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FETHERKILE v. FETHERKILE

Cite as 299 Neb. 76

Jessica Renee Fetherkile, appellee, v. 

Brandon Lee Fetherkile, appellant.

___ N.W.2d ___

Filed February 23, 2018. No. S-16-1159.

1. Statutes. Statutory interpretation presents a question of law.

2. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

3. Divorce: Child Custody: Child Support: Property Division: Alimony: 

Attorney Fees: Appeal and Error. In an action for the dissolution of 

marriage, an appellate court reviews de novo on the record the trial 

court’s determinations of custody, child support or a modification of 

an existing order of support, property division, alimony, and attorney 

fees; these determinations, however, are initially entrusted to the trial 

court’s discretion and will normally be affirmed absent an abuse of 

that discretion.

4. Judges: Words and Phrases. A judicial abuse of discretion exists if the 

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.

5. Evidence: Appeal and Error. In a review de novo on the record, the 

court is required to make independent factual determinations based upon 

the record, and the court reaches its own independent conclusions with 

respect to the matters at issue. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court 

heard and observed the witnesses and accepted one version of the facts 

rather than another.

6. Paternity: Statutes. Paternity proceedings are purely statutory, and 

such statutes must be strictly construed because they modify the common law.

7. Judgments: Jurisdiction: Claim Preclusion. Claim preclusion bars 

relitigation of any right, fact, or matter directly addressed or necessarily 

Nebraska Supreme Court Online Library

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

05/04/2018 12:10 AM CDT
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included in a former adjudication if (1) the former judgment was rendered by a court of competent jurisdiction, (2) the former judgment was 

a final judgment, (3) the former judgment was on the merits, and (4) the 

same parties or their privies were involved in both actions.

8. Claim Preclusion. The doctrine of claim preclusion bars relitigation not 

only of those matters actually litigated, but also of those matters which 

might have been litigated in the prior action.

9. ____. The doctrine of claim preclusion rests on the necessity to terminate litigation and on the belief that a person should not be vexed twice 

for the same cause.

10. Claim Preclusion: Issue Preclusion. Whether the doctrine of either 

claim preclusion or issue preclusion applies in any given case is necessarily fact dependent.

11. Child Support: Parent and Child: Statutes. Nebraska’s statutes do not 

impose a child support obligation upon any parties except the legally 

determined parents of a child.

12. Child Support: Paternity. Any order imposing an obligation of child 

support is necessarily a legal determination of paternity.

13. Child Support: Paternity: Final Orders. A paternity determination in 

a support order, under Neb. Rev. Stat. §§ 43-1411 or 43-512.04 (Reissue 

2016), is a final judgment on the issue of paternity.

14. Claim Preclusion: Judgments. For purposes of claim preclusion, a 

judgment on the merits is one which is based on legal rights, as distinguished from mere matters of practice, procedure, jurisdiction, or form.

15. Judgments: Stipulations: Final Orders. A stipulated judgment operates on the merits and is as final and binding upon the parties as a decree 

rendered after a hearing on the merits.

16. Divorce: Courts: Taxation. A state court having jurisdiction in a dissolution action has the power to allocate tax dependency exemptions as 

part of the dissolution decree.

17. Divorce: Taxation. A tax dependency exemption is nearly identical in 

nature to an award of child support or alimony.

18. Child Support: Judgments. Childcare costs may be awarded as an 

incident to child support.

19. Statutes: Legislature: Presumptions: Judicial Construction. In determining the meaning of a statute, the applicable rule is that when the 

Legislature enacts a law affecting an area which is already the subject 

of other statutes, it is presumed that it did so with full knowledge of the 

preexisting legislation and the decisions of the Supreme Court construing and applying that legislation.

20. Statutes: Appeal and Error. Statutory language is to be given its 

plain and ordinary meaning, and an appellate court will not resort to 
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interpretation to ascertain the meaning of statutory words which are 

plain, direct, and unambiguous.

21. Statutes: Legislature: Intent. In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as 

ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

22. Modification of Decree: Child Support. Under Neb. Rev. Stat. 

§ 42-364 (Reissue 2016), a court may allow an existing support order 

to remain in effect without modification after considering whether a 

modification of the existing order is warranted, rather than making an 

independent calculation of child support.

23. Due Process. Due process principles protect individuals from arbitrary 

deprivation of life, liberty, or property without due process of law.

24. Due Process: Notice. Due process does not guarantee an individual any 

particular form of state procedure; instead, the requirements of due process are satisfied if a person has reasonable notice and an opportunity to 

be heard appropriate to the nature of the proceeding and the character of 

the rights which might be affected by it.

25. Constitutional Law: Due Process. The determination of whether procedures afforded an individual comport with constitutional requirements 

for procedural due process presents a question of law.

26. Child Support. Child support orders are always subject to review 

and modification.

27. 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.

28. Modification of Decree: Child Support. Among the factors to be 

considered in determining whether a material change of circumstances 

has occurred are changes in the financial position of the parent obligated to pay support, the needs of the children for whom support 

is paid, good or bad faith motive of the obligated parent in sustaining a reduction in income, and whether the change is temporary or 

permanent.

29. ____: ____. The paramount concern in child support cases, whether in 

the original proceeding or subsequent modification, remains the best 

interests of the child.

