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STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.

Cite as 299 Neb. 329

State of Nebraska on behalf of the State

Indiana and Fernando L., a m

appellee, v. Rogelio L., appell

___ N.W.2d ___

Filed March 16, 2018. No. S-17-348.

1. Modification of Decree: Child Support: Appeal and Error. 

Modification of child support payments is entrusted to the trial court’s 

discretion, and although, on appeal, the issue is reviewed de novo on the 

record, the decision of the trial court will be affirmed absent an abuse 

of discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion exists when 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition.

3. Child Support: Rules of the Supreme Court: Appeal and Error. 

Interpretation of the Nebraska Child Support Guidelines presents a question of law. An appellate court resolves questions of law independently 

of the lower court’s conclusion.

4. Child Support: Rules of the Supreme Court. In calculating a parent’s 

child support obligation, the Nebraska Child Support Guidelines permit 

a court to deduct a parent’s obligation to support subsequent children 

from his or her monthly income in some circumstances.

5. ____: ____. The Nebraska Supreme Court interprets the expression 

“subsequent children” in Neb. Ct. R. § 4-220 to mean children born after 

an existing support order.

6. Modification of Decree: Child Support: Proof. A party seeking to 

modify a child support order must show a material change in circumstances which (1) occurred subsequent to the entry of the original decree 

or previous modification and (2) was not contemplated when the decree 

was entered.

7. Child Support: Rules of the Supreme Court: Taxes. In calculating 

a parent’s monthly net income for child support purposes, Neb. Ct. R. 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/30/2018 01:13 AM CDT
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STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.

Cite as 299 Neb. 329

§ 4-205(A) (rev. 2016) allows a deduction for taxes, as established by 

standard deductions applicable to the number of exemptions provided 

by law.

8. Appeal and Error. An appellate court is not obligated to engage in an 

analysis which is not needed to adjudicate the controversy before it.

Appeal from the District Court for Adams County: Ter

S. Harder, Judge. Affirmed in part, and in part reversed an

remanded with directions.

Jamie L. Arango, of Arango Law, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, 

Funke, J

Miller-Lerman

INTRODUCTION

Rogelio L. appeals the order of the district court for Adams 

County that dismissed his March 2, 2016, complaint for a 

downward modification of his child support obligation to his 

son, Fernando L., originally ordered at $388 per month on 

August 18, 2010. The district court concluded that Rogelio 

had not shown a material change in circumstances warranting a reduction in his monthly child support obligation to 

Fernando. No tax returns or financial documents were in 

evidence; Rogelio testified about his income and admitted 

that he did not pay taxes. The district court determined that 

Rogelio should not receive any deduction from his total 

monthly income for taxes. The district court also found 

that Rogelio’s three “after-born” children could not be used 

to lower his child support obligation to Fernando. Rogelio 

appeals. We find no error in the district court’s determination 

regarding taxes and affirm this ruling. However, because we 

conclude that the district court based its child support calculation on an incorrect understanding of the birth order of 

Rogelio’s children relative to Fernando and the 2010 child 
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STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.

Cite as 299 Neb. 329

support order, we reverse this aspect of the order and remand 

the cause with directions.

BACKGROUND

2010 Orde

In 2010, the State brought an action against Rogelio pursuant to the Uniform Interstate Family Support Act to establish 

Rogelio’s paternity of and child support obligation to his 

son Fernando, who was born in June 2004 and lived with 

his mother in Indiana. In an order filed August 18, 2010, 

the district court for Adams County found that Rogelio was 

Fernando’s father and ordered him to pay child support of $388 

per month. The district court based its calculation on Rogelio’s 

net monthly income of $1,291.31, which took into account 

his regular support of two other children. While the original 

support order did not include the names or ages of these other 

children, it is apparent from the record as a whole that they are 

Sheryl L., born in 2007, and a son, born in 2009. The record 

indicates, but does not explicitly state, that Rogelio’s son born 

in 2009 died in 2012.

2016 Complai

On March 2, 2016, Rogelio filed a complaint for modification of his child support obligation to Fernando. He alleged that 

there had been a material change in circumstances, because his 

income had decreased by an amount that would reduce his 

child support obligation by at least 10 percent and because his 

income fell below the federal poverty guidelines. See, Neb. Ct. 

R. § 4-217; Neb. Ct. R. § 4-218 (rev. 2018).

2016 Referee Repo

The matter was referred to a child support referee who conducted a hearing and prepared a report. The bill of exceptions 

from the hearing is not in the record before us. However, the 

referee’s report, filed October 31, 2016, recounted Rogelio’s 

testimony that he netted $400 per week (projected as $1,733.33 

per month) working as a handyman and that he paid no 
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STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.

