Cain v. Cain

with prejudice. Accordingly, the judgment of the trial court
is affirmed.
A ffirmed .
shAron K. cAin , Appellee , v . donAld l. cAin , AppellAnt .
741 N.W.2d 448
Filed November 6, 2007. 	No. A-06-747.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law.
When reviewing questions of law, an appellate court resolves the questions inde-
pendently of the conclusions reached by the trial court.
2. Modification of Decree: Child Support. Neb. Rev. Stat. § 42-371.01 (Reissue
2004) permits the district court, under specified circumstances, to enter a sum-
mary order of termination of child support in the absence of an objection by
the obligee.
3. ____: ____. The filing of a deficient application under Neb. Rev. Stat. § 42-371.01
(Reissue 2004) will not trigger a duty on the part of the obligee to file a corre-
sponding objection.
Appeal from the District Court for Douglas County: J ohn d.
hArtigAn , J r ., Judge. Affirmed.
Larry R. Demerath, of Demerath Law Offices, for appellant.
Michael B. Lustgarten, of Lustgarten & Roberts, P.C., L.L.O.,
for appellee.
cArlson , moore, and cAssel, Judges.
moore, Judge.
INTRODUCTION
Donald L. Cain appeals from the order of the district court
for Douglas County dismissing his application for termination
of child support. For the reasons set forth below, we affirm the
district court’s order. Pursuant to this court’s authority under
Neb. Ct. R. of Prac. 11B(1) (rev. 2006), this case was ordered
submitted without oral argument.
STATeMeNT OF FACTS
Donald and Sharon k. Cain were married in 1973 and
divorced in 1994. Three children were born to their marriage.
CAIN v. CAIN 	117
Cite as 16 Neb. App. 117
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

When the dissolution decree was modified in 2001, Donald was
required to pay child support for one child—Jena, born July 2,
1985—“until the minor child reaches her majority, dies, becomes
emancipated, or until further order of the Court.” On September
4, 2003, Donald filed an application to terminate his child sup-
port obligation, citing Neb. Rev. Stat. § 42-371.01 (Reissue
2004), which statute governs termination of an obligor’s duty
to pay child support. Donald asserted that Jena became eman-
cipated when she moved out of Sharon’s home and into her
own residence on or about August 8, 2003, and gained full-time
employment. Donald provided Sharon’s last known address
and requested that she be notified of his motion in accordance
with § 42-371.01.
The record shows no further action in the case until May
2006, when Sharon filed a motion to dismiss on the bases of
Donald’s failure to state a claim and the insufficiency of service
of process. Following a hearing, the district court granted the
dismissal motion, finding that Donald had not properly invoked
§ 42-371.01 to terminate his child support obligation and that
he had not obtained service on Sharon such that he could, in
the alternative, maintain an action to modify the parties’ decree.
Donald appeals from this order.
ASSIGNMeNT OF eRROR
Donald claims, summarized, that the district court erred
in failing to terminate his child support obligation as of
October 1, 2003.
STANDARD OF ReVIeW
[1] Statutory interpretation presents a question of law. When
reviewing questions of law, an appellate court resolves the
questions independently of the conclusions reached by the
trial court. Wilczewski v. Neth, 273 Neb. 324, 729 N.W.2d
678 (2007).
ANALYSIS
Donald 	claims 	that 	pursuant 	to 	§ 	42-371.01, 	his 	child
support 	obligation 	should 	have 	been 	terminated. 	Section
42-371.01(1) provides:
118 	16 NeBRASkA APPeLLATe RePORTS

An obligor’s duty to pay child support for a child termi-
nates when (a) the child reaches nineteen years of age,
(b) the child marries, (c) the child dies, or (d) the child is
emancipated by a court of competent jurisdiction, unless
the court order for child support specifically extends child
support after such circumstances.
Section 42-371.01(3) further states:
The obligor may provide written application for termina-
tion of a child support order when the child being sup-
ported reaches nineteen years of age, marries, dies, or is
otherwise emancipated. The application shall be filed with
the clerk of the district court where child support was
ordered. A certified copy of the birth certificate, marriage
license, death certificate, or court order of emancipation
shall accompany the application for termination of the
child support. The clerk of the district court shall send
notice of the filing of the child support termination appli-
cation to the last-known address of the obligee. The notice
shall inform the obligee that if he or she does not file a
written objection within thirty days after the date the notice
was mailed, child support may be terminated without fur-
ther notice. The court shall terminate child support if no
written objection has been filed within thirty days after the
date the clerk’s notice to the obligee was mailed, the forms
and procedures have been complied with, and the court
believes that a hearing on the matter is not required.
(emphasis supplied.)
It is undisputed that Donald filed his application with the
clerk of the district court, who sent notice to Sharon’s last
known address, along with the admonition that failure to file a
written objection within 30 days may result in termination of
child support. however, Donald acknowledges that he did not
accompany the application with a court order of emancipation.
he concedes, in fact, that there was no such order in existence.
Instead, he argues that (1) if a court order of emancipation
already existed, there would be no need to follow the procedure
outlined in § 42-371.01, and (2) Sharon waived any objection
she might have had to his application when she failed to file a
written objection with the court within 30 days.
CAIN v. CAIN 	119
Cite as 16 Neb. App. 117

[2] 	We 	find 	Donald’s 	arguments 	unpersuasive. 	Section
42-371.01 permits the district court, under specified circum-
stances, to enter a summary order of termination of child sup-
port in the absence of an objection by the obligee. There is no
ambiguity in the statute’s terms, which permit the child support
obligor to terminate his or her obligation by filing in the district
court an application-–which application “shall” be accompanied
by a self-authenticating document. Thus, in the present case,
Donald was required to accompany his application for termina-
tion of child support with a certified copy of a court order of
emancipation—an order that did not exist. his bare assertions
in his application that Jena was emancipated were insufficient
to invoke the provisions of § 42-371.01.
[3] Donald argues that Sharon nonetheless waived any defi-
ciency in his application because she failed to file a written
objection within 30 days after his notice was mailed. The provi-
sions in § 42-371.01(3) are again quite clear that the court shall
terminate child support if no such objection is filed within 30
days, “the forms and procedures have been complied with, and
the court believes that a hearing on the matter is not required.”
(emphasis supplied.) As described above, Donald failed to
comply with the procedures required by § 42-371.01. It follows
that Donald’s deficient filing failed to trigger an obligation on
Sharon’s part to file an objection.
Finally, Donald contends that the district court erred in find-
ing that an application to modify the decree was the appro-
priate vehicle to terminate his child support obligation. The
court observed that given Donald’s failure to properly invoke
§ 42-371.01, his application to terminate child support should
be treated as an application to modify the decree. The court
merely advised Donald that under the present set of facts, for-
mal process must be initiated, including service of process. The
court did not err in so doing.
CONCLUSION
The district court properly dismissed Donald’s motion to
terminate child support due to his failure to comply with
§ 42-371.01. The district court’s order of dismissal is affirmed.
A ffirmed .
120 	16 NeBRASkA APPeLLATe RePORTS