Fetherkile v. Fetherkile, 299 Neb. 76

Background

Brandon and Jessica Fetherkile divorced; prior to the dissolution, a Pawnee County child-support order (CI 14-12), entered on the parties’ stipulation, found Brandon to be the legal father of three children including Ariana (born 2006) and ordered child support.
In the dissolution action, Brandon disputed paternity of Ariana, sought genetic testing in his counterclaim, and presented evidence of changed income and a subsequently born child. Jessica testified Brandon was not Ariana’s biological father but sought continuation of the prior support order.
The district court declined to modify the preexisting support order, incorporated the CI 14-12 support obligation into the dissolution decree, divided marital debts equally (including a bank debt), and awarded Jessica $3,000 in attorney fees.
Brandon appealed, arguing (inter alia) that Ariana is not his child, that the prior support order was not binding (violating due process), that the court should have performed a new child-support calculation with worksheet, and that debt allocation and attorney fees were improper.
The Nebraska Supreme Court reviewed de novo issues of custody, support, property division, and fees but gives deference to trial-court fact findings where appropriate.

Issues

Issue	Plaintiff's Argument (Brandon)	Defendant's Argument (Jessica)	Held
Whether Ariana’s paternity could be relitigated in the dissolution action	The prior paternity finding was incorrect; he is not Ariana’s biological or legal father	Prior support order (CI 14-12) adjudicated paternity and should be controlling	The court held the CI 14-12 paternity determination was res judicata; relitigation barred absent statutory disestablishment procedures
Whether the dissolution court could adopt the existing child-support order without running new worksheet	Court violated process by adopting prior order and not calculating support anew or attaching worksheet	Court may let an existing support order remain in effect after considering current circumstances; worksheet not required if no new support order/modification is imposed	Held: §42-364 allows leaving prior order in effect; no worksheet required because court did not modify or reimpose a new support amount (prior worksheet was admitted into evidence)
Whether Brandon proved a material change in circumstances to modify support (reduced income; new child)	He had reduced income and a new child, so support should be reduced	No sufficient documentary proof of permanent income change; rules limit credit for subsequently born children absent upward-modification context	Held: Brandon failed to show a material change; court did not abuse discretion; rules bar reduction solely for subsequent child when obligee did not seek upward modification
Whether attorney fees and debt division were improper	Fees and equal split of bank debt were inequitable given short marriage and small estate	Fees justified by protracted litigation, discovery refusals, sanctions motion; bank debt incurred during marriage and is marital	Held: Court did not abuse discretion awarding $3,000 fees and treating the bank debt as marital (Brandon failed to prove nonmarital nature)

Key Cases Cited

DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (Neb. 1994) (paternity determination in dissolution decree is a final judgment)
Robbins v. Robbins, 219 Neb. 151, 361 N.W.2d 519 (Neb. 1985) (trial court must give effect to earlier child-support order when appropriate)
Rutherford v. Rutherford, 277 Neb. 301, 761 N.W.2d 922 (Neb. 2009) (trial court must prepare/include child-support worksheet when it imposes or modifies support)
State on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257 (Neb. 2014) (child-support orders impose paternity and are subject to res judicata)
Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (Neb. 2012) (discussing disestablishment of paternity statutes)
Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (Neb. 2009) (child support modification principles)
Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (Neb. 1999) (paternity and support enforcement principles)
Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (Neb. 2005) (dissolution court may allocate tax dependency exemptions)