Lancaster County Attorney to commence contempt proceedings against Douglas. For reasons not apparent from our record, the show cause/contempt hearing was not held on June 18.

         [24 Neb.App. 598] A hearing on the show cause/contempt action was held on November 18, 2015. The deputy county attorney appeared on behalf of the State, and shall be referred to as the "State" hereafter. Douglas appeared pro se. For his opening statement, Douglas said he wanted to "make a statement as to [his] indigence . . . and [his] inability to pay at this time, but, other than that, [he would] let the prosecution go forward."

         The State offered into evidence exhibit 1, a certified DHHS payment history report dated November 9, 2015. Douglas objected, arguing that it "doesn't have a wet ink signature, it's not sworn to that this is accurate and correct." The court and the State pointed out that the report had a certification stamp on it, and the State informed Douglas that "it's an electronic signature." Douglas responded, "Well, Your Honor, I really don't know if any person has ever really signed this thing, as far as an electronic signature. Shouldn't a - anything be - that's entered on the court record be a wet ink signature?" The court said, "This is sufficient for a court record, " then received exhibit 1 and overruled Douglas' objection. Exhibit 1 showed that as of November 9, Douglas owed a child support balance of $4, 112.94 (he had made no child support payments since November 2014). After offering exhibit 1 into evidence and having it received, the State rested.

         After being sworn in, Douglas said that in order for the State to bring a claim under § 43-512.03, there has to be a "request" assigning power to be a real party in interest to the county attorney, "[a]nd the record is absent of a request" from DHHS or any other entity that is "authorized." Douglas argued, "For the county attorney to have that authority, he needs to bring forth that request. He has no authority right now .... So, I object to this entire proceeding, this claim being brought forth without powers assigned." The State responded that DHHS had requested the claim be brought to enforce the child support order because the recipient of the child support was receiving public assistance benefits. The State acknowledged that DHHS' request had not been made part of the record, but the [24 Neb.App. 599] State was not aware of any requirement that the request be made part of the record. The court concluded that the State had complied with the statute.

         The State then argued that under Neb. Rev. Stat. § 42-358 (Reissue 2016), there is a rebuttable presumption of contempt upon a prima facie showing that the defendant is behind on his child support. When asked if he had anything to rebut the evidence that he was behind in his child support payments. Douglas continued to object to the State's authority to bring the claim. Douglas then said:

I am indigent. I've got, publicly declared, two poverty affidavits on the court record. I'm currently in the appellate court with a juvenile case. The custody of my daughter is up in the air. It - the juvenile case has been - my brief has just been accepted.
I'm also - currently, the District Court is going to receive an appeal in which I was denied a substantial right during a special proceeding. I appealed that, also, Your Honor. And, you know, so my poverty affidavits in itself speak for themselves. I - I - I cannot pay right now. That's just - it's that simple. I'm indigent. I am under - I have nothing.

         The district court informed Douglas that there was a rebuttable presumption that he was in willful contempt of court and that based on the evidence, it found him in willful contempt. Douglas continued to ...

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