30. Modification of Decree: Child Support: Proof. The party seeking 

the modification has the burden to produce sufficient proof that a 

material change of circumstances has occurred that warrants a modification and that the best interests of the child are served thereby.
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31. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 

2016), the equitable division of property is a three-step process. The 

first step is to classify the parties’ property as marital or nonmarital. 

The second step is to value the marital assets and marital liabilities 

of the parties. The third step is to calculate and divide the net marital 

estate between the parties in accordance with the principles contained in 

§ 42-365.

32. Property Division. Marital debt includes only those obligations incurred 

during the marriage for the joint benefit of the parties.

33. Property Division: Proof. The burden to show that a debt is nonmarital 

is on the party making that assertion.

34. Divorce: Attorney Fees. In awarding attorney fees in a dissolution 

action, a court should consider the nature of the case, the amount 

involved in the controversy, the services actually performed, the results 

obtained, the length of time required for preparation and presentation 

of the case, the novelty and difficulty of the questions raised, and the 

customary charges of the bar for similar services.

35. Courts: Attorney Fees. Courts have the inherent power to award attorney fees in certain unusual circumstances amounting to conduct during 

the course of litigation which is vexatious, unfounded, and dilatory, 

such that it amounts to bad faith.

36. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

Appeal from the District Court for Pawnee County: Daniel

E. Bryan, Jr., Judge. Affirmed.

Angelo M. Ligouri, of Ligouri Law Office, for appellant.

No appearance for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and

Funke, JJ.

Funke, J.

Brandon Lee Fetherkile appeals from a dissolution decree 

entered by the Pawnee County District Court, which dissolved 

his marriage to Jessica Renee Fetherkile. The court ruled that 

Brandon was the legal father of Ariana D. and ordered him to 
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pay child support for Ariana and two other children, pursuant 

to an order for support in a separate case.

Primarily, Brandon argues that the evidence showed that he 

was not the biological or legal father of Ariana; so, the court 

erred in finding that he was Ariana’s father and making any 

order regarding her. Further, he asserts that the court erred 

in not making an independent determination regarding child 

support and attaching a child support calculation worksheet to 

the decree.

We reject Brandon’s arguments because the existing order 

of support was res judicata on the issue of Brandon’s paternity 

and Brandon failed to elicit sufficient evidence to warrant a 

modification of the existing order of support. Further, because 

the court did not modify the existing order of support, it was 

not required to attach a worksheet to its decree. We also find 

Brandon’s remaining assignments of error to be without merit. 

Therefore, we affirm.

I. BACKGROUND

Brandon and Jessica were married in June 2010 and separated in March 2013. Jessica filed a complaint for dissolution 

in December 2014, and Brandon filed a counterclaim, which 

he labeled a cross-complaint, for dissolution in June 2015. 

Trial was held in November 2016.

Jessica has three children: a daughter, born in 2013; another 

daughter, born in 2008; and Ariana, born in 2006. In her 

complaint and during her direct testimony, Jessica alleged 

that Brandon was the legal father of all three children. In 

his counterclaim, Brandon disputed paternity over Ariana and 

requested genetic testing to determine whether he was the biological father.

In November 2014, in case No. CI 14-12, a separate proceeding in the Pawnee County District Court, the court entered 

an order for support, based upon a stipulation of the parties. 

It found that Brandon had acknowledged paternity of all three 

children, ruled that he was their father, and ordered Brandon 

to pay Jessica child support.
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At the dissolution trial, Jessica requested the court to 

continue the order of child support from case No. CI 14-12. 

Nonetheless, upon cross-examination, Jessica testified that 

Brandon was not Ariana’s biological father. Jessica also stated 

that despite the fact she had put Brandon’s name on Ariana’s 

birth certificate, he never signed it, and that Brandon had 

been pursuing legal adoption of Ariana before the separation. She also acknowledged that Brandon has two other 

children not born of the marriage, including one which was 

born around August 2016. Further, the record does not reflect 

whether the biological testing that Brandon requested was 

ever performed.

The parties did not contest the division of assets. Jessica 

requested that the parties equally split all debts incurred before 

the separation and only debts related to their children after 

the separation. She testified and entered evidence concerning 

several debts related to medical expenses for the children. 

One exhibit, however, was a collection notice for a debt 

from Jessica’s bank account that Jessica testified was incurred 

before the separation.

Jessica also requested at least $3,000 from Brandon for 

attorney fees. She stated that she incurred extra expenses in 

the proceedings because of his delays, failures to appear, last 

minute continuances, and failure to timely respond to discovery 

requests, even after her having a motion to compel granted. 

She presented evidence that she incurred $7,420 of attorney 

fees for the proceedings.

After the close of the evidence, the court ruled from 

the bench. In doing so, it stated that it was “not going to 

change the child support in this case,” because Brandon 

had failed to produce sufficient evidence of his change in 

income to justify a modification. Further, it explained that 

Brandon still had the opportunity to seek a modification of 

the support order by filing for a modification in the prior case. 

Additionally, the court divided all of the debts submitted into 

evidence equally, ordered Brandon to pay $3,000 of Jessica’s 
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attorney fees, and ordered that neither party was required to 

provide insurance for the children.

