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SELLERS v. SELLERS

Cite as 23 Neb. App. 219

Jason Sellers, appellant, v. 

Stephanie Sellers, appellee, 

and State of Nebraska, 

intervenor-appellee.

___ N.W.2d ___

Filed September 1, 2015. No. A-14-665.

1. Modification of Decree: Child Support: Appeal and Error. An appellate court reviews proceedings for modification of child support de novo 

on the record and will affirm the judgment of the trial court 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. Interpretation of the 

Nebraska Child Support Guidelines presents a question of law.

4. Judgments: Appeal and Error. An appellate court resolves questions 

of law independently of the lower court’s conclusion.

5. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility.

6. Judges: Evidence: Appeal and Error. The exercise of judicial discretion is implicit in determining the relevance of evidence, and a trial 

court’s decision regarding relevance will not be reversed absent an abuse 

of discretion.

7. 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.
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8. Courts: Child Support. The trial court has discretion to choose whether 

and how to calculate a deduction for subsequent children.

9. Child Support. No precise mathematical formula exists for calculating 

child support when subsequent children are involved, but the court must 

perform the calculation in a manner that does not benefit one family at 

the expense of the other.

10. Modification of Decree: Child Support: Proof. The party requesting a 

deduction for his or her obligation to support subsequent children bears 

the burden of providing evidence of the obligation, including the income 

of the other parent of the child.

11. Child Support: Appeal and Error. A party may raise two separate 

issues on appeal when a trial court allows a deduction for the obligor’s 

support of subsequent children: (1) whether the court abused its discretion by allowing a deduction and (2) whether the court’s method of 

calculation was an abuse of discretion.

12. Records: Appeal and Error. An appellate brief generally may not 

expand the evidentiary record and should limit itself to arguments supported by the record.

13. Child Support: Appeal and Error. Whether a child support order 

should be retroactive is entrusted to the discretion of the trial court, and 

an appellate court will affirm its decision absent an abuse of discretion.

14. Child Support. In determining whether to order retroactive support, a 

court must consider the parties’ status, character, situation, and attendant 

circumstances. As part of that consideration, the court must consider 

whether the obligated party has the ability to pay the lump-sum amount 

of a retroactive award.

15. Modification of Decree: Child Support: Time. Absent equities to the 

contrary, modification of a child support order should be applied retroactively to the first day of the month following the filing date of the 

application for modification.

16. Child Support: Child Custody. In the determination of child support, 

the children and the custodial parent should not be penalized by delay in 

the legal process, nor should the noncustodial parent gratuitously benefit 

from such delay.

17. Evidence: Words and Phrases. Relevant evidence means evidence 

having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable 

than it would be without the evidence.

18. Trial: Evidence: Appeal and Error. Upon a de novo review in an 

appellate court, incompetent, irrelevant, and immaterial evidence offered 

in the original trial, which was admitted over proper objections by the 

adverse party, will be disregarded.
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SELLERS v. SELLERS

Cite as 23 Neb. App. 219

Appeal from the District Court for Lincoln County: Richard

A. Birch, Judge. Affirmed.

Monelle M. Nichols, of Nichols Law, for appellant.

Stephanie Sellers, pro se.

Claudine K. Thorne, Deputy Lincoln County Attorney, for 

intervenor-appellee.

Moore, Chief Judge, and Pirtle and Bishop, Judges.

Moore, Chief Judge.

I. INTRODUCTION

Jason Sellers appeals from the order of the district court for 

Lincoln County, which modified his child support obligation 

to Stephanie Sellers, also known as Stephanie Rodriguez, for 

the support of the parties’ minor children. Because we find no 

abuse of discretion in the court’s modification of Jason’s child 

support, we affirm.

II. BACKGROUND

Jason and Stephanie were married in February 2001 and are 

the parents of three minor children. In March 2010, the district court dissolved Jason and Stephanie’s marriage, awarded 

Stephanie custody of the parties’ children, and ordered Jason 

to pay child support of $96 per month. Jason was incarcerated 

at the time the decree was entered.

