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10/31/2024 09:06 AM CDT
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
Lizeth E., now known as Lizeth S., appellee,
v. Roberto E., appellant.
___ N.W.3d ___
Filed October 31, 2024. No. S-23-800.
1. Modification of Decree: Child Custody: Visitation: Child Support:
Appeal and Error. Modification of a judgment or decree relating to
child custody, visitation, or support is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record,
and will be affirmed absent an abuse of discretion.
2. Child Support: Equity. Child support proceedings are equitable in
nature.
3. Courts: Equity. Where a situation exists that is contrary to the principles of equity and which can be redressed within the scope of judicial
action, a court of equity will devise a remedy to meet the situation.
4. Child Support: Rules of the Supreme Court. The Nebraska Child
Support Guidelines expressly permit a deviation from the guidelines for
juveniles placed in foster care.
5. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record, which prejudicially affects
a substantial right of a litigant and is of such a nature that to leave it
uncorrected would cause a miscarriage of justice or result in damage to
the integrity, reputation, and fairness of the judicial process.
Appeal from the District Court for Lincoln County, Cindy
R. Volkmer, Judge. Affirmed in part, and in part vacated and
remanded for further proceedings.
Todd M. Jeffers, of Jeffers Law Firm, for appellant.
No appearance by appellee.
- 972 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
The issues raised in this modification of a dissolution
decree appeal relate to Roberto E.’s child support obligation,
particularly to child support he paid while his children were
not in his former wife’s custody. Upon our de novo review of
the record for an abuse of discretion, we affirm the district
court’s determination that it lacked jurisdiction to modify custody while a child’s case remained pending in juvenile court.
However, we vacate the judgment and remand the cause to the
district court to consider whether a deviation from the child
support guidelines is appropriate under the circumstances.
BACKGROUND
We start by summarizing the dissolution of marriage proceedings, including the child support ordered. Then, we touch
on the juvenile court cases involving the children and a bridge
order concerning one child. Finally, we discuss the complaints
to modify the decree, the evidence adduced at the hearing, and
the district court’s order from which this appeal is taken.
Marriage and Dissolution
In 2011, Roberto and Lizeth E., now known as Lizeth S.,
married and a child, Roberto E., Jr. (Roberto Jr.), was born to
the marriage. Roberto subsequently adopted Lizeth’s four children: Andres E., Angel E., Adrian E., and Adriana E.
In 2014, Lizeth filed a complaint in the Lincoln County
District Court to dissolve the marriage. In 2017, the court
entered a decree of dissolution. It awarded Lizeth physical and
legal custody of all five children and ordered Roberto to pay
monthly child support of $1,333 for all five children.
Juvenile Court Cases
While in Lizeth’s custody, each child was the subject of a
juvenile court petition alleging the child to be a “juvenile” as
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
described in
Neb. Rev. Stat. § 43-247(3) (Reissue 2016). As a
result, the children were, at various times, put in placements
outside of Lizeth’s home.
• Andres was on probation and in out-of-home placements,
including with relatives, from December 9, 2020, to February
5, 2021, and from March 16, 2021, to June 22, 2023.
• Angel and Adrian were removed from Lizeth’s custody on
August 4, 2021, were placed in foster care, and were returned
to Lizeth’s home in December 2022.
• Adriana was removed from Lizeth’s custody on March 8, 2021,
and has remained in foster care. In a June 2023 order, the juvenile court approved a permanency goal of guardianship.
• Roberto Jr. was removed from Lizeth’s custody on August 4,
2021, was placed in foster care, and has remained in Roberto’s
custody since November 19.
Bridge Order and Orders
Nunc Pro Tunc
In May 2022, the county court for Frontier County, acting as
a juvenile court, entered a bridge order placing Roberto Jr. in
the sole custody of Roberto. The order transferred jurisdiction
to the Lincoln County District Court. Except for this bridge
order, the record before us does not disclose any juvenile court
order addressing child support or any attempt by any party in
juvenile court to seek any such order.
Roberto subsequently sought an order nunc pro tunc to
reflect the custody change. He attached to his motion an “accurate split custody child support calculation.” The court entered
the requested order, finding that the 2017 child support order
should be “modified to reflect the Bridge Order split custody
arraignment [sic].” The court attached to its order Roberto’s
split custody child support calculation.