At a later date, the court signed a decree of dissolution 

which ordered Brandon to provide child support pursuant to 

the order of support in effect from case No. CI 14-12. Brandon 

filed a timely appeal. We removed the case to our docket on 

our own motion pursuant to our authority to regulate the caseloads of the Nebraska Court of Appeals and this court.1

II. ASSIGNMENTS OF ERROR

Brandon assigns, reordered and restated, that the court erred 

in (1) not attaching a Nebraska child support worksheet to the 

decree; (2) ordering child support pursuant to a prior order in 

separate proceedings; (3) not allowing Brandon to present evidence on his cross-claim or respond to Jessica’s presentation 

of evidence; (4) finding that Ariana was a child of the parties; 

(5) determining custody, parenting time, child support, and 

expenses of Ariana, because she is not Brandon’s child; (6) 

ordering child support and income tax dependencies based on 

three children; (7) equally splitting all of the parties’ outstanding bank debts; and (8) awarding Jessica attorney fees. He also 

asserts, restated, that the court’s ruling was erroneous because 

(9) it was unjust, inequitable, and could not be reached as a 

matter of law and (10) it was contrary to the evidence and the 

law and constituted an abuse of discretion.

III. STANDARD OF REVIEW

[1,2] Statutory interpretation presents a question of law.2

When reviewing questions of law, an appellate court has an 

obligation to resolve the questions independently of the conclusion reached by the trial court.3

[3] In an action for the dissolution of marriage, an appellate court reviews de novo on the record the trial court’s 

1 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).

2 White v. White, 296 Neb. 772, 896 N.W.2d 600 (2017).

3 Id.
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determinations of custody, child support or a modification 

of an existing order of support, property division, alimony, 

and attorney fees; these determinations, however, are initially 

entrusted to the trial court’s discretion and will normally be 

affirmed absent an abuse of that discretion.4

[4] A judicial abuse of discretion exists if the 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.5

[5] In a review de novo on the record, the court is required 

to make independent factual determinations based upon the 

record, and the court reaches its own independent conclusions 

with respect to the matters at issue. When evidence is in conflict, the appellate court considers and may give weight to the 

fact that the trial court heard and observed the witnesses and 

accepted one version of the facts rather than another.6

IV. ANALYSIS

1. Brandon’s Assignments of Error

Regarding Paternity and Child

Support Are Without Merit

Brandon’s first six assignments of error concern the issues 

of paternity, child support, and other determinations regarding 

Ariana. Brandon contends the court erred in finding Ariana 

to be his child and making various determinations regarding 

Ariana as a child of the parties. He also contends that the 

court violated his due process rights by adopting the order 

of support in case No. CI 14-12, rather than making its own 

independent conclusions, and preventing him from presenting 

evidence to challenge Jessica’s case or present his own case. 

Finally, Brandon contends that the court violated Neb. Ct. R. 

4 See, Marshall v. Marshall, 298 Neb. 1, 902 N.W.2d 223 (2017); Incontro 

v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009).

5 Id.

6 Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251 (2017).
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§ 4-203 (rev. 2011) by failing to attach a Nebraska child support calculation worksheet to the decree.

(a) Court Did Not Abuse Its Discretion 

in Finding Ariana to Be Child of 

Marriage or Violate Brandon’s 

Due Process Rights

Brandon asserts that the evidence shows that he is not 

Ariana’s father and that nothing in the record supports a finding that he was a legal parent of her, despite Jessica’s false 

accusation in her complaint.

[6] At common law, the father of a child born out of wedlock 

had no legal obligation to support the child; that common-law 

rule was changed by legislative action.7 Actions to determine 

paternity are governed by Neb. Rev. Stat. §§ 43-1401 through 

43-1418 (Reissue 2016). Paternity proceedings are purely statutory, and such statutes must be strictly construed because they 

modify the common law.8

Despite Brandon’s assertion, however, the order of support 

in case No. CI 14-12 was entered into evidence and contained 

a determination of paternity that, if res judicata on the issue, 

would have precluded the trial court in this case from making 

an independent determination on the issue of paternity.

We have not previously considered whether an order of support under Neb. Rev. Stat. § 43-512.04 (Reissue 2008) is res 

judicata on the issue of paternity. However, we have repeatedly held that any dissolution decree that orders child support 

is res judicata on the issue of paternity.9

[7-10] Claim preclusion bars relitigation of any right, fact, 

or matter directly addressed or necessarily included in a 

former adjudication if (1) the former judgment was rendered 

by a court of competent jurisdiction, (2) the former judgment 

7 State on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257 (2014), 

citing Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999).

8 Id.

9 Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).
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was a final judgment, (3) the former judgment was on the merits, and (4) the same parties or their privies were involved in 

both actions.10 The doctrine bars relitigation not only of those 

matters actually litigated, but also of those matters which 

might have been litigated in the prior action.11 The doctrine 

rests on the necessity to terminate litigation and on the belief 

that a person should not be vexed twice for the same cause.12

Whether either preclusion doctrine applies in any given case is 

necessarily fact dependent.13

As a threshold matter, we must consider whether Ariana’s 

paternity was directly addressed or necessarily included in the 

order of support in case No. CI 14-12.

[11,12] The issue of paternity was directly addressed in case 

No. CI 14-12 because the court’s order found that Brandon 

acknowledged paternity and ruled that he was the legal father 

of Ariana. Further, Nebraska’s statutes do not impose a child 

support obligation upon any parties except the legally determined parents of a child.14 “‘A fundamental fact necessary 

to sustain an order of child support is paternity by the man 

judicially obligated to pay such support.’”15 Thus, any order 

imposing an obligation of child support is necessarily a legal 

determination of paternity.16

Next, we must apply the four-factor test to determine if the 

order of support was res judicata. First, we consider whether 

the judgment in case No. CI 14-12 was rendered by a court of 

competent jurisdiction.

