Statutes. Statutory interpretation presents a question of
Judgments: Appeal and Error. When reviewing questions of law,
an appellate court has an obligation to resolve the questions
independently of the conclusion reached by the trial court.
Divorce: Child Custody: Child Support: Property Division:
Alimony: Attorney Fees: Appeal and Error. In an action for
the dissolution of marriage, an appellate court reviews de
novo on the record the trial court's determinations of
custody, child support or a modification of an existing order
of support, property division, alimony, and attorney fees;
these determinations, however, are initially entrusted to the
trial court's discretion and will normally be affirmed
absent an abuse of that discretion.
Judges: Words and Phrases. A judicial abuse of discretion
exists if the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial
right and denying just results in matters submitted for
Evidence: Appeal and Error. In a review de novo on the
record, the court is required to make independent factual
determinations based upon the record, and the court reaches
its own independent conclusions with respect to the matters
at issue. When evidence is in conflict, the appellate court
considers and may give weight to the fact that the trial
court heard and observed the witnesses and accepted one
version of the facts rather than another.
Paternity: Statutes. Paternity proceedings are purely
statutory, and such statutes must be strictly construed
because they modify the common law.
Judgments: Jurisdiction: Claim Preclusion. Claim preclusion
bars relitigation of any right, fact, or matter directly
addressed or necessarily [299 Neb. 77] included in a former
adjudication if (1) the former judgment was rendered by a
court of competent jurisdiction, (2) the former judgment was
a final judgment, (3) the former judgment was on the merits,
and (4) the same parties or their privies were involved in
Claim Preclusion. The doctrine of claim preclusion bars
relitigation not only of those matters actually litigated,
but also of those matters which might have been litigated in
the prior action.
The doctrine of claim preclusion rests on the necessity to
terminate litigation and on the belief that a person should
not be vexed twice for the same cause.
Claim Preclusion: Issue Preclusion. Whether the doctrine of
either claim preclusion or issue preclusion applies in any
given case is necessarily fact dependent.
Child Support: Parent and Child: Statutes. Nebraska's
statutes do not impose a child support obligation upon any
parties except the legally determined parents of a child.
Child Support: Paternity. Any order imposing an obligation of
child support is necessarily a legal determination of
Child Support: Paternity: Final Orders. A paternity
determination in a support order, under Neb. Rev. Stat.
§§ 43-1411 or 43-512.04 (Reissue 2016), is a final
judgment on the issue of paternity.
Claim Preclusion: Judgments. For purposes of claim
preclusion, a judgment on the merits is one which is based on
legal rights, as distinguished from mere matters of practice,
procedure, jurisdiction, or form.
Judgments: Stipulations: Final Orders. A stipulated judgment
operates on the merits and is as final and binding upon the
parties as a decree rendered after a hearing on the merits.
Divorce: Courts: Taxation. A state court having jurisdiction
in a dissolution action has the power to allocate tax
dependency exemptions as part of the dissolution decree.
Divorce: Taxation. A tax dependency exemption is nearly
identical in nature to an award of child support or alimony.
Child Support: Judgments. Childcare costs may be awarded as
an incident to child support.
Statutes: Legislature: Presumptions: Judicial Construction.
In determining the meaning of a statute, the applicable rule
is that when the Legislature enacts a law affecting an area
which is already the subject of other statutes, it is
presumed that it did so with full knowledge of the
preexisting legislation and the decisions of the Supreme
Court construing and applying that legislation.
Statutes: Appeal and Error. Statutory language is to be given
its plain and ordinary meaning, and an appellate court will
not resort to [299 Neb. 78] interpretation to ascertain the
meaning of statutory words which are plain, direct, and
Statutes: Legislature: Intent. In reading a statute, a court
must determine and give effect to the purpose and intent of
the Legislature as ascertained from the entire language of
the statute considered in its plain, ordinary, and popular
Modification of Decree: Child Support. Under Neb. Rev. Stat.
§ 42-364 (Reissue 2016), a court may allow an existing
support order to remain in effect without modification after
considering whether a modification of the existing order is
warranted, rather than making an independent calculation of
Process. Due process principles protect individuals from
arbitrary deprivation of life, liberty, or property without
due process of law.
