864 N.W.2d 249
Neb. Ct. App.2015Background
- Bryan B. and Monica D. are the biological parents of Andrew (born 2011); State filed paternity/support action on behalf of child in Nov 2012. Trial occurred Dec 2013; judgment Feb 11, 2014.
- Temporary order had given Monica sole physical custody and required Bryan to submit to drug testing on Monica’s request; Bryan submitted to tests (one negative in June 2013, one hair test positive for THC in Oct 2013).
- Financial evidence: Bryan is a self-employed mechanic who had not filed tax returns since 2008 and produced QuickBooks/bank records and other estimated statements; court attributed $3,500/month to Bryan. Monica had variable earnings (tax returns: high in 2010, lower by 2012) and testified she was earning $6,000/month at trial.
- Monica testified Andrew lacked coverage but intended to obtain private insurance and estimated a cost (~$250/month); she did not introduce documentation of insurance cost at trial.
- Trial court ordered $470/month child support (using $3,500 for Bryan and $6,000 for Monica), allocated daycare, required Monica to obtain insurance and credited $205/month for insurance, and ordered Bryan to submit to up to four drug tests per year at Monica’s request (hair or UA), terminating after 12 months of negative tests.
- Bryan appealed, challenging: (1) insurance deduction without proof; (2) sufficiency/speculation of income findings for him; (3) failure to average Monica’s income; and (4) the random hair-follicle drug-testing requirement.
Issues
| Issue | Plaintiff's Argument (State/Monica) | Defendant's Argument (Bryan) | Held |
|---|---|---|---|
| Health-insurance deduction | Monica: she plans to obtain coverage and testified as to cost; court relied on attached doc showing $205/month | Bryan: no admissible proof of insurance cost; court relied on a document not in evidence | Court: Reversed — Monica failed to prove cost; remove insurance deduction and recalculate support on remand |
| Bryan’s income for support | State/Monica: use available business records (QuickBooks balance sheet, deposits, exhibits) to attribute income | Bryan: records inaccurate; court speculated and improperly used QuickBooks balance sheet; he provided other estimates showing lower income | Court: Affirmed — trial court did not abuse discretion; Bryan’s failure to file returns impaired proof; $3,500/month attribution upheld |
| Monica’s income averaging | State/Monica: use current earnings ($6,000/mo) at trial | Bryan: court should average 3 years’ earnings because of fluctuation (would increase support) | Court: Affirmed — income averaging discretionary; Monica’s pattern showed steady decline, not the substantial fluctuation requiring averaging |
| Random drug-testing provision | Monica: ongoing testing justified by positive test history; provision limits tests to 4/year and terminates after 12 months clean | Bryan: objects to hair-follicle method and delegation to Monica to dictate timing/method/place | Court: Affirmed in substance but modified — testing requirement valid; Bryan may choose hair-follicle or urinalysis when Monica requests testing (no unilateral method control by Monica) |
Key Cases Cited
- Citta v. Facka, 19 Neb. App. 736 (trial court child-support awards reviewed for abuse of discretion)
- Patton v. Patton, 20 Neb. App. 51 (parent requesting insurance credit must prove insurance cost)
- Peter v. Peter, 262 Neb. 1017 (use current earnings to calculate child support)
- Gress v. Gress, 274 Neb. 686 (income averaging may be used when substantial fluctuations exist)
- State on behalf of Hannon v. Rosenberg, 11 Neb. App. 518 (steady income decline is not "substantial fluctuation" warranting averaging)
- Barth v. Barth, 22 Neb. App. 241 (court cannot delegate core visitation determinations to custodial parent; considered in analysis of delegation issue)
- State v. Shelby, 194 Neb. 445, 232 N.W.2d 23 (sentencing/authority principles referenced elsewhere in opinion)