10 See In re Interest of Noah B., 295 Neb. 764, 891 N.W.2d 109 (2017). See, 

also, DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994).

11 In re Interest of Noah B., supra note 10.

12 Id.

13 Id.

14 See Stacy M. v. Jason M., 290 Neb. 141, 858 N.W.2d 852 (2015).

15 Cross, supra note 7, 257 Neb. at 781, 600 N.W.2d at 784, quoting Younkin 

v. Younkin, 221 Neb. 134, 375 N.W.2d 894 (1985).

16 See Stacy M., supra note 14.
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The order of support does not make clear whether the State 

of Nebraska initially filed the action as a paternity suit, under 

§ 43-1411, or if it petitioned for child support directly, under 

§ 43-512.04.

Under § 43-1411, a paternity action “may be instituted, in 

the court of the district where the child is domiciled or found 

. . . by . . . the state, either during pregnancy or within eighteen 

years after the child’s birth.” Further, § 43-1412 provides:

(1) . . . .

If it is determined in this proceeding that the alleged 

father is actually the father of the child, a judgment shall 

be entered declaring the alleged father to be the father of 

the child.

. . . .

(3) If a judgment is entered under this section declaring 

the alleged father to be the father of the child, the court 

shall retain jurisdiction of the cause and enter such order 

of support . . . which the court in its discretion deems 

appropriate to be paid by the father, as may be proper 

under the procedure and in the manner specified in section 43-512.04.

Section 43-512.04(1) provides that “[a]n action for child 

support or medical support may be brought separate and apart 

from any action for dissolution of marriage. The complaint 

initiating the action shall be filed with the clerk of the district 

court and may be heard by the county court or the district 

court . . . .”

As set out in § 43-1412(1), “[t]he alleged father and the 

mother shall be competent to testify.” But the testimony of 

the party that initiated the proceedings “shall not alone be sufficient to support a verdict or finding that the alleged father is 

actually the father.”17

The order in case No. CI 14-12 states that the matter was 

submitted upon the oral stipulation of the parties. Further, 

17 § 43-1412(1).
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nothing in the record suggests that either party contested the 

court’s subject matter jurisdiction over the issue of paternity 

or the court’s personal jurisdiction over the parties. As a 

result, under either statute, the Pawnee County District Court 

was a court of competent jurisdiction to determine the issue 

of paternity.

[13] Second, we consider whether the paternity determination in case No. CI 14-12 was a final judgment. In DeVaux 

v. DeVaux,

18 we held that a paternity determination contained 

in a dissolution decree was a final judgment. We reasoned, in 

part, that parties have a full and fair opportunity to litigate the 

issue of paternity in such proceedings and that “unlike alimony, 

child support, custody, or ground for divorce, paternity is not 

subject to change.”19 We find both of these reasonings to apply 

to paternity determinations under §§ 43-1411 and 43-512.04 

with equal force. Thus, the paternity determination in case No. 

CI 14-12 was a final judgment.

[14,15] Third, we must determine whether the paternity 

judgment decree was a judgment on the merits. For purposes 

of claim preclusion, a judgment on the merits is one which is 

based on legal rights, as distinguished from mere matters of 

practice, procedure, jurisdiction, or form.20 A consent decree 

or consent judgment operates on the merits and is as final and 

binding upon the parties as a decree rendered after a hearing 

on the merits.21 We see no reason why this principle would 

not extend to stipulated judgments on the merits. Accordingly, 

while case No. CI 14-12 was submitted to the court by stipulation, it was a determination on the merits of the case, rather 

than a judgment on mere technical grounds.

18 DeVaux, supra note 10.

19 Id. at 618, 514 N.W.2d at 645-46, citing Dept. of Human Services v. 

Lowatchie, 569 A.2d 197 (Me. 1990).

20 See DeVaux, supra note 10.

21 Blazek v. City of Omaha, 232 Neb. 562, 441 N.W.2d 205 (1989). See, also, 

DeVaux, supra note 10.
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Fourth, there is no dispute that both Brandon and Jessica 

were involved in case No. CI 14-12. While the action was 

initiated by the State and Jessica was a third-party defendant, 

the order of support states that both Brandon and Jessica were 

represented by counsel who appeared before the court.

Accordingly, we find that the determination of paternity over 

Ariana in the order of support in case No. CI 14-12 was res 

judicata on Brandon’s paternity and that therefore, the parties 

were precluded from relitigating the issue here.

Further, neither party appealed the final judgment in case 

No. CI 14-12 or claims that the judgment was void for want 

of jurisdiction; so, the judgment is not subject to collateral 

attack by relitigation in this case, absent compliance with 

§ 43-1412.01 or a motion to vacate or modify the decree 

in light of fraud, mistake, or as set forth in Neb. Rev. Stat. 

§ 25-2001 (Reissue 2016).22 When a judgment is attacked in 

a way other than by proceeding in the original action to have 

it vacated, reversed, or modified, or by a proceeding in equity 

to prevent its enforcement, the attack is a collateral attack.23

Even if erroneous, a judgment is not subject to collateral attack 

unless it is void, such as would be the case where a judgment 

is entered without jurisdiction over the person or subject matter.24 Therefore, the court did not abuse its discretion in finding 

that Brandon was Ariana’s legal father.