Process: Notice. Due process does not guarantee an individual
any particular form of state procedure; instead, the
requirements of due process are satisfied if a person has
reasonable notice and an opportunity to be heard appropriate
to the nature of the proceeding and the character of the
rights which might be affected by it.
Constitutional Law: Due Process. The determination of whether
procedures afforded an individual comport with constitutional
requirements for procedural due process presents a question
Child Support. Child support orders are always subject to
review and modification.
Modification of Decree: Child Support: Proof. A party seeking
to modify a child support order must show a material change
in circumstances which (1) occurred subsequent to the entry
of the original decree or previous modification and (2) was
not contemplated when the decree was entered.
Modification of Decree: Child Support. Among the factors to
be considered in determining whether a material change of
circumstances has occurred are changes in the financial
position of the parent obligated to pay support, the needs of
the children for whom support is paid, good or bad faith
motive of the obligated parent in sustaining a reduction in
income, and whether the change is temporary or permanent.
__:__. The paramount concern in child support cases, whether
in the original proceeding or subsequent modification,
remains the best interests of the child.
Modification of Decree: Child Support: Proof. The party
seeking the modification has the burden to produce sufficient
proof that a material change of circumstances has occurred
that warrants a modification and that the best interests of
the child are served thereby.
Neb. 79] 31. Divorce: Property Division. Under Neb. Rev.
Stat. § 42-365 (Reissue 2016), the equitable division of
property is a three-step process. The first step is to
classify the parties' property as marital or nonmarital.
The second step is to value the marital assets and marital
liabilities of the parties. The third step is to calculate
and divide the net marital estate between the parties in
accordance with the principles contained in § 42-365.
Property Division. Marital debt includes only those
obligations incurred during the marriage for the joint
benefit of the parties.
Property Division: Proof. The burden to show that a debt is
nonmarital is on the party making that assertion.
Divorce: Attorney Fees. In awarding attorney fees in a
dissolution action, a court should consider the nature of the
case, the amount involved in the controversy, the services
actually performed, the results obtained, the length of time
required for preparation and presentation of the case, the
novelty and difficulty of the questions raised, and the
customary charges of the bar for similar services.
Courts: Attorney Fees. Courts have the inherent power to
award attorney fees in certain unusual circumstances
amounting to conduct during the course of litigation which is
vexatious, unfounded, and dilatory, such that it amounts to
Appeal and Error. To be considered by an appellate court, an
alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the
from the District Court for Pawnee County: Daniel E. Bryan,
M. Ligouri, of Ligouri Law Office, for appellant.
appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and
Lee Fetherkile appeals from a dissolution decree entered by
the Pawnee County District Court, which dissolved his
marriage to Jessica Renee Fetherkile. The court ruled that
Brandon was the legal father of Ariana D. and ordered him to
[299 Neb. 80] pay child support for Ariana and two other
children, pursuant to an order for support in a separate
Brandon argues that the evidence showed that he was not the
biological or legal father of Ariana; so, the court erred in
finding that he was Ariana's father and making any order
regarding her. Further, he asserts that the court erred in
not making an independent determination regarding child
support and attaching a child support calculation worksheet
to the decree.
reject Brandon's arguments because the existing order of
support was res judicata on the issue of Brandon's
paternity and Brandon failed to elicit sufficient evidence to
warrant a modification of the existing order of support.
Further, because the court did not modify the existing order
of support, it was not required to attach a worksheet to its
decree. We also find Brandon's remaining assignments of
error to be without merit. Therefore, we affirm.
and Jessica were married in June 2010 and separated in March
2013. Jessica filed a complaint for dissolution in December
2014, and Brandon filed a counterclaim, which he labeled a
cross-complaint, for dissolution in June 2015. Trial was held
in November 2016.
has three children: a daughter, born in 2013; another
daughter, born in 2008; and Ariana, born in 2006. In her
complaint and during her direct testimony, Jessica alleged
that Brandon was the legal father of all three children. In
his counterclaim, Brandon disputed paternity over Ariana and
requested genetic testing to determine whether he was the
November 2014, in case No. CI 14-12, a separate proceeding in
the Pawnee County District Court, the court entered an order
for support, based upon a stipulation of the parties. It
found that Brandon had acknowledged paternity of all three
children, ruled that he was their father, and ordered Brandon
to pay Jessica child support.
