Hopkins v. Stauffer

775 N.W.2d 462, 18 Neb. Ct. App. 116
CourtNebraska Court of Appeals
DecidedNovember 10, 2009
DocketA-09-266
StatusPublished
Cited by4 cases

This text of 775 N.W.2d 462 (Hopkins v. Stauffer) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hopkins v. Stauffer, 775 N.W.2d 462, 18 Neb. Ct. App. 116 (Neb. Ct. App. 2009).

Opinion

775 N.W.2d 462 (2009)
18 Neb. App. 116

Shannon I. HOPKINS, formerly known as Shannon I. Stauffer, appellee,
v.
Shane Alan STAUFFER, appellant.

No. A-09-266.

Court of Appeals of Nebraska.

November 10, 2009.

*463 Shane Alan Stauffer, pro se.

No appearance for appellee.

SIEVERS, CARLSON, and CASSEL, Judges.

CASSEL, Judge.

INTRODUCTION

Since at least 1985, Nebraska appellate courts have held that incarceration does not constitute a material change in circumstances justifying a reduction in or termination of child support obligations. See Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985). This appeal addresses the continued vitality of that rule in light of recent amendments by the Legislature to Neb. Rev.Stat. § 43-512.15 (Reissue 2008). Because we conclude that the Legislature *464 intended its amendments to allow incarcerated individuals to obtain a reduction in child support under certain conditions, we reverse, and remand for further proceedings.

BACKGROUND

In March 1995, Shannon I. Hopkins, formerly known as Shannon I. Stauffer, filed a petition to dissolve her marriage to Shane Alan Stauffer. The court granted Hopkins temporary custody of the parties' three minor children and ordered Stauffer to pay temporary child support of $648 per month. In December, while the dissolution action was pending, Stauffer was charged with the attempted first degree murder of Hopkins. A decree filed in February 1996 dissolved the parties' marriage and ordered Stauffer to pay monthly child support of $648. At that time, Stauffer was in jail awaiting trial on the criminal charge. Stauffer was subsequently convicted of attempted first degree murder and was sentenced to 20 to 40 years' imprisonment. His mandatory release date is in 2015.

In 1997, Stauffer filed an application to modify his child support obligation, alleging that he lacked the financial ability to meet his obligation because he earned $56.11 a month. The district court dismissed Stauffer's petition for lack of evidence, and we affirmed. See Stauffer v. Stauffer, 8 Neb.App. xiii (No. A-97-647, Feb. 9, 1999).

In 2001, Stauffer filed another petition to modify his child support obligation. The district court determined that the petition was barred by the doctrine of res judicata, and we reversed, and remanded for further proceedings. See Stauffer v. Stauffer, No. A-02-1033, 2004 WL 1316013 (Neb.App. June 15, 2004) (not designated for permanent publication). Upon remand, the district court held a hearing and then denied Stauffer's petition. This court affirmed, relying on Ohler v. Ohler, supra, and State on behalf of Longnecker v. Longnecker, 11 Neb.App. 773, 660 N.W.2d 544 (2003). Stauffer v. Stauffer, No. A-04-1432, 2005 WL 2495420 (Neb.App. Oct. 11, 2005) (not designated for permanent publication).

On September 16, 2008, Stauffer filed the instant complaint to modify child support. He stated that he was bringing the action pursuant to Neb.Rev.Stat. § 42-364(9) (Reissue 2004) and that he was entitled to modification under § 43-512.15 because his reduction in income should be deemed involuntary due to his incarceration.

During the hearing on Stauffer's complaint, Stauffer testified that he was not incarcerated for a crime related to Neb. Rev.Stat. § 28-706 (Reissue 2008), that he had been and will be incarcerated for more than 1 year, and that he had no past of willfully failing to provide support. When the court asked Hopkins whether Stauffer had been behind in child support, she answered, "Well, yes he has. It's been garnished, but the amount is pretty much usually there." Hopkins testified that she has received $644 a month in child support for the past 8 years. During the 5 years leading up to 2000, she received no child support; but since 2000, she has received nearly the entire amount of the $648 ordered.

The district court denied Stauffer's complaint. The court recognized that Stauffer's circumstances had not changed since this court's decision in 2005. The district court found Stauffer's contention that the amendment to § 43-512.15 superseded Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985), and State v. Porter, 259 Neb. 366, 610 N.W.2d 23 (2000), to be without merit. The court stated that the statutory change did "nothing more than require the *465 authorized attorney, when exercising her or his discretion, to exclude incarceration for more than one year from the circumstances which constitute a voluntary reduction of income" and that it "does not constitute a material change in circumstances and ... does not constitute a sufficient basis, by itself, to support a reduction in child support."

Stauffer timely appeals. No brief has been filed in response to Stauffer's brief. Pursuant to authority granted to this court under Neb. Ct. R. App. P. § 2-111(B)(1) (rev.2008), this case was ordered submitted without oral argument.

ASSIGNMENTS OF ERROR

Stauffer alleges that the district court abused its discretion in determining (1) that a material change of circumstances had not occurred and (2) that new statutory law did not supersede old case law.

STANDARD OF REVIEW

Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court. Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009).

Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. Metropolitan Comm. College Area v. City of Omaha, 277 Neb. 782, 765 N.W.2d 440 (2009).

ANALYSIS

Interpretation of § 43-512.15.

This appeal centers on the effect of recent amendments to § 43-512.15 on an incarcerated parent's ability to obtain a reduction in his or her child support obligation. In 2007, the Legislature added the following underscored language to § 43-512.15(1)(b):

The variation from the guidelines is due to a voluntary reduction in net monthly income.

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Cite This Page — Counsel Stack

Bluebook (online)
775 N.W.2d 462, 18 Neb. Ct. App. 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hopkins-v-stauffer-nebctapp-2009.