In March 2013, Stephanie requested a review of Jason’s 

child support, pursuant to Neb. Rev. Stat. § 43-512.12 (Cum. 

Supp. 2014), which provides for a review by the Nebraska 

Department of Health and Human Services (Department) “in 

cases in which a party has applied for services under Title 

IV-D of the federal Social Security Act . . . to determine 

whether to refer such orders to the county attorney or authorized attorney for filing of an application for modification.” 

Jason failed to provide adequate financial information to the 
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Department, creating a rebuttable presumption that there had 

been a material change in his financial circumstances such that 

his child support obligation should be increased. See Neb. Rev. 

Stat. § 43-512.14 (Reissue 2008).

On December 11, 2013, following a review by the 

Department’s “Review and Modification Unit,” the State of 

Nebraska filed a complaint for modification of child support, requesting an increase in Jason’s monthly child support 

obligation based on a change in circumstances to an amount 

consistent with the Nebraska Child Support Guidelines. 

Jason was personally served with the complaint on January 

21, 2014.

After three continuances, two of which were at Jason’s 

request, a modification hearing was held before the district 

court on June 17, 2014.

At the time of the modification hearing, Jason lived with his 

current wife, their 1-year-old son, and his 5-year-old stepson. 

Jason has been involved in his stepson’s life since his birth 

and is the only father this child has ever known. Jason’s wife 

is a stay-at-home mother.

At the time of the decree in March 2010, Jason was incarcerated for assault. The district court overruled Jason’s relevance objection to the reason for his incarceration. Jason was 

released from prison in June 2010. Jason is now employed at a 

company where he earns $16.12 per hour and works 40 hours 

per week. He contributes to a retirement account through his 

employment at a rate of 4 percent. Jason has health insurance 

available to him through his employment, which insurance he 

provides for himself and his children. To provide this health 

insurance for the three minor children in this case, Jason pays 

an additional $135 per month above what it costs him to provide health insurance for himself.

Jason has been diagnosed with diverticulitis, and he testified about his costs for medication and surgeries resulting 

from the condition. Jason underwent three surgeries in the 

year prior to the hearing. According to Jason, his medical 
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Cite as 23 Neb. App. 219

providers have told him that the issues that led to his second 

and third surgeries could happen again and that it was “[j]ust 

a matter of time.” Jason testified that over the last year, his 

medical expenses have been $30,000 or more, which expenses 

he believed included the cost that was covered by health 

insurance. Jason offered exhibit 1, which he stated contained 

his medical bills for the previous 11⁄2 years. According to a 

typewritten summary page included in the exhibit, Jason’s 

out-of-pocket medical costs from January through June 2014 

were $13,734.29. The State objected to exhibit 1 because 

it included several bills for individuals other than Jason. 

The district court received exhibit 1 into evidence, stating 

that it would not take any irrelevant portions of the exhibit 

into account in reaching its decision. Jason testified that he 

did not know the limits, deductible, or maximum out-ofpocket expenses under his health insurance policy, as he did 

not pay attention to any such documentation received from 

his employer.

At the time of the modification hearing, Jason was current 

on his child support payments. He did not feel he would be 

able to pay child support of $712 per month as reflected in 

the child support calculation submitted by the State, and he 

testified that his ongoing medical bills would make it difficult 

for him to pay any amount of retroactive child support. Jason 

testified that he could possibly afford child support of $176 as 

reflected in one of his child support calculations.

Stephanie has been a respite provider for the past 5 years, 

but at the time of trial did not have current employment in that 

capacity because the individual she had been caring for had 

been placed in a nursing home. Stephanie earned $11,712 in 

2013 and $13,899 in 2012. Stephanie testified that she does 

not have an illness or disability that prevents her from working 

full time. She receives public assistance in the form of food 

stamps, and the parties’ children are covered under Medicaid. 

She has also received some assistance from her parents. She 
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has a boyfriend who is involved in the children’s lives and 

“helps out.”

Stephanie testified about her understanding of the health 

insurance Jason was providing for the children. According 

to Stephanie, the insurance became effective April 1, 2014. 