Shortly thereafter, Roberto filed another “Motion Nunc Pro
Tunc.” He alleged that the child support calculation attached to
the order nunc pro tunc was incomplete, because it contained
only two of four pages. Roberto attached to his motion an
updated calculation.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
In July 2022, the district court entered another order nunc
pro tunc. It found that “[t]here has occurred a material and
a substantial change in circumstances since the entry of the
Decree of Dissolution of Marriage dated January 22, 2017.” It
stated that the updated split custody child support calculation
modified a paragraph in the original decree and that the first
payment was due and payable on December 1, 2021.
The district court attached to its order an updated split custody child support calculation. According to the worksheet,
Roberto’s child support obligation was $779 per month when
four of the children were in Lizeth’s custody and one child
was in Roberto’s custody. The worksheet showed the amount
of support for each child was $353.20, with Lizeth’s share
being $126.80 and Roberto’s share being $226.40. The worksheet indicated that Adriana was in Lizeth’s custody.
Modification Proceedings
In September 2018, Lizeth filed a complaint, styled as an
application, to modify parenting time. Two months later, she
filed a motion to modify child support based on an alleged
increase to Roberto’s income. In response, Roberto denied
there was a material change in circumstances. Later, in a March
2021 response to an order to show cause, Roberto alleged that
a material change in circumstances occurred due to a temporary order that changed the parenting plan and due to Lizeth’s
difficulty with being the children’s physical custodian. These
filings remained pending until 2023.
After this extended delay, in March 2023, Roberto filed a
complaint, styled as a motion, seeking modification. He alleged
that the orders and findings in the children’s juvenile cases
constituted a material change of circumstances and that only in
Roberto Jr.’s case had a bridge order been sent to the district
court. Roberto alleged that the decree and orders in this case
“need corrected, retroactively Pro Nunc Tunc, and currently
moving forward to accurately reflect the custody changes, and
changes to payee, ordered by these juvenile cases.”
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
According to Roberto, the split custody calculation attached
to the July 2022 order nunc pro tunc accurately provided
the child support calculation needed to adjust the juvenile
case custody changes. He pointed out that the calculation
showed Lizeth’s share of childcare costs to be 35.9 percent and
Roberto’s share to be 61.1 percent. Roberto asserted that “[t]he
multiple [j]uvenile cases that have modified custody has failed
to update the child support owed by the parties correctly.” He
alleged that the State improperly collected from him 100 percent of child support for the children who were in foster care
and state custody and that the State opted not to use its authority under
Neb. Rev. Stat. § 43-290 (Reissue 2016) to request
Lizeth pay a reasonable amount for foster care.
Roberto sought various relief. The requested relief included
an order nunc pro tunc updating the child support order to
reflect custody changes contained in the juvenile court orders,
a judicial review of a seizure of Roberto’s property, an order
preventing child support enforcement from releasing Roberto’s
seized property until after a judicial review, and an evidentiary
hearing providing Roberto with an opportunity to offer proof
that past due child support had been satisfied in whole or
in part.
In August 2023, the district court held a hearing on the three
pending complaints to modify. Roberto provided testimony
and offered numerous exhibits. Although Lizeth did not appear
personally, she was represented by counsel.
Roberto testified that his parenting time and communication with the children ceased in August 2018. He was falsely
accused of abusing them, resulting in criminal charges. The
charges led to Roberto’s arrest, payment of a $50,000 bond,
and incurrence of attorney fees. The criminal charges were
dropped 2 years later. After the charges were dropped, Roberto
communicated with the Nebraska Department of Health and
Human Services (DHHS) about resuming parenting time with
Roberto Jr., who was in foster care.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
Roberto testified that the criminal charges caused him to
become delinquent in child support payments. He explained
that he lacked money for child support due to having to pay for
an attorney and related legal expenses. Roberto testified that
the delinquency occurred “pretty much about the time that [he]
had to hire the criminal attorney.”
Child support payment history data for Roberto showed
that of Roberto’s $779 monthly payment, $584.25 was allocated to Lizeth and $194.75 was allocated to DHHS. It also
showed that Roberto became delinquent on his child support
obligation and first accumulated arrears in December 2018.
According to a payment history report up to March 2, 2023,
the balance of Roberto’s child support payment due to Lizeth
amounted to $49,381.34 and the balance due to DHHS was
$11,354.75.