Cite as 299 Neb. 329

taxes—income taxes or payroll taxes—on this income. The referee stated that according to Rogelio, he had “one older child 

than the child at issue in this action,” which “older child” was 

“8 years old,” as well as two younger children, ages 1 and 2. 

As an aside, we note that Fernando, born in June 2004, was 12 

years old at the time of the referee’s report, making the finding 

that an “8-year-old” was “older” inaccurate.

Using a net monthly income of $1,733.33 and applying a 

setoff for regular support of the “8-year-old” child, but not for 

the two younger children, the referee reduced Rogelio’s child 

support obligation to Fernando from $388 per month to $346 

per month. The referee, however, rejected Rogelio’s arguments 

that he should receive a deduction for his income tax liability 

and that his income fell below the poverty level.

2017 District Court 

Rogelio filed exceptions to the referee’s report that had 

recommended a reduction of his child support from $388 to 

$346 per month. He requested that the district court reverse 

and vacate the referee’s report. Rogelio alleged, inter alia, that 

the referee was mistaken in the birth order and ages of his children and the application of poverty guidelines. A hearing was 

conducted on February 28, 2017, and the record of that hearing 

has been submitted to us. At that hearing, Rogelio testified and 

the district court received evidence consisting of three birth 

certificates and several child support calculations. Rogelio 

did not offer the bill of exceptions from proceedings with the 

referee. Ultimately, the district court dismissed Rogelio’s complaint in an order filed March 17, 2017, from which this appeal 

is taken.

At the hearing on the matter on February 28, 2017, Rogelio 

clarified the birth order and ages of his children. He produced 

evidence that at the time of the hearing, he and his current spouse had three children, all of whom were born after 

Fernando’s birth in 2004. The birth years of the other children 

are: 2007, 2014, and 2015. The record indicates that Fernando 

also had another child, a son born in 2009, who died in 2012. 
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STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.

Cite as 299 Neb. 329

We summarize the evidence concerning these children again in 

the analysis below. Taking the record as a whole, the evidence 

shows that Fernando and two other children were born before 

the 2010 child support order; support for the two other children was included in the 2010 child support calculation; one of 

those two other children died after the 2010 order but before 

the current modification proceedings; and, in addition, two 

children were born after the 2010 child support order.

Rogelio testified that healthcare for Fernando’s three surviving half siblings is covered by Medicaid and that Rogelio’s 

spouse was not employed but was able to work.

At the hearing, Rogelio testified that he formerly worked for 

a company that paid him $15 per hour and withheld taxes from 

his paycheck. However, he testified that at the time of this 

hearing, his current employer paid him $10 per hour in cash for 

working 40 hours per week and he does not pay any taxes. He 

stated he understood that he was required by law to pay taxes 

and that if he did not do so now, he would be forced to do so 

in the future.

As noted, the record does not contain any income tax returns 

or pay stubs, but the district court received proposed child support calculations offered by Rogelio and the State. Rogelio’s 

calculations deducted amounts for taxes to determine his net 

monthly income. The State’s calculations did not deduct taxes, 

and the district court adopted the State’s calculations.

In an order filed March 17, 2017, the district court dismissed Rogelio’s request for modification. Regarding the 

children, it concluded that there were certain factual errors 

in the referee’s report regarding their ages and birth order. 

Specifically, the district court noted that Fernando was the 

oldest of Rogelio’s children. But it found that all of Rogelio’s 

other children were “after-born,” presumably in relation to 

Fernando and after the existing 2010 child support order. 

Based on this finding, the district court made no deduction for 

Rogelio’s other children either as “Child Support Previously 

Ordered” or as “Regular Support.” Regarding taxes, the district court rejected Rogelio’s argument that although he does 
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STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.

Cite as 299 Neb. 329

not pay taxes, he should receive a deduction from his total 

monthly income for the taxes he should be paying. That is, 

like the referee, the district court adopted the State’s position 

that Rogelio should not receive a deduction for taxes he does 

not pay.

With these determinations in mind, the district court recalculated Rogelio’s child support obligation for Fernando. It concluded that Rogelio’s obligation should have increased rather 

than decreased, because he could not receive a deduction for 

support of his other children and because, without a deduction for taxes, his monthly net income had actually increased. 

Rogelio appeals from the March 17, 2017, order.

ASSIGNMENTS OF ERROR

Rogelio claims, combined and restated, that the district 

court erred when it (1) performed child support calculations 

based on incorrect findings regarding the children’s birth 

order and existing child support and (2) failed to deduct his 

tax liability from his monthly income. He also contends that 

a poverty assessment of his circumstances should be made in 

this case.