Based on documentation she received from the insurance 

company and discussion with Jason, Stephanie testified that 

the deductible was $4,500 for a family and $2,250 for a person. Stephanie understood the annual out-of-pocket maximum 

under the insurance plan was $7,000 for a family and $3,500 

per person.

On June 24, 2014, the district court entered an order modifying Jason’s child support obligation. The court found that 

since entry of the divorce decree in March 2010, there had 

been a material change in circumstances as a result of the 

increase in Jason’s income. The court found that the parties 

were in agreement with respect to their income and earning 

capacities, and it established Stephanie’s earning capacity 

for child support purposes at $1,257 per month and Jason’s 

income at $2,794 per month. The court found that Jason 

was entitled to a deduction for his retirement contribution, 

for the cost of health insurance, and for the support of the 

one child of his current marriage. The court set the deduction for the child of Jason’s current marriage at $234. The 

court did not allow a deduction for Jason’s support of his 

stepchild. The court noted Jason’s serious medical issues, but 

it observed that his actual income from 2013 was in excess 

of the amount attributed to him on the parties’ child support 

calculations. The court found that any determination that 

Jason’s past medical problems would cause a future reduction 

in his income would be speculative. In determining that Jason 

failed to produce sufficient evidence to rebut the presumption that the child support guidelines should be applied, the 

court noted that Jason testified he did not know the amount 

of his deductible, that a number of the medical bills Jason 

submitted as evidence were for other individuals, that some 
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of the bills were outside the dates within which they were 

alleged to have been incurred, and that there was no way to 

determine what Jason’s final liability may have been on such 

medical bills. The court ordered Jason to pay, commencing 

on February 1, 2014, child support of $712 per month for 

three children, $597 per month for two children, and $397 per 

month for one child. The court also ordered Jason to continue 

to maintain health and medical insurance on the minor children through his employer if available to him at a reasonable 

cost and to pay 63 percent of any uninsured health or medical 

expenses for the minor children in excess of $480 per child 

per year.

III. ASSIGNMENTS OF ERROR

Jason asserts, restated, that the district court erred in (1) 

calculating child support with respect to the amount used as 

a deduction for regular support for other children, (2) finding insufficient evidence to rebut the strict application of the 

guidelines and/or failing to allow a deviation for his medical 

expenses, (3) failing to recognize and apply the correct basic 

subsistence limitation in calculating child support, (4) entering a child support order in contradiction of public policy 

and legislative intent that would require Jason to seek public 

assistance, (5) ordering the payment of retroactive support, (6) 

allowing evidence of the reason for Jason’s previous incarceration, (7) ordering Jason to pay for 63 percent of the unreimbursed health care costs, and (8) denying Jason’s application 

to proceed in forma pauperis.

IV. STANDARD OF REVIEW

[1,2] An appellate court reviews proceedings for modification of child support de novo on the record and will affirm 

the judgment of the trial court absent an abuse of discretion. 

Schwarz v. Schwarz, 289 Neb. 960, 857 N.W.2d 802 (2015). A 

judicial abuse of discretion exists when reasons or rulings of 

a trial judge are clearly untenable, unfairly depriving a litigant 
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of a substantial right and denying just results in matters submitted for disposition. Id.

[3,4] Interpretation of the Nebraska Child Support Guidelines 

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

appellate court resolves questions of law independently of the 

lower court’s conclusion. Id.

[5,6] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules; judicial discretion is involved only 

when the rules make discretion a factor in determining admissibility. Griffith v. Drew’s LLC, 290 Neb. 508, 860 N.W.2d 

749 (2015). The exercise of judicial discretion is implicit in 

determining the relevance of evidence, and a trial court’s decision regarding relevance will not be reversed absent an abuse 

of discretion. Id.

V. ANALYSIS

1. Child Support Calculation

[7] 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 (2014). The modification proceedings in this 

case were initiated after Stephanie’s request for a review by the 

Department, and Jason’s failure to provide adequate financial 

information created a rebuttable presumption that his income 

had changed from the time of the decree. See §§ 43-512.12 

and 43-512.14.