Ultimately, DHHS garnished Roberto’s bank account, seizing $59,692.88 of his property under Nebraska’s bank match
system. 1 Of that amount, $48,737.82 has been disbursed
to Lizeth.
Although Roberto assigns error to the district court’s order
in this dissolution modification action, he also filed a separate
administrative appeal concerning the seizure. Following an
administrative hearing, the DHHS hearing officer determined
that “the action of DHHS was proper.” In April 2023, Roberto
filed a notice and petition for review of the garnishment in the
Lincoln County District Court. That case remains pending.
District Court’s Order
In September 2023, the district court entered an order concerning the parties’ collective filings. The court began with
an analysis of the custody of the five children. It stated that
Andres was in out-of-home placements a total of 31 months
from December 2020 to June 2023 and that Angel and Adrian
were both placed in foster care for 17 months. These three
children were living with Lizeth at the time of trial. Adriana
1
See Neb. Rev. Stat. §§ 43-3328 to 43-3339 (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
had been in foster care since March 2021 and remained there at
the time of trial. Roberto Jr. was removed from Lizeth’s home
on August 4, 2021, and placed in foster care. In November
2021, Roberto Jr. was placed with Roberto and has remained
living with him.
The court stated that custody of Roberto Jr. was finalized
by the bridge order, and it found no material change in circumstances to warrant a custody change for him. The court
stated: “Because the juvenile cases are ongoing for Andres,
Angel, Adrian, and Adriana, this Court does not have jurisdiction to determine custody of those four minors. Placement of
the minors is under the scrutiny and control of [DHHS].” The
court further stated: “To the extent this Court has the power
to determine custody of Andres, Angel, Adrian, and Adriana,
it declines to do so. The parties involved in the juvenile proceedings are more informed as to the best interests of these
children at this time.”
The court next addressed child support credits. Roberto
requested credit toward his child support obligation for time
that the children were not in Lizeth’s custody. Citing Truman
v. Truman, 2 the court recognized the rule against modification
of accrued child support unless equitable estoppel applied. The
court set forth the elements of equitable estoppel and found
that they were not present.
The court denied Roberto’s request to credit back child
support for the time the children were not with Lizeth. The
court rejected Roberto’s claim that he paid child support to
Lizeth for children who were not in her home, observing that
$11,103.31 of the $59,841.13 garnished from Roberto was sent
to DHHS.
Turning to child support moving forward, the court recognized that the July 2022 order nunc pro tunc accounted for
the change in custody of Roberto Jr. The court stated that
although Adriana was not in Lizeth’s custody, she still needed
2
Truman v. Truman, 256 Neb. 628,
591 N.W.2d 81 (1999).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
support. It observed: “Exhibit 61 indicates that the State of
Nebraska is pursuing a child support order against Lizeth for
the benefit of Adriana. Additionally, exhibit 62 reflects that
the DHHS is taking a portion of Roberto’s current child support obligation.” Based on that information, the court found
that Lizeth was not receiving a windfall in child support for a
child that was not in her custody.
Finally, the court reviewed the seizure of Roberto’s property related to the garnishment of his bank account. The court
noted that when a minor child was first removed from Lizeth’s
home in December 2020, Roberto was already in arrears
by $34,423.37. The court stated that because Lizeth did not
receive a windfall in child support for children she did not
have in her home, there was no error in the garnishment of
$25,417.76 for child support accrued from December 2020 to
March 2023. Accordingly, the court found that Roberto was
not entitled to the return of any of the garnished funds because
no credit had been granted to him and because the garnished
funds were properly divided between Lizeth and DHHS.
Roberto appealed, and we moved the case to our docket. 3
ASSIGNMENTS OF ERROR
Roberto assigns that the court erred in (1) finding no material change in circumstances regarding Adriana, (2) approving
a child support order contrary to the child support guidelines,
(3) holding that only equitable estoppel would allow giving
him credit for child support that was paid when the children
were not in Lizeth’s custody, (4) failing to retroactively adjust
the child support payments to reflect custody placements from
the time of the modification filings, and (5) approving the garnishment of his bank account for an inaccurate amount.
STANDARD OF REVIEW
[1] Modification of a judgment or decree relating to child
custody, visitation, or support is a matter entrusted to the
3
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
discretion of the trial court, whose order is reviewed de novo on
the record, and will be affirmed absent an abuse of discretion. 4
ANALYSIS
Material Change in Circumstances
Roberto argues that the district court erred in determining
that there was not a material change in circumstances regarding Adriana’s custody. Rather than finding no material change
in circumstances, the court’s order made no determination
concerning a material change in circumstances with respect
to Adriana.