In addition, there is no concern regarding Brandon’s due 

process on the issues because the court was not able to relitigate the paternity determination, absent Brandon’s motioning 

the court to do so on specific bases not present in the record.

Even with the prior determination that Brandon was 

Ariana’s father, we note that in 2008, “the Legislature enacted 

§ 43-1412.01, which overrides res judicata principles and 

22 See Alisha C., supra note 9.

23 Bartlett v. Dawes Cty. Bd. of Equal., 259 Neb. 954, 613 N.W.2d 810 

(2000).

24 State v. Yelli, 247 Neb. 785, 530 N.W.2d 250 (1995).
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allows, in limited circumstances, an adjudicated father to 

disestablish a prior, final paternity determination based on 

genetic evidence that the adjudicated father is not the biological father.”25 We have held that § 43-1412.01 “gives the court 

discretion to determine whether disestablishment of paternity 

is appropriate in light of both the adjudicated father’s interests and the best interests of the child.”26

Section 43-1412.01 provides, in relevant part, the 

following:

An individual may file a complaint for relief and the 

court may set aside a final judgment, court order, administrative order, obligation to pay child support, or any 

other legal determination of paternity if a scientifically 

reliable genetic test . . . establishes the exclusion of the 

individual named as a father in the legal determination. 

The court shall appoint a guardian ad litem to represent 

the interest of the child.

While Brandon requested genetic testing of Ariana in his 

counterclaim, he did not request the court to disestablish 

the final determination of paternity in case No. CI 14-12. 

Additionally, while he cites to Jessica’s testimony that he 

is not Ariana’s biological father, he failed to enter into evidence the results of any genetic testing that may have been 

performed in this case. Further, the record does not reflect 

that a guardian ad litem was appointed to represent Ariana 

or that the court made a determination regarding whether 

a disestablishment of paternity was appropriate. Therefore, 

assuming without deciding that the disestablishment of paternity could have been litigated in this matter, as opposed to in 

case No. CI 14-12, the court did not abuse its discretion in 

not ruling on whether the disestablishment of paternity was 

appropriate under § 43-1412.01. As a result, there is no merit 

25 Stacy M., supra note 14, 290 Neb. at 146, 858 N.W.2d at 857.

26 Id. at 146-47, 858 N.W.2d at 857.
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to Brandon’s assignments of error regarding finding Ariana to 

be a child of the parties.

(b) Court Properly Considered Support, 

Custody, Parenting Time, Expenses, 

and Income Tax Deductions 

for Ariana

Brandon asserts that ordering him to provide support for 

Ariana and determining custody, parenting time, expenses, and 

income tax deductions regarding her were erroneous because 

he has no rights or duties regarding her.

Because Brandon’s argument that the court erred in determining that he was Ariana’s legal father was without merit, the 

assignment of error regarding child custody, parenting time, 

child support, income tax deductions, and other expenses is 

without merit. Neb. Rev. Stat. § 42-364 (Reissue 2016) grants 

the court the authority to determine child custody, parenting 

time, and child support. Additionally, § 43-1402 states that 

“[t]he father of a child whose paternity is established . . . shall 

be liable for its support to the same extent and in the same 

manner as the father of a child born in lawful wedlock is liable 

for its support.”

[16-18] Further, under Nebraska law, a state court having 

jurisdiction in a dissolution action has the power to allocate 

tax dependency exemptions as part of the dissolution decree.27

A tax dependency exemption is nearly identical in nature to 

an award of child support or alimony.28 It has also been held 

that childcare costs may be awarded as an incident to child 

support.29 Therefore, these assignments of error are without merit.

27 Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000). See, 

also, Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005).

28 Emery, supra note 27.

29 Cross, supra note 7.
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(c) Court Did Not Abuse Its Discretion 

by Declining to Modify Existing 

Support Order

In Robbins v. Robbins,

30 we held that in a dissolution action 

brought under the provisions of Neb. Rev. Stat. §§ 42-347 to 

42-379 (Reissue 1984), a court had jurisdiction to make an 

independent evaluation as to child support under § 42-351, 

but that the court must take into account and give effect to an 

earlier child support order entered under § 43-512.04 (Reissue 

1984). An action for child support, separate from a dissolution 

action, is governed by § 43-512.04 (Reissue 2008).31

At the time we decided Robbins, § 42-364 (Reissue 1984), 

which governed dissolution proceedings, did not require a 

court to determine child support in any circumstances. Since 

Robbins, the Nebraska Legislature has amended § 42-364(1)(b) 

(Reissue 2016) to provide, in relevant part, that “[t]he decree in 

an action involving the custody of a minor child shall include 

the determination of . . . child support.”32

[19-21] In determining the meaning of a statute, the applicable rule is that when the Legislature enacts a law affecting 

an area which is already the subject of other statutes, it is 

presumed that it did so with full knowledge of the preexisting 

legislation and the decisions of the Supreme Court construing and applying that legislation.33 Statutory language is to be 

given its plain and ordinary meaning, and an appellate court 

will not resort to interpretation to ascertain the meaning of 

statutory words which are plain, direct, and unambiguous.34 In 

reading a statute, a court must determine and give effect to the 

30 Robbins v. Robbins, 219 Neb. 151, 361 N.W.2d 519 (1985).

31 See § 43-512.04(1). See, also, § 43-1412(3).

32 See 2007 Neb. Laws, L.B. 554, § 32.

33 Pittman v. Western Engineering Co., 283 Neb. 913, 813 N.W.2d 487 

(2012).