The district court found a material change in circumstances 

and modified Jason’s child support obligation, increasing it 

from $96 to $712 per month for three children. In doing so, 

the court established Stephanie’s earning capacity for child 

support purposes at $1,257 per month and Jason’s income 

at $2,794 per month. It found that Jason was entitled to 

deductions for his retirement contribution, the cost of health 
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insurance, and $234 in support for the child of his current 

marriage. The court did not allow a deduction for Jason’s stepchild or a deviation in light of his medical expenses. Although 

Jason asserts that the district court erred in calculating his 

child support obligation, he does not dispute that his income 

has increased since entry of the divorce decree, and he does 

not assign error to the income amounts used by the court in 

its calculation. He specifically assigns error to the amount 

used by the court as a deduction for regular support for other 

children, the court’s finding insufficient evidence to rebut the 

strict application of the guidelines and/or failure to allow a 

deviation for his medical expenses, and the court’s failure to 

recognize and apply the correct basic subsistence limitation in 

calculating child support. He also asserts that the court erred 

by entering a child support order that would require him to 

seek public assistance. We address each of these arguments 

separately below.

(a) Regular Support for 

Other Children

The district court allowed a deduction of $234 per month for 

Jason’s subsequently born child. The Nebraska Child Support 

Guidelines allow for a deduction for biological or adopted 

children for whom the obligor provides regular support. Neb. 

Ct. R. § 4-205(E). Jason argues that his stepchild should 

have also been taken into account in this deduction. Although 

Jason’s support of this child is to be commended, there is no 

provision in the guidelines that would allow a deduction for a 

child other than a biological or adopted child.

[8-11] Jason also takes issue with the manner in which the 

trial court calculated the deduction for his subsequent child. 

The trial court has discretion to choose whether and how 

to calculate a deduction for subsequent children. Schwarz v. 

Schwarz, 289 Neb. 960, 857 N.W.2d 802 (2015). No precise 

mathematical formula exists for calculating child support 

when subsequent children are involved, but the court must 
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perform the calculation in a manner that does not benefit one 

family at the expense of the other. Id. The party requesting 

a deduction for his or her obligation to support subsequent 

children bears the burden of providing evidence of the obligation, including the income of the other parent of the child. Id.

A party may raise two separate issues on appeal when a trial 

court allows a deduction for the obligor’s support of subsequent children: (1) whether the court abused its discretion by 

allowing a deduction and (2) whether the court’s method of 

calculation was an abuse of discretion. Id.

In this case, the district court considered Jason’s income 

alone and what his obligation would be for his four biological children and divided that total obligation by four to arrive 

at an amount per child. The deduction of $234 per month for 

the subsequently born child was used in the State’s child support calculation. The State argues that this formula treats all 

of Jason’s children fairly and does not provide a benefit to 

either his previous children or his subsequently born child. 

We agree.

The calculation adopted by the district court treats all 

of Jason’s biological children nearly identically. The court 

awarded child support of $712 per month for three children, 

based upon the child support guidelines, which represents 

25.48 percent of Jason’s gross income of $2,794, or 8.49 

percent per child. The deduction of $234 for the child of 

his current marriage represents 8.38 percent of Jason’s gross 

income. The district court did not abuse its discretion in 

calculating the deduction allowed for Jason’s subsequently 

born child.

(b) Deviation for 

Medical Expenses

Jason asserts that the district court erred in finding insufficient evidence to rebut the strict application of the guidelines 

and/or failed to allow a deviation for his medical expenses. 

Neb. Ct. R. § 4-203 (rev. 2011) provides in part:
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The child support guidelines shall be applied as a 

rebuttable presumption. All orders for child support 

obligations shall be established in accordance with the 

provisions of the guidelines unless the court finds that 

one or both parties have produced sufficient evidence 

to rebut the presumption that the guidelines should 

be applied.

Section 4-203(A) allows for a deviation “[w]hen there are 

extraordinary medical costs of either parent or child.” Jason 

argues that diverticulitis is a costly and serious medical condition which warranted relief from the strict application of 

the guidelines.