The district court acknowledged several points raised by
Roberto. It recognized that Adriana has been in foster care
since March 2021, that Adriana may never return to Lizeth’s
home, and that Adriana’s juvenile case was ongoing. But
the court determined that it lacked jurisdiction to determine
Adriana’s custody because her juvenile case had not concluded. The court stated that to the extent it had the power to
determine custody, it declined to do so as a result of the pending juvenile court proceeding.
In determining whether the district court erred in that regard,
we start with provisions in the Nebraska Juvenile Code. 5
Section 43-246.01 sets forth categories of juveniles over which
the juvenile court has either exclusive or concurrent original
jurisdiction. The juvenile court has exclusive original jurisdiction over an individual adjudicated under § 43-247(3)(a). 6
Adriana is such an individual. Exercising its jurisdiction, the
juvenile court awarded Adriana to the care of DHHS for placement. 7 DHHS placed her in foster care.
4
Mann v. Mann, 316 Neb. 910, 7 N.W.3d 845 (2024).
5
See
Neb. Rev. Stat. §§ 43-245 to 43-2,129 (Reissue 2016, Cum. Supp.
2022 & Supp. 2023).
6
See § 43-246.01(1)(a).
7
See § 43-285.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
The juvenile court possesses continuing jurisdiction over
a child such as Adriana. 8 It is empowered to order a change
in the custody or care of any such juvenile if it appears to
the court that such a change would be in the juvenile’s best
interests. 9
The juvenile court is authorized to terminate its jurisdiction. It may do so by transferring jurisdiction over the juvenile’s custody, physical care, and visitation to the district court
through a bridge order. 10 But the juvenile court may do so only
if four criteria are met. 11
Here, two criteria for entry of a bridge order are unsatisfied. 12 Thus, the juvenile court could not transfer jurisdiction
over Adriana’s custody and care to the district court. Because
jurisdiction over such matters remains with the juvenile court,
the district court did not err or abuse its discretion in declining to make a custody determination regarding Adriana.
Child Support
The heart of Roberto’s appeal concerns his child support
obligation for periods when one or more children were in
neither parent’s custody. In considering his arguments, we
are mindful of our retroactivity jurisprudence. We have held
that child support payments are a vested right of the payee
in a dissolution action as they accrue and that such payments
may be changed only by modification of the decree based on
a material change in circumstances. 13 Accordingly, we have
8
See § 43-295.
9
Id.
10
See § 43-246.02(1).
11
Id.
12
See § 43-246.02(1)(c) and (d) (respectively, safe placement with legal
parent and juvenile court determination that its jurisdiction should end
“once orders for custody, physical care, and visitation are entered” by
district court).
13
See Berg v. Berg, 238 Neb. 527,
471 N.W.2d 435 (1991).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
stated that a court may not forgive or modify past-due child
support, but may modify the amount of child support becoming due in the future. 14
[2,3] The district court’s conclusion that it lacked jurisdiction to modify Adriana’s custody did not leave it powerless
over Roberto’s request to modify child support. That is because
child support proceedings are equitable in nature. 15 Where a
situation exists that is contrary to the principles of equity and
which can be redressed within the scope of judicial action, a
court of equity will devise a remedy to meet the situation. 16
Roberto argues that the split custody child support order is
arbitrary. He bases this argument on the worksheet’s showing
that Lizeth has custody of four children and that Roberto has
custody of one child when, in actuality, Lizeth has custody of
three children, Roberto has custody of one child, and DHHS
has custody of one child. In Roberto’s motion to modify child
support, he alleged that the State was collecting all of the support from him and none from Lizeth. He asserted that Lizeth,
for the foreseeable future, should be ordered to pay her share
of child support for the periods when the children were not in
her care, which was at least 59 months.
[4] The Nebraska Child Support Guidelines apply as a rebuttable presumption. 17 “All orders for child support obligations
shall be established in accordance with the provisions of the
guidelines unless the court finds that one or both parties have
produced sufficient evidence to rebut the presumption that the
guidelines should be applied.” 18 The guidelines expressly permit
deviations from the guidelines under certain circumstances. 19
14
Id.