34 State v. Beitel, 296 Neb. 781, 895 N.W.2d 710 (2017).
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purpose and intent of the Legislature as ascertained from the 

entire language of the statute considered in its plain, ordinary, 

and popular sense.35

[22] While the plain language of § 42-364 now requires a 

court to include a determination of child support in its dissolution decree when the action involves custody of a minor child, 

it does not require the court to make an independent calculation of child support. Because the Legislature was presumed 

to have had full knowledge of Neb. Rev. Stat. § 43-512.05 

(Reissue 2016) and our decision in Robbins when it amended 

§ 42-364, we must interpret § 42-364 in light of our holding 

in Robbins.

36 Therefore, we interpret § 42-364 to authorize a 

court to determine that an existing support order may remain in 

effect after the court has considered the current earning capacity of each parent and the child support guidelines provided by 

the Supreme Court.

Here, the order of support in case No. CI 14-12 was already 

in effect when the court ruled on the parties’ dissolution. While 

the court had jurisdiction to modify the order in its decree, 

under § 42-364, the court determined that a modification of 

the existing support order was not appropriate in this case, as 

discussed more fully in the next section. Therefore, Brandon’s 

argument that the court cannot rely on a previous order of support is without merit.

(d) Brandon’s Due Process Rights Were 

Not Violated by Court’s Determination 

That Modification of Existing Order 

of Support Was Not Warranted

Brandon contends that the court denied him due process 

by preventing him from presenting evidence regarding child 

support and his paternity of Ariana. He asserts that the court’s 

adoption of the support order in case No. CI 14-12, at 

35 Id.

36 See Robbins, supra note 30.
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Jessica’s request, precluded the court from even considering 

the matters.

[23-25] Due process principles protect individuals from arbitrary deprivation of life, liberty, or property without due process of law.37 Due process does not guarantee an individual any 

particular form of state procedure; instead, the requirements of 

due process are satisfied if a person has reasonable notice and 

an opportunity to be heard appropriate to the nature of the proceeding and the character of the rights which might be affected 

by it.38 The determination of whether procedures afforded an 

individual comport with constitutional requirements for procedural due process presents a question of law.39

Brandon argues that the evidence of both his change in 

income and his subsequently born child shows that the court 

abused its discretion in not modifying the order.

[26,27] Child support orders are always subject to review 

and modification.40 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.41

[28,29] Among the factors to be considered in determining 

whether a material change of circumstances has occurred are 

changes in the financial position of the parent obligated to 

pay support, the needs of the children for whom support is 

paid, good or bad faith motive of the obligated parent in sustaining a reduction in income, and whether the change is temporary or permanent.42 Further, the Nebraska Child Support 

Guidelines state that “[i]f applicable, earning capacity may 

37 Bryan M. v. Anne B., 292 Neb. 725, 874 N.W.2d 824 (2016).

38 Id.

39 Id.

40 Incontro, supra note 4.

41 State on behalf of B.M., supra note 7.

42 Id.
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be considered in lieu of a parent’s actual, present income and 

may include factors such as work history, education, occupational skills, and job opportunities.”43 But, the paramount 

concern in child support cases, whether in the original proceeding or subsequent modification, remains the best interests 

of the child.44

[30] Accordingly, it is invariably concluded that a reduction in child support is not warranted when an obligor parent’s 

financial position diminishes due to his or her own voluntary 

wastage or dissipation of his or her talents and assets and a 

reduction in child support would seriously impair the needs 

of the children.45 The party seeking the modification has the 

burden to produce sufficient proof that a material change of 

circumstances has occurred that warrants a modification and 

that the best interests of the child are served thereby.46

We note that no party sought a modification of the support 

order in case No. CI 14-12. As Brandon argues, Jessica asked 

the court to continue the support ordered in the preceding 

case. While Brandon filed a counterclaim, he did not request 

a reduction of the prior support order. However, because 

Brandon presented evidence seeking a reduction and the court 

did consider whether to modify the support order, we will 

review its decision.

First, we consider Brandon’s argument that he was entitled 

to a reduction in his support obligation based on a child 

that was born to him during the proceedings of the dissolution action. Neb. Ct. R. § 4-205(E) (rev. 2016) provides that 

“[s]ubject to [Neb. Ct. R.] § 4-220, credit may be given for 

biological or adopted children for whom the obligor provides 

regular support.” Neb. Ct. R. 4-220, however, limits the discretion to provide the credit, as follows:

43 Neb. Ct. R. § 4-204 (rev. 2016).

44 State on behalf of B.M., supra note 7.

45 Incontro, supra note 4.

46 See State on behalf of B.M., supra note 7.
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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.

Accordingly, the child support guidelines allow the obligor 

of an existing support award a deduction for an obligation to 

support a subsequent child only when the obligee seeks an 

upward modification of support.47 Therefore, because Jessica 

did not seek an upward modification of support, Brandon was 

not entitled to a reduction of his support obligation.

Second, we address whether the court erred in failing to 

find that Brandon proved that there was a material change of 

circumstances warranting a modification of the support order.

The court heard testimony from both parties on their financial circumstances before making its ruling not to modify the 

support order. Jessica testified that her income had increased 

by approximately $50 a month, to $1,304 a month, from 

the existing order to the time of trial. Brandon testified that 

his monthly income was about $2,600 a month until he was 

fired for missing work due to medical issues, his monthly 

income at the time of trial was about $2,000 a month from 

working a seasonal carpentry job and as a server, and he is 

actively seeking employment for at least $2,600 a month and 

has turned down job offers for $13 an hour, or about $2,180 

a month.

