§ 42-358 — Attorney for minor child; appointment; powers; child or spousal support; records; income withholding; contempt proceedings; fees; evidence; appeal

Nebraska § 42-358

• Jurisdiction: Nebraska
• Ch. 42: Households and Families

Text

(1) The court may appoint an attorney to protect the interests of any minor children of the parties. Such attorney shall be empowered to make independent investigations and to cause witnesses to appear and testify on matters pertinent to the welfare of the children. The court shall by order fix the fee, including disbursements, for such attorney, which amount shall be taxed as costs and paid by the parties as ordered. If the court finds that the party responsible is indigent, the court may order the county to pay the costs.
(2) Following entry of any decree, the court having jurisdiction over the minor children of the parties may at any time appoint an attorney, as friend of the court, to initiate contempt proceedings for failure of any party to comply with an order of the court directing such party to pay temporary or permanent child support. The county attorney or authorized attorney may be appointed by the court for the purposes provided in this section, in which case the county attorney or authorized attorney shall represent the state.
(3) The clerk of each district court shall maintain records of support orders. The Title IV-D Division of the Department of Health and Human Services shall maintain support order payment records pursuant to section 43-3342.01 and the clerk of each district court shall maintain records of payments received pursuant to sections 42-369 and 43-3342.01 . For support orders in all cases issued before September 6, 1991, and for support orders issued or modified on or after September 6, 1991, in cases in which no party has applied for services under Title IV-D of the federal Social Security Act, as amended, each month the Title IV-D Division shall certify all cases in which the support order payment is delinquent in an amount equal to the support due and payable for a one-month period of time. The Title IV-D Division shall provide the case information in electronic format, and upon request in print format, to the judge presiding over domestic relations cases and to the county attorney or authorized attorney. A rebuttable presumption of contempt shall be established if a prima facie showing is made that the court-ordered child or spousal support is delinquent. In cases in which one of the parties receives services under Title IV-D of the federal Social Security Act, as amended, the Title IV-D Division shall certify all such delinquent support order payments to the county attorney or the authorized attorney.
In each case certified, if income withholding has not been implemented it shall be implemented pursuant to the Income Withholding for Child Support Act. If income withholding is not feasible and no other action is pending for the collection of support payments, the court shall appoint an attorney to commence contempt of court proceedings. If the county attorney or authorized attorney consents, he or she may be appointed for such purpose. The contempt proceeding shall be instituted within ten days following appointment, and the case shall be diligently prosecuted to completion. The court shall by order fix the fee, including disbursements, for such attorney, which amount shall be taxed as costs and paid by the parties as ordered. Any fees allowed for the services of any county attorney or authorized attorney shall be paid to the Department of Health and Human Services when there is an assignment of support to the department pursuant to section 43-512.07 or when an application for child support services is on file with a county attorney or authorized attorney. If the court finds the party responsible is indigent, the court may order the county to pay the costs.
(4) If, at the hearing, the person owing child or spousal support is called for examination as an adverse party and such person refuses to answer upon the ground that his or her testimony may be incriminating, the court may, upon the motion of the county attorney or authorized attorney, require the person to answer and produce the evidence. In such a case the evidence produced shall not be admissible in any criminal case against such person nor shall any evidence obtained because of the knowledge gained by such evidence be so admissible.
(5) The court may order access to all revenue information maintained by the Department of Revenue or other agencies concerning the income of persons liable or who pursuant to this section and sections 42-358.08 and 42-821 may be found liable to pay child or spousal support payments.
(6) Any person aggrieved by a determination of the court may appeal such decision to the Court of Appeals.