15
See Gangwish v. Gangwish,
267 Neb. 901,
678 N.W.2d 503 (2004).
16
Yori v. Helms,
307 Neb. 375,
949 N.W.2d 325 (2020).
17
Neb. Ct. R. § 4-203 (rev. 2020).
18
Id.
19
See id.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
One such circumstance is for juveniles placed in foster care. 20
Another is “whenever the application of the guidelines in an
individual case would be unjust or inappropriate.” 21 Further,
a different guideline provides that if the child is residing with
a third party, the court “shall order each of the parents to pay
to the third party their respective amounts of child support as
determined by the worksheet.” 22
Roberto did not request a deviation from the district court—
a failure that would typically preclude relief for two reasons.
First, a lower court cannot commit error in resolving an issue
never presented and submitted to it for disposition. 23 Second, a
party cannot complain of error which the party has invited the
court to commit. 24 Roberto’s proposed child support calculations offered in 2022 in connection with the orders nunc pro
tunc did not request a deviation, nor did he propose a child
support calculation with a deviation in connection with his
2023 complaint to modify.
But no appellate decision has addressed the interplay
between the respective powers and duties of a district court
and a juvenile court when a child support order exists and a
child is subsequently placed in foster care. The bench and the
bar had no guidance regarding how to proceed in such a situation. We acknowledge that the district court lacked guidance
from the appellate courts and received little assistance from the
parties. Further, the situation appears to have been muddled by
the absence of any effort by the parties to address child support
during the juvenile court proceedings.
[5] In this situation, we conclude that the option selected by
the district court—leaving Roberto’s child support obligation
20
§ 4-203(D).
21
§ 4-203(E).
22
Neb. Ct. R. § 4-222 (rev. 2011).
23
Seid v. Seid,
310 Neb. 626,
967 N.W.2d 253 (2021).
24
Id.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
unchanged—amounted to plain error. Plain error exists where
there is an error, plainly evident from the record, which prejudicially affects a substantial right of a litigant and is of such a
nature that to leave it uncorrected would cause a miscarriage
of justice or result in damage to the integrity, reputation, and
fairness of the judicial process. 25
Roberto has produced sufficient evidence to rebut the presumption that the application of the child support guidelines will result in a fair and equitable child support order. 26
There is no dispute that Adriana is, and has been, in foster
care. Nor is there dispute about the periods of time when
Angel, Adrian, and Roberto Jr. were in foster care. However,
a DHHS “Payment History Report” in the record shows that
of Roberto’s $779 monthly child support payment, $194.75
is payable to DHHS and the remaining $584.25 is payable to
Lizeth. A report titled “Judgment Totals to 03/02/2023” shows
a balance payable to Lizeth of $49,381.34 and a balance payable to DHHS of $11,354.75.
While the district court may lack jurisdiction to make a
custody change, it can use its equitable powers to make a
downward deviation of Roberto’s child support obligation. And
while Roberto may remain liable to support his children even
when they were not in Lizeth’s custody, it is inequitable for
Lizeth to receive those payments.
Because we review the district court’s decision de novo on
the record for an abuse of discretion, that court should have
the opportunity in the first instance to consider whether a
deviation should be allowed to account for the time that the
children were in foster care, rather than in Lizeth’s custody.
Accordingly, we vacate the district court’s decision concerning
child support and remand the cause for further proceedings in
accordance with this opinion.
25
Tyler F. v. Sara P., 306 Neb. 397,
945 N.W.2d 502 (2020).
26
See Neb. Rev. Stat. § 42-364.16 (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
LIZETH E. V. ROBERTO E.
Cite as 317 Neb. 971
Garnishment
Roberto also argues that the district court erred in approving
a garnishment of his bank account for $59,692.88 for back child
support. Because we have vacated the judgment and remanded
the cause for further proceedings concerning Roberto’s child
support obligation and because whether the amount of garnishment was proper depends upon the amount of Roberto’s
child support, we likewise vacate the judgment and remand the
cause concerning the court’s garnishment findings.
CONCLUSION
We conclude that the district court did not err in declining to
make a custody determination while jurisdiction over Adriana
remained in the juvenile court. However, we vacate the judgment and remand the cause to the district court for further
proceedings regarding Roberto’s child support obligation and
the garnishment of his bank account.
Affirmed in part, and in part vacated and
remanded for further proceedings.