At the modification hearing, Jason testified about the three 

surgeries he underwent in the year prior to the modification 

hearing due to his diverticulitis diagnosis and testified that 

the issues that led to his second and third surgeries could 

recur in time. Jason did not present any medical testimony 

about the nature of his condition, what future problems are 

likely to occur, or the day-to-day ongoing medical expenses 

associated with it, extraordinary or otherwise. He testified 

that he had incurred medical expenses in the previous year 

totaling over $30,000 or more. He acknowledged, however, 

that this amount included what was covered by his health 

insurance. According to the summary page of exhibit 1, Jason 

incurred uncovered medical expenses totaling $13,734.29 in 

the first 6 months of 2014. We note, as did the district court, 

that exhibit 1 includes bills for individuals other than Jason 

and outside of the 6-month period purportedly covered by 

the summary page. Jason was unsure about the limits of his 

health insurance policy, including the amount of his deductible and maximum out-of-pocket expenses. He testified that 

the health insurance he carried for himself was the same as 

what he provided for the children in this case. Stephanie testified, based on conversations with Jason and information she 

received from the insurance company, about the health insurance policy limits, including a family deductible of $4,500, 
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individual deductible of $2,250, annual family out-of-pocket 

maximum of $7,000, and annual individual out-of-pocket 

maximum of $3,500. The court also received into evidence 

documentation from the health insurance company of the 

policy limits.

The district court noted that Jason has had serious medical issues that have affected his health, but it observed that 

his actual income from 2013 exceeded the amount attributed 

to him in the parties’ proposed child support calculations. 

The court concluded that there was no way to determine 

Jason’s final liability on the medical bills included in exhibit 1. 

Accordingly, the court concluded that Jason failed to present 

sufficient evidence to rebut the presumption that the child support guidelines should be applied. We agree. There is conflicting evidence in the record about Jason’s medical expenses and 

nothing beyond speculation to show what his future medical 

expenses might be. Because Jason did not present sufficient 

evidence to support a deviation for extraordinary medical 

expenses, the court did not abuse its discretion in declining to 

allow such a deviation.

(c) Basic Subsistence Limitation

Jason asserts that the district court erred in failing to recognize and apply the correct basic subsistence limitation in 

calculating child support. Neb. Ct. R. § 4-218 (rev. 2015) currently provides:

A parent’s support, child care, and health care obligation shall not reduce his or her net income below the 

minimum of $981 [$973 at the time of the modification hearing in this case] net monthly for one person, or 

the poverty guidelines updated annually in the Federal 

Register by the U.S. Department of Health and Human 

Services under authority of 42 U.S.C. § 9902(2), except 

minimum support may be ordered as defined in § 4-209.

Jason argues that this section expresses two different 

basic subsistence limitations. Specifically, he argues that the 
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limitation of $973 in place at the time of trial is for one person 

while the poverty guidelines updated annually in the Federal 

Register based on household size are applicable here. The 

State argues that the district court properly applied the limitation of $973 in effect at the time of the modification hearing, 

citing to Henke v. Guerrero, 13 Neb. App. 337, 692 N.W.2d 

762 (2005).

This court recently addressed the question of application of 

§ 4-218 of the child support guidelines and the proper basic 

subsistence limitation to apply when an obligor’s household 

consists of more than one person. See Lasu v. Issak, ante p. 83, 

___ N.W.2d ___ (2015). In that case, we utilized the poverty 

guidelines for the obligor’s entire household as found in the 

Federal Register as opposed to the figure for one person as 

a starting point in determining the obligor’s child support. In 

doing so, we distinguished Henke. We acknowledged that in 

Henke, although the father-obligor had another family to support, this court did not consider the poverty guidelines for his 

family of five when reviewing the father’s support obligation, 

and instead appeared to utilize the basic subsistence limitation 

for one person in determining support for the child at issue in 

the paternity action. However, as we discussed in Lasu, the 

only assigned error on cross-appeal by the father in Henke was 

application of the poverty guidelines with respect to the retroactive support and the issue of whether to apply the poverty 

guideline for one person or for the total household in determining the child support award was not raised.