However, Brandon did not supplement his discovery or 

submit evidence supporting his reason for the termination of 

employment or verifying his current income. The child support 

calculation worksheet itself states that the court will “require 

copies of [the] last 2 years’ tax returns to verify ‘total income’ 

47 Schwarz v. Schwarz, 289 Neb. 960, 857 N.W.2d 802 (2015).
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figures and copies of present wage stubs to verify the pattern 

of present wage earnings.”48

While Brandon testified that his financial position had 

changed and that it was not the result of bad faith, he did 

not present any supporting evidence. Further, there was no 

evidence that the needs of the children had changed, that 

Brandon’s change in income was permanent, or that he suffered 

any decrease in earning capacity, and the evidence showed 

that Jessica’s financial position had changed only negligibly. 

Accordingly, we cannot say that the court abused its discretion 

in finding that Brandon was not entitled to a modification of 

the existing support order.

Third, because the court provided Brandon the opportunity 

to present evidence relevant to whether a material change in 

circumstances had occurred, we find his argument that he was 

denied due process on the issue to be without merit.

(e) Summary Remand of Appeal 

Is Not Required

Brandon contends that by failing to attach a Nebraska child 

support calculation worksheet to the decree, the court violated 

§ 4-203 of the child support guidelines. Section 4-203 provides 

that “[a]ll orders for child support, including modifications, 

must include a basic income and support calculation worksheet 

1, and if used, worksheet 2 or 3.”

In Rutherford v. Rutherford,

49 we considered an appeal 

from an order modifying the father’s child support obligation. 

In that case, there was no child support worksheet prepared 

by the trial court in the record and the court’s order merely 

included a calculation of the parties’ monthly net income and 

stated that it extrapolated the income figures and used the child 

support guidelines to determine the support obligations.

48 Neb. Ct. R. ch. 4, art. 2, worksheet 1, n.1 (rev. 2016). See, also, Henderson 

v. Henderson, 264 Neb. 916, 653 N.W.2d 226 (2002).

49 Rutherford v. Rutherford, 277 Neb. 301, 761 N.W.2d 922 (2009).
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We held that the court’s failure to complete a worksheet as 

to the method it used to determine the modification of child 

support was an abuse of discretion and remanded the cause for 

the court to complete the applicable worksheet. We reasoned, 

in part, that “because there is no worksheet in the record, we 

do not know why the court awarded the amount of support it 

did, except that the court extrapolated the amount set forth in 

the guidelines.”50

Further, we held:

Henceforth, if a trial court fails to prepare the applicable worksheets, the parties are required to request that 

such worksheet be included in the trial court’s order. 

Orders for child support or modification which do not 

contain such worksheets will on appeal be summarily 

remanded to the trial court so that it can prepare the 

worksheets as required by the guidelines.51

In this matter, however, the decree ordered Brandon to 

provide child support for the minor children “pursuant to the 

current Order of the District Court of Pawnee County in [case 

No. CI 14-12].” In doing so, the court did not adopt a new 

child support worksheet or calculations and merely determined 

that the existing child support order from the paternity action 

should remain the operative support obligation.

Further, the determination in the dissolution decree—that 

Brandon shall provide support pursuant to the order in case 

No. CI 14-12—was not itself an order of support or modification requiring the completion of a worksheet. As stated above, 

in Rutherford, we reasoned that an order imposing or modifying child support shall include any applicable worksheets 

with the trial court’s order so that on appeal we know why the 

court awarded the amount of support it did. As the Nebraska 

Court of Appeals has explained, “[p]erhaps the most obvious 

purpose of this requirement is to ensure that the appellate 

50 Id. at 305, 761 N.W.2d at 925-26.

51 Id. at 308, 761 N.W.2d at 927 (emphasis supplied).
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courts are not left to speculate about the trial court’s conclusions. . . . These worksheets show the parties and the appellate 

courts that the trial court has ‘“done the math.”’”52

Here, the record indicates that the prior support order and its 

accompanying child support worksheet were received into evidence as an exhibit. That exhibit showed the calculations used 

in case No. CI 14-12 to determine Brandon’s child support 

obligation. The existence in our record of the prior calculation, coupled with the fact that the court did not impose a new 

child support obligation or modify the previous child support 

obligation, renders our holding in Rutherford inapplicable here. 

Therefore, this assignment of error is without merit.

We note that while Rutherford is not applicable here, there 

may be circumstances where a child support worksheet is 

required to show the court’s findings that a new support order 

should not be imposed or a previous support order should not 

be modified. In addition, it is important that the trial court 

make clear, as it did here, that no additional child support 

order is being implemented and that the previous order remains 

the operative support obligation, so as to simplify the child 

support collection process.

2. Bank Debt Was Marital Debt

Brandon contends that it was inequitable to order him to 

pay one-half of the bank debt, or $411.97. He argues that the 

collection notice, dated September 18, 2014, and Jessica’s 

testimony that it was marital were insufficient because there 

was no evidence showing what the debt was for or when it 

was incurred.

Under Nebraska’s divorce statutes, “[t]he purpose of a 

property division is to distribute the marital assets equitably 

between the parties.”53 The ultimate test in determining the 

52 Molina v. Salgado-Bustamante, 21 Neb. App. 75, 82-83, 837 N.W.2d 553, 

559 (2013).