STANDARDS OF REVIEW

[1,2] Modification of child support payments is entrusted to 

the trial court’s discretion, and although, on appeal, the issue 

is reviewed de novo on the record, the decision of the trial 

court will be affirmed absent an abuse of discretion. Pearson 

v. Pearson, 285 Neb. 686, 828 N.W.2d 760 (2013). A judicial 

abuse of discretion exists when reasons or rulings of a trial 

judge are clearly untenable, unfairly depriving a litigant of a 

substantial right and denying just results in matters submitted 

for disposition. Schwarz v. Schwarz, 289 Neb. 960, 857 N.W.2d 

802 (2015).

[3] Interpretation of the Nebraska Child Support Guidelines 

presents a question of law. Schwarz v. Schwarz, supra. We 

resolve questions of law independently of the lower court’s 

conclusion. Id.
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STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.

Cite as 299 Neb. 329

ANALYSIS

Child Support and Other Ch

Rogelio contends that the district court erred in performing 

child support calculations based on incorrect findings regarding the children’s birth order. He claims that the district court 

erred when it failed to distinguish between children born after 

Fernando but before the 2010 child support order and children 

born subsequent to the 2010 child support order. Given the 

record, we agree that the district court erred.

[4] In calculating a parent’s child support obligation, the 

Nebraska Child Support Guidelines permit a court to deduct 

a parent’s obligation to support subsequent children from his 

or her monthly income in some circumstances. Neb. Ct. R. 

§ 4-205(E) (rev. 2016) provides that “[s]ubject to § 4-220, 

credit may be given for biological or adopted children for 

whom the obligor provides regular support.” Neb. Ct. R. 

§ 4-220 sets forth a limitation on credit for support of subsequent children:

An obligor shall not be allowed a reduction in an 

existing support order solely because of the birth, adoption, or acknowledgment of subsequent children of the 

obligor; however, a duty to provide regular support for 

subsequent children may be raised as a defense to an 

action for an upward modification of such existing support order.

[5,6] Based on our reading of § 4-220, we interpret the 

expression “subsequent children” to mean children born after 

an existing support order. This interpretation of “subsequent 

children” is consistent with the jurisprudence of modification, 

which contemplates a circumstance that was not present at 

the time of the original decree. It is well settled that a party 

seeking to modify a child support order must show a material change in circumstances which (1) occurred subsequent to 

the entry of the original decree or previous modification and 

(2) was not contemplated when the decree was entered. State 

on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257 
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Cite as 299 Neb. 329

(2014). And our understanding of “subsequent children” as 

children born after the existing support order is borne out in 

our case law. See, e.g., Wilkins v. Wilkins, 269 Neb. 937, 697 

N.W.2d 280 (2005) (regarding child born after existing support 

order as subsequently born child for purposes of paragraph T 

of guidelines, predecessor to § 4-220).

In this case, the district court referred to all of Rogelio’s 

children, other than Fernando, as “after-born” and, therefore, 

concluded that Rogelio could not use them in a calculation 

to lower his support. In essence, the district court classified all three of Rogelio’s children who were younger than 

Fernando as children born subsequent to the existing support 

order for the purposes of § 4-220. As Rogelio points out, since 

Sheryl was born in 2007, this finding is inconsistent with the 

evidence; and it shows an incorrect reading of the 2010 support order.

Taking the record as a whole, the birth order of Rogelio’s 

children, relative to the original 2010 support order for 

Fernando, is as follows:

Date Event

June 2004 Fernando born

December 2007 Sheryl born

2009 Unnamed son born

August 18, 2010 Order of child support for Fernando

2012 Unnamed son dies

August 2014 Zoey L. born

August 2015 Roy L. born

We note that the existing 2010 child support order showed 

deductions for the regular support of two children; given the 

record, the two children must be Sheryl, born in 2007, and a 

son who was born in 2009 and died in 2012. Clearly, in 2017, 

the district court was correct in not considering a deduction for 

regular support of Rogelio’s deceased son; however, the same 

cannot be said for Sheryl.

At its core, this case seeks to modify the 2010 order, which 

was premised on the existence of Fernando plus Rogelio’s 

obligation to two other children. A trial court has discretion 
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STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.

Cite as 299 Neb. 329

to choose whether and how to calculate a deduction for subsequent children. See, § 4-220; Schwarz v. Schwarz, 289 Neb. 