Following our decision in Lasu, we agree with Jason that 

it is appropriate to consider the poverty guidelines as updated 

in the Federal Register that were in place at the time of this 

modification proceeding, pertinent portions of which were 

received as exhibit 4. Utilizing the child support calculation worksheet adopted by the district court, Jason’s monthly 

net income is $1,829, after the $234 deduction allowed for 

Jason’s subsequently born child. After then subtracting the 

child support obligation of $712 as determined by the district 
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court, Jason has remaining net monthly income of $1,117. 

Using the poverty guideline figure for a household of four 

as set forth in exhibit 4, Jason contends that the guidelines reflect a monthly limitation of $1,987.50, which greatly 

exceeds his actual remaining net monthly income of $1,117. 

Thus, Jason asserts that the child support obligation imposed 

by the district court violates § 4-218.

We first note that utilizing the net monthly income for 

Jason after giving him credit for his subsequent child and 

then in turn considering this child in the household for purposes of the basic subsistence limitation essentially gives 

duplicate consideration for the subsequent child. Thus, we 

think it appropriate at the outset of our analysis on this issue 

to add back the $234 deduction allowed for Jason’s subsequently born child in the child support calculation, which 

results in a total of $1,351 remaining net income for Jason’s 

current household after the child support order of $712 

is subtracted.

In further applying the poverty guidelines as updated annually in the Federal Register, we are also faced with the question of how to determine the household income and size. The 

applicable annual update published in the Federal Register and 

received into evidence as exhibit 4 in this case states:

Note that this notice does not provide definitions of 

such terms as “income” or “family,” because there is 

considerable variation in defining these terms among the 

different programs that use the guidelines. These variations are traceable to the different laws and regulations 

that govern the various programs. This means that questions such as “Is income counted before or after taxes?”, 

“Should a particular type of income be counted?”, and 

“Should a particular person be counted as a member 

of the family/household?” are actually questions about 

how a specific program applies the poverty guidelines. 

All such questions about how a specific program applies 

the guidelines should be directed to the entity that 
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administers or funds the program, since that entity has 

the responsibility for defining such terms as “income” or 

“family,” to the extent that these terms are not already 

defined for the program in legislation or regulations.

Thus, we determine that for purposes of setting child 

support, the questions of how to define income and how 

to count a family or household under the poverty guidelines as updated annually in the Federal Register should be 

determined in a manner consistent with the Nebraska Child 

Support Guidelines.

Jason’s argument regarding § 4-218 focuses only on his 

income, as his current wife is not working outside the home. 

We note that in Lasu v. Issak, ante p. 83, ___ N.W.2d ___ 

(2015), both the father and his wife were working, and 

thus, we used their combined incomes in applying the poverty guidelines contained in the Federal Register. However, 

in considering application of the poverty guidelines as a 

mechanism to limit Jason’s child support obligation for his 

three prior children in this case, we also consider whether it 

is appropriate to impute income to Jason’s current wife. As 

mentioned previously, the poverty guidelines update in the 

Federal Register does not define “income,” but the Nebraska 

Child Support Guidelines recognize that earning capacity may 

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

Neb. Ct. R. § 4-204. In applying the child support guidelines, 

courts in Nebraska often attribute income to a nonworking 

parent in calculating child support. See, e.g., Muller v. Muller, 

3 Neb. App. 159, 524 N.W.2d 78 (1994) (no abuse of discretion found where district court attributed income based on 

earning capacity to mother who decided not to work to care 

for children). On the other hand, in Collins v. Collins, 19 Neb. 

App. 529, 808 N.W.2d 905 (2012), we found that the trial 

court abused its discretion in imputing minimum-wage earning capacity to the nonworking mother where the evidence 

demonstrated that she could not attain minimum-wage earning 

capacity by reasonable efforts.
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In this case, both parties attributed earning capacity income 

to Stephanie as if she were working full time and earning 

minimum wage. Under the circumstances of this case, we 

conclude that it is appropriate, in applying the poverty guidelines, to likewise attribute earning capacity income to Jason’s 

current wife. The only evidence in the record is that she is a 

stay-at-home mother; there is no evidence that she could not 

attain minimum-wage earning capacity by reasonable efforts. 

