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.
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.
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.
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
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
__:__: __. 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.
Statutes: Appeal and Error. An appellate
court will try to avoid, if possible, a statutory
construction that would lead to an absurd result.
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.
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.
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.
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.
from the District Court for Lancaster County: Susan I.
Strong, Judge. Affirmed.
Douglas House, pro se.
Kelly, Lancaster County Attorney, and Jordan M. Talsma for
Neb.App. 597] Riedmann and Bishop, Judges, and McCormack,
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.
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.
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.
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."
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.
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.
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.
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 ...