960, 857 N.W.2d 802 (2015). However, in this case, the district court has mistakenly referred to Sheryl, whose existence 

and regular support was acknowledged in the 2010 order, as a 

child subsequent to the 2010 order. The district court did not 

incorporate or analyze Rogelio’s entitlement to a deduction for 

Sheryl’s support, as is allowed under the guidelines and as was 

done in the existing 2010 support order under review by the 

district court. We believe that the district court’s misstatement 

of the facts led to an erroneous application of the relevant law 

and calls into question the soundness of the calculation upon 

which the district court’s order is based. Consequently, we 

conclude that the district court abused its discretion and we 

reverse, and remand with directions to render a calculation 

based on the record, including evidence received at the hearing 

on February 28, 2017.

Tax Liab

Rogelio asserts that the district court erred in declining 

to allow him a deduction from his total monthly income for 

taxes for which he was liable but did not pay. Due to a failure 

of proof, we find no error in the district court’s treatment of 

Rogelio’s tax liability in the 2017 order, and we affirm this 

aspect of the district court’s order.

[7] In calculating a parent’s monthly net income for child 

support purposes, § 4-205(A) allows a deduction for taxes, as 

established by standard deductions applicable to the number 

of exemptions provided by law. The guidelines further provide 

that copies of at least 2 years’ tax returns, financial statements, 

and current wage stubs should be furnished to the court for 

purposes of determining the parents’ income in order to calculate child support. Neb. Ct. R. § 4-204 (rev. 2016); Neb. Ct. 

R. ch. 4, art. 2, worksheet 1 (rev. 2016). Our cases recognize 

that a failure to provide the proper documents limits the district 

court’s analysis. See, e.g., Henderson v. Henderson, 264 Neb. 

916, 653 N.W.2d 226 (2002).
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STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.

Cite as 299 Neb. 329

In the instant case, Rogelio did not submit any tax returns 

or other documentary evidence of his wages at the time of the 

modification hearing before the district court. However, he 

did testify that he was paid $400 per week in cash and that he 

did not pay any taxes, although he acknowledged that he was 

required by law to pay them.

The record in State on behalf of Andrew D. v. Bryan B., 22 

Neb. App. 914, 864 N.W.2d 249 (2015), presented a circumstance involving a limited record. In that case, the father did 

not keep consistent business records and had not filed personal 

or business tax returns for several years. On appeal, the father 

claimed that the trial court erred in basing his income on 

speculation. In rejecting the father’s contention, the Nebraska 

Court of Appeals observed, “[The father] put himself in the 

position in which he now claims error. There was no clear 

evidence of his income because he voluntarily failed to file tax 

returns . . . and does not keep reliable or complete business 

records.” Id. at 922, 864 N.W.2d at 256.

We find the reasoning in State on behalf of Andrew D. v. 

Bryan B., supra, to be instructive here. Rogelio presented the 

district court with limited evidence upon which to base its 

child support calculations, and Rogelio’s own testimony that he 

did not pay taxes supported the district court’s refusal to deduct 

them from his income. Although at oral argument, Rogelio 

referred to income-related documents which were purportedly 

before the referee, Rogelio did not put the proceedings with the 

referee in evidence and they were therefore not available for 

the district court’s or this court’s consideration. Compare State 

on behalf of Lockwood v. Laue, 24 Neb. App. 909, 900 N.W.2d 

582 (2017). Accordingly, the district court did not abuse its discretion when it declined to deduct Rogelio’s tax liability from 

his monthly income and we affirm the portion of the district 

court’s order concerning a deduction for taxes.

Poverty Assessm

[8] Rogelio claims that the district court erred when it 

did not consider the basic subsistence limitation set forth in 
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STATE ON BEHALF OF FERNANDO L. v. ROGELIO L.

Cite as 299 Neb. 329

§ 4-218, which provides that a parent’s support, child care, 

and health care obligation shall not reduce his or her net 

income below the federal poverty guidelines. Given that we 

have rejected the district court’s child support calculation 

and, with the exception of the tax-related ruling, reversed the 

March 17, 2017, order and remanded the cause with directions, we need not consider this issue. An appellate court is 

not obligated to engage in an analysis which is not needed to 

adjudicate the controversy before it. In re Interest of Nicole 

M., 287 Neb. 685, 844 N.W.2d 65 (2014). However, following 

a child support calculation on remand in accordance with the 

guidelines, consideration of the basic subsistence limitation 

may be warranted.

CONCLUSION

For the reasons stated above, we conclude that the district 

court did not err in its ruling regarding taxes and we affirm 

this portion of the order. However, we conclude that the district 

court abused its discretion in basing its child support calculation on a flawed understanding of the evidence regarding the 

birth order of the children and Rogelio’s support obligations as 

required by the 2010 order, and we reverse, and remand with 

directions to enter an order in accordance with a child support 

calculation based on the record, including evidence received at 

the hearing on February 28, 2017.

 Affirmd in part and in part 

and remanded with dire

Wright and Kelch, JJ., not participat