By also attributing $1,257 gross monthly income to Jason’s 

current wife (the same as for Stephanie) and using the trial 

court’s worksheet, her net monthly income would be $1,061. 

If we add that figure to Jason’s net income of $1,351 (after the 

$712 child support is subtracted), we arrive at total household 

net monthly income of $2,412, which exceeds the basic subsistence limitation of $1,987.50 for a family of four. For the 

sake of completeness, we considered the household size as four 

to include Jason’s stepson, since we imputed income to Jason’s 

current wife.

In conclusion, we determine that while it was appropriate for the district court to consider the poverty guidelines 

as updated in the Federal Register for Jason’s household, the 

district court’s award of child support ultimately did not violate § 4-218.

(d) Public Policy

[12] Jason asserts that the district court erred in entering 

a child support order in contradiction of public policy and 

legislative intent that would require him to seek public assistance. Much of his argument in support of this assignment 

of error focuses on Stephanie’s finances and decisions with 

respect to employment or is composed of colorful historical 

references. Although his brief states that his pay is now being 

garnished to pay child support arrears and that he is trying to 

qualify for state assistance, this information is outside of the 

record presented on appeal. An appellate brief generally may 

not expand the evidentiary record and should limit itself to 
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arguments supported by the record. Galaxy Telecom v. SRS, 

Inc., 13 Neb. App. 178, 689 N.W.2d 866 (2004). To the extent 

that Jason’s arguments relate to his assignments of error 

with respect to retroactive support, the correct basic subsistence limitation, and his requested deviation for his medical 

expenses, we have addressed those arguments elsewhere in 

this opinion. This assignment of error is without merit.

(e) Conclusion Regarding 

Child Support

The district court did not abuse its discretion in determining Jason’s child support obligation for the children at issue in 

this case.

2. Retroactive Modification

Jason asserts that the district court erred in ordering the 

payment of retroactive support. The complaint for modification in this case was filed in December 2013, and a 

modification hearing was initially scheduled for February 

18, 2014. The hearing, however, was continued three times 

before finally occurring on June 17. The first continuance 

was at the State’s request to allow for the required 30 days 

between the time Jason was personally served with the complaint on January 21 and the hearing. Two additional continuances were granted at Jason’s request, the first because Jason 

was undergoing a medical procedure and the second because 

Jason’s counsel needed time to determine whether there was a 

conflict with her representation of Jason. The court made the 

modification of Jason’s child support obligation retroactive to 

February 1, 2014.

[13-16] Whether a child support order should be retroactive 

is entrusted to the discretion of the trial court, and an appellate court will affirm its decision absent an abuse of discretion. Freeman v. Groskopf, 286 Neb. 713, 838 N.W.2d 300 

(2013). In determining whether to order retroactive support, 

a court must consider the parties’ status, character, situation, 
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SELLERS v. SELLERS

Cite as 23 Neb. App. 219

and attendant circumstances. McDonald v. McDonald, 21 Neb. 

App. 535, 840 N.W.2d 573 (2013). As part of that consideration, the court must consider whether the obligated party 

has the ability to pay the lump-sum amount of a retroactive 

award. Id. Absent equities to the contrary, modification of a 

child support order should be applied retroactively to the first 

day of the month following the filing date of the application 

for modification. Id. In the determination of child support, the 

children and the custodial parent should not be penalized by 

delay in the legal process, nor should the noncustodial parent 

gratuitously benefit from such delay. Id.

Jason argues that an award of retroactive support will not 

allow him to meet his child support obligation to the children 

in this case and support his new family. Jason argues further 

that the district court should have also taken his extensive 

medical expenses into consideration. He agrees, however, that 

February 1, 2014, was the correct date for any retroactive 

award, given that he was not served with notice of the complaint until January 21.