Neb. 81] At the dissolution trial, Jessica requested the
court to continue the order of child support from case No. CI
14-12. Nonetheless, upon cross-examination, Jessica testified
that Brandon was not Ariana's biological father. Jessica
also stated that despite the fact she had put Brandon's
name on Ariana's birth certificate, he never signed it,
and that Brandon had been pursuing legal adoption of Ariana
before the separation. She also acknowledged that Brandon has
two other children not born of the marriage, including one
which was born around August 2016. Further, the record does
not reflect whether the biological testing that Brandon
requested was ever performed.
parties did not contest the division of assets. Jessica
requested that the parties equally split all debts incurred
before the separation and only debts related to their
children after the separation. She testified and entered
evidence concerning several debts related to medical expenses
for the children. One exhibit, however, was a collection
notice for a debt from Jessica's bank account that
Jessica testified was incurred before the separation.
also requested at least $3, 000 from Brandon for attorney
fees. She stated that she incurred extra expenses in the
proceedings because of his delays, failures to appear, last
minute continuances, and failure to timely respond to
discovery requests, even after her having a motion to compel
granted. She presented evidence that she incurred $7, 420 of
attorney fees for the proceedings.
the close of the evidence, the court ruled from the bench. In
doing so, it stated that it was "not going to change the
child support in this case, " because Brandon had failed
to produce sufficient evidence of his change in income to
justify a modification. Further, it explained that Brandon
still had the opportunity to seek a modification of the
support order by filing for a modification in the prior case.
Additionally, the court divided all of the debts submitted
into evidence equally, ordered Brandon to pay $3, 000 of
Jessica's [299 Neb. 82] attorney fees, and ordered that
neither party was required to provide insurance for the
later date, the court signed a decree of dissolution which
ordered Brandon to provide child support pursuant to the
order of support in effect from case No. CI 14-12. Brandon
filed a timely appeal. We removed the case to our docket on
our own motion pursuant to our authority to regulate the
caseloads of the Nebraska Court of Appeals and this
ASSIGNMENTS OF ERROR
assigns, reordered and restated, that the court erred in (1)
not attaching a Nebraska child support worksheet to the
decree; (2) ordering child support pursuant to a prior order
in separate proceedings; (3) not allowing Brandon to present
evidence on his cross-claim or respond to lessica's
presentation of evidence; (4) finding that Ariana was a child
of the parties; (5) determining custody, parenting time,
child support, and expenses of Ariana, because she is not
Brandon's child; (6) ordering child support and income
tax dependencies based on three children; (7) equally
splitting all of the parties' outstanding bank debts; and
(8) awarding lessica attorney fees. He also asserts,
restated, that the court's ruling was erroneous because
(9) it was unjust, inequitable, and could not be reached as a
matter of law and (10) it was contrary to the evidence and
the law and constituted an abuse of discretion.
STANDARD OF REVIEW
interpretation presents a question of law.When reviewing
questions of law, an appellate court has an obligation to
resolve the questions independently of the conclusion reached
by the trial court.
action for the dissolution of marriage, an appellate court
reviews de novo on the record the trial court's [299 Neb.
83] determinations of custody, child support or a
modification of an existing order of support, property
division, alimony, and attorney fees; these determinations,
however, are initially entrusted to the trial court's
discretion and will normally be affirmed absent an abuse of
judicial abuse of discretion exists if the reasons or rulings
of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in
matters submitted for disposition.
review de novo on the record, the court is required to make
independent factual determinations based upon the record, and
the court reaches its own independent conclusions with
respect to the matters at issue. When evidence is in
conflict, the appellate court considers and may give weight
to the fact that the trial court heard and observed the
witnesses and accepted one version of the facts rather than
Brandon's Assignments of Error Regarding Paternity and
Child Support Are Without Merit Brandon's first six
assignments of error concern the issues of paternity, child
support, and other determinations regarding Ariana. Brandon
contends the court erred in finding Ariana to be his child
and making various determinations regarding Ariana as a child
of the parties. He also contends that the court violated his
due process rights by adopting the order of support in case
No. CI 14-12, rather than making its own independent
conclusions, and preventing him from presenting evidence to
challenge Jessica's case or present his own case.