Legislative History

Source: Laws 1972, LB 820, § 12; Laws 1974, LB 961, § 1; Laws 1975, LB 212, § 1; Laws 1976, LB 926, § 1; Laws 1978, LB 960, § 1; Laws 1985, Second Spec. Sess., LB 7, § 10; Laws 1991, LB 457, § 1; Laws 1991, LB 732, § 101; Laws 1992, LB 1184, § 11; Laws 1994, LB 1224, § 43; Laws 1996, LB 1044, § 99; Laws 1996, LB 1155, § 7; Laws 1997, LB 307, § 16; Laws 2000, LB 972, § 9; Laws 2002, LB 1062, § 2; Laws 2005, LB 396, § 1; Laws 2007, LB296, § 56. Cross References: Income Withholding for Child Support Act, see section 43-1701. Annotations: 1. Appointment of guardian ad litem 2. Evidence admissible 3. Miscellaneous 1. Appointment of guardian ad litem This section authorizes a court to appoint an attorney or guardian ad litem to protect the interests of minor children and allows the attorney or guardian ad litem to recover his or her fees. Mitchell v. French, 267 Neb. 656, 676 N.W.2d 361 (2004). An attorney appointed under this section is an advocate for the minor child and is not a guardian ad litem. An attorney appointed under this section shall act as attorney for the minor child, but shall not testify in the proceedings. From June 1, 1998, forward, when appointing a guardian ad litem or an attorney to represent the interests of the minor pursuant to this section in forums other than the juvenile court, the appointing court, in the order making the appointment, shall specify whether the person appointed is to act as a guardian ad litem or as an attorney pursuant to this section. One person may not serve in both capacities. Betz v. Betz, 254 Neb. 341, 575 N.W.2d 406 (1998). Under subsection (1) of this section, the appointment of a guardian ad litem in a marital dissolution proceeding is a matter within the sound discretion of the trial court. Ritter v. Ritter, 234 Neb. 203, 450 N.W.2d 204 (1990). Appointment of a guardian ad litem is a discretionary matter. Generally, adequate representation by counsel for the respective parties, independent investigative power of the court, and continuing jurisdiction over minors protect the children's interests adequately. Chalupa v. Chalupa, 220 Neb. 704, 371 N.W.2d 706 (1985). The court has authority to appoint a guardian ad litem to protect the interest of a minor child. Nye v. Nye, 213 Neb. 364, 329 N.W.2d 346 (1983). When there is adequate representation of both parties to the dissolution, the trial court has made an independent investigation of the children's situation, and the court has continuing jurisdiction over the children, it is not error for the court to deny a request to appoint a guardian ad litem for the children. Deacon v. Deacon, 207 Neb. 193, 297 N.W.2d 757 (1980). When it appears that minor children in a divorce action may have interests, independent of the parents, in the outcome of the litigation, the district court should ordinarily appoint counsel to represent them. Ford v. Ford, 191 Neb. 548, 216 N.W.2d 176 (1974). District court may appoint attorney for minor children and limits on its discretion to do so must evolve case by case. Pieck v. Pieck, 190 Neb. 419, 209 N.W.2d 191 (1973). 2. Evidence admissible Issues of visitation and previous failure to enforce a child support order are not relevant to proceedings under section 42-358, R.R.S.1943, or section 42-364.01, R.R.S.1943. Eliker v. Eliker, 206 Neb. 764, 295 N.W.2d 268 (1980). In a divorce case, ex parte investigative reports are not evidence, and cannot be the basis for any adjudication. Jorgensen v. Jorgensen, 194 Neb. 271, 231 N.W.2d 360 (1975). 3. Miscellaneous Subsection (1) of this section permits the district court to order the county to pay attorney fees and expenses only when a responsible party is indigent. White v. White, 296 Neb. 772, 896 N.W.2d 600 (2017). When an indigence hearing takes place after the appointment of a guardian ad litem and the ordering of fees, a trial court's determination of indigence should depend upon a party's finances at the time of the indigence hearing. White v. White, 293 Neb. 439, 884 N.W.2d 1 (2016). This section allows for payment of guardian ad litem fees by a county only if a court finds that the party responsible is indigent. Mitchell v. French, 267 Neb. 656, 676 N.W.2d 361 (2004). This section is applicable to cases that begin as paternity actions in which the only controverted issues are custody and child support. Mitchell v. French, 267 Neb. 656, 676 N.W.2d 361 (2004). A finding of indigency is a matter within the initial discretion of the trial court, and such a finding will not be set aside on appeal in the absence of an abuse of discretion by the trial court. Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004). Under subsection (1) of this section, a person is indigent if he or she is unable to pay the guardian ad litem or attorney fees without prejudicing, in a meaningful way, his or her financial ability to provide the necessities of life, such as food, clothing, shelter, medical care, et cetera, for himself or herself or his or her legal dependents. Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004). A proceeding brought under this section is civil in nature. Eliker v. Eliker, 206 Neb. 764, 295 N.W.2d 268 (1980). Counsel, appointed for children, participated in trial and appeal, and his fee was taxed to appellant as costs. Hermance v. Hermance, 194 Neb. 720, 235 N.W.2d 231 (1975). Because subsection (1) of this section designates guardian ad litem fees as "costs," they must be determined by the time of the entry of a final, appealable order. McCaul v. McCaul, 17 Neb. App. 801, 771 N.W.2d 222 (2009). Under subsection (3) of this section, the clerk of the district court must certify that the court-ordered child support is delinquent in an amount equal to the support due and owing payable for a 1-month period of time and report this amount to the county attorney or authorized attorney. McKibbin v. State, 5 Neb. App. 570, 560 N.W.2d 507 (1997). The language of subsection (1) of this section requires that the fees and disbursements of an attorney appointed pursuant to subsection (1) "shall" be taxed as costs and paid by the parties as ordered. The county "may" be ordered to pay the amount so taxed as costs, but only upon a finding that the party responsible is indigent. Brackhan v. Brackhan, 3 Neb. App. 143, 524 N.W.2d 74 (1994).