As discussed above, there was conflicting evidence about 

Jason’s uncovered medical expenses and no evidence to show 

the extent of any ongoing future medical expenses. The court 

did take Jason’s medical expenses into consideration in making the award retroactive to February 2014 rather than January. 

Under the circumstances of this case, we find no abuse of discretion in the court’s award of retroactive support.

3. Evidence of Previous

Incarceration

[17,18] Jason asserts that the district court erred in allowing evidence of the reason for his previous incarceration. 

He argues that he was unfairly prejudiced by the admission 

of this evidence. Relevant evidence means evidence having 

any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it would be without the evidence. 
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Griffith v. Drew’s LLC, 290 Neb. 508, 860 N.W.2d 749 

(2015). Neb. Rev. Stat. § 27-402 (Reissue 2008) provides in 

part that “[e]vidence which is not relevant is not admissible.” 

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice . . . .” Neb. Rev. Stat. § 27-403 (Reissue 2008). The 

fact of Jason’s incarceration at the time of the decree was 

relevant to show that there had been a change in his financial 

circumstances warranting a modification of his child support 

obligation. While the reason for his incarceration was not 

relevant to that determination, we see no evidence that the 

district court placed undue emphasis on or even considered 

that fact in making its determination with respect to child 

support. Further, upon a de novo review in an appellate court, 

incompetent, irrelevant, and immaterial evidence offered in 

the original trial, which was admitted over proper objections 

by the adverse party, will be disregarded. Coffey v. Coffey, 11 

Neb. App. 788, 661 N.W.2d 327 (2003). We have disregarded 

the reason for Jason’s incarceration in our de novo review. 

This assignment of error is without merit.

4. Unreimbursed Health

Care Costs

Jason asserts that the district court erred in ordering him 

to pay for 63 percent of the unreimbursed health care costs. 

He does not separately argue this assignment of error, only 

mentioning it as error in connection with his arguments about 

the correct basic subsistence limitation and award of retroactive support which we have already addressed above. Jason’s 

assertions about unreimbursed health care costs amount to an 

argument that he cannot afford to pay the award of 63 percent.

Neb. Ct. R. § 4-215(B) (rev. 2011) states in relevant part: 

“All nonreimbursed reasonable and necessary children’s health 

care costs in excess of $480 per child per year shall be 

allocated to the obligor parent as determined by the court, 

but shall not exceed the proportion of the obligor’s parental 
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SELLERS v. SELLERS

Cite as 23 Neb. App. 219

contribution (worksheet 1, line 6).” Under the district court’s 

calculations in this case, Jason’s proportion of the parental 

contribution is 63 percent. We have already found no abuse 

of discretion in the court’s child support calculation. We also 

note the evidence shows that the children’s medical expenses 

are largely covered by Medicaid. Further, there is nothing 

in the record to show that the children have any unusual or 

extensive medical expenses. Jason has not shown what impact, 

if any, the award of 63 percent of the nonreimbursed medical 

expenses will actually have on his finances. This assignment 

of error is without merit.

5. Application to Proceed

In Forma Pauperis

Jason asserts that the district court erred in denying his 

application to proceed in forma pauperis in prosecuting his 

appeal from the June 24, 2014, order. Jason filed his notice of 

appeal on July 18, indicating that he was “delay[ing]” deposit 

of the docket fee and costs pending a ruling on his in forma 

pauperis application. The application to proceed in forma pauperis and poverty affidavit was filed on July 22 and was denied 

by the district court on that same date. The clerk’s certificate 

in our transcript shows that the docket fee was paid on July 18, 

and the cash bond was paid on July 22. After the district court 

denied Jason’s request to proceed in forma pauperis on July 

22, he had 30 days to appeal the ruling or proceed by paying 

the docket fee. See, Neb. Rev. Stat. § 25-2301.02(1) (Reissue 

2008); Glass v. Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004); 

Martin v. McGinn, 265 Neb. 403, 657 N.W.2d 217 (2003). 

Because Jason chose to pay the docket fee, he cannot now be 

heard to complain of this issue.

VI. CONCLUSION

Because we find no abuse of discretion in the district court’s 

modification of Jason’s child support, we affirm.

Affirmed.