53 Neb. Rev. Stat. § 42-365 (Reissue 2016).
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appropriateness of the division of property is fairness and reasonableness as determined by the facts of each case.54

[31] Under § 42-365, the equitable division of property is 

a three-step process. The first step is to classify the parties’ 

property as marital or nonmarital. The second step is to value 

the marital assets and marital liabilities of the parties. The third 

step is to calculate and divide the net marital estate between 

the parties in accordance with the principles contained in 

§ 42-365.55

[32,33] Marital debt includes only those obligations incurred 

during the marriage for the joint benefit of the parties.56 The 

burden to show that a debt is nonmarital is on the party making 

that assertion.57

At the hearing, Brandon’s attorney questioned Jessica about 

the debt. Shortly after Brandon’s attorney began the questioning, however, Jessica’s attorney objected to a question and, 

without ruling, the court directed Brandon’s attorney to “move 

on.” Brandon’s attorney neither objected to the court’s direction nor made an argument as to why he needed to elicit additional evidence on the subject.

Brandon generally assigned error to the court’s not permitting him to respond to Jessica’s presentation of evidence. However, an issue not presented to or decided by the 

trial court is not appropriate for consideration on appeal.58

Accordingly, we will not consider whether the court erred in 

preventing Brandon from eliciting further evidence on this 

issue, because Brandon’s attorney did not adequately present 

the issue to the trial court. Instead, we will consider only the 

record before us.

54 Bergmeier v. Bergmeier, 296 Neb. 440, 894 N.W.2d 266 (2017).

55 See Osantowski, supra note 6.

56 Millatmal v. Millatmal, 272 Neb. 452, 723 N.W.2d 79 (2006).

57 Id.

58 Wayne L. Ryan Revocable Trust v. Ryan, 297 Neb. 761, 901 N.W.2d 671 

(2017).
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Jessica testified that the bank debt was incurred while the 

parties were living together. Brandon presented no evidence 

that the debt was not incurred before the parties separated 

or that it was not for the parties’ joint benefit. Accordingly, 

Brandon failed to satisfy his burden to show that this debt 

was nonmarital. Therefore, this assignment of error is without merit.

3. District Court Did Not Abuse

Its Discretion in Awarding

Jessica Attorney Fees

Brandon contends that the court’s award of $3,000 for 

attorney fees to Jessica was an abuse of discretion. He argues 

that under the relevant considerations for granting attorney 

fees, the circumstances of this case did not warrant making an 

award—in light of the short duration of the parties’ marriage, 

the simplicity of issues in the dissolution, and both parties’ lack 

of financial resources.

[34,35] In awarding attorney fees in a dissolution action, 

a court should consider the nature of the case, the amount 

involved in the controversy, the services actually performed, 

the results obtained, the length of time required for preparation and presentation of the case, the novelty and difficulty 

of the questions raised, and the customary charges of the bar 

for similar services.59 Additionally, courts have the inherent 

power to award attorney fees in certain unusual circumstances 

amounting to conduct during the course of litigation which 

is vexatious, unfounded, and dilatory, such that it amounts to 

bad faith.60

While we agree that the issues involved in the dissolution 

were not overly complex and the marital estate was minuscule, the proceedings lasted nearly 2 years and the attorney 

fees Jessica incurred were consistent with the proceedings. 

59 Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015).

60 See White, supra note 2.
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Further, the court’s partial granting of attorney fees was rationally related to the additional expenses incurred regarding 

the motion to compel and motion for sanctions filed against 

Brandon for failing to respond to Jessica’s discovery and the 

motion to withdrawal of Brandon’s attorney shortly before the 

scheduled final hearing. Therefore, we conclude that the court 

did not abuse its discretion by ordering Brandon to pay $3,000 

of attorney fees.

4. Remaining Assignments

of Error

[36] Brandon also generally assigns error to the court’s 

decision as an abuse of discretion and incorrect as a matter of 

law. Concerning Brandon’s specific assignments of error, these 

assignments are without merit. In regard to any other rulings 

included in the court’s order, we do not consider assignments 

of error that are not both specifically assigned and argued. To 

be considered by an appellate court, an alleged error must be 

both specifically assigned and specifically argued in the brief 

of the party asserting the error.61

V. CONCLUSION

In the order of support entered by the Pawnee County 

District Court, in case No. CI 14-12, Brandon was ruled to 

be the legal father of Ariana and ordered to support her. The 

determination of paternity in case No. CI 14-12 was res judicata on the issue of paternity and could not be challenged in 

this case, absent Brandon’s pleading or motion for specific 

relief. Accordingly, the court’s rulings regarding Ariana were 

all within its authority in entering the dissolution decree.

Further, while Brandon presented evidence that he was 

entitled to a modification of the order of support, the court 

did not abuse its discretion in considering the support order 

in case No. CI 14-12 and determining that Brandon had not 

61 Waldron v. Roark, 298 Neb. 26, 902 N.W.2d 204 (2017).
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proved that a material change in circumstances had occurred. 

Because the court did not modify the existing order of support, it was not required to attach a child support calculation 

worksheet to the decree.

We also conclude that the court did not abuse its discretion 

in distributing the marital debts or awarding Jessica attorney 

fees. Finally, the record does not show that Brandon’s due 

process rights were violated regarding any of the issues on 

appeal. Therefore, we affirm.

Affirmed.

Wright, J., not participating.