Hopkins v. Stauffer

CONCLUSION
We find the trial court erred in failing to issue the writ of
habeas corpus and in dismissing the application for such in
reliance upon matters not in evidence. We reverse the dismissal
and remand the cause for further proceedings, with directions
to the district court to issue the writ of habeas corpus and to
hold an evidentiary hearing thereupon in accordance with Neb.
Rev. Stat. §§ 29-2802 and 29-2805 (Reissue 2008).
R eveRsed and Remanded foR
fuRtheR pRoceedings.
shannon i. hopkins , foRmeRly known as
shannon i. stauffeR, appellee , v.
shane alan stauffeR, appellant.
775 N.W.2d 462
Filed November 10, 2009. 	No. A-09-266.
1. Modification of Decree: Appeal and Error. Modification of a dissolution decree
is a matter entrusted to the discretion of the trial court, whose order is reviewed
de novo on the record, and which will be affirmed absent an abuse of discretion
by the trial court.
2. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
3. Statutes: Presumptions: Legislature: Intent: Appeal and Error. In constru-
ing a statute, appellate courts are guided by the presumption that the Legislature
intended a sensible rather than absurd result in enacting the statute.
4. Statutes: Legislature: Intent. An appellate court will place a sensible construc-
tion upon a statute to effectuate the object of the legislation, as opposed to a
literal meaning that would have the effect of defeating the legislative intent.
5. Statutes: Intent. In construing a statute, a court must look to the statutory objec-
tive to be accomplished, the evils and mischiefs sought to be remedied, and the
purpose to be served, and then must place on the statute a reasonable or liberal
construction that best achieves the statute’s purpose, rather than a construction
that defeats the statutory purpose.
6. Modification of Decree: Child Support. Neb. Rev. Stat. §§ 43-512.12 through
43-512.18 (Reissue 2008) provide a vehicle for the State to seek a modification
of an existing support order to attain support from a parent.
7. Attorneys at Law. Neb. Rev. Stat. § 7-105(2) (Reissue 2007) imposes upon
an attorney the duty to counsel or maintain no other actions, proceedings, or
defenses than those which appear to him or her legal and just, except the defense
of a person charged with a public offense.
116 	18 NebRASkA AppeLLAte RepORtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

8. Statutes: Legislature: Intent: Appeal and Error. Having settled the meaning
of the statute, an appellate court must give effect to the purpose and intent of
the Legislature.
9. Modification of Decree: Child Support. the change of law making incarcera-
tion an involuntary reduction in income under certain conditions rather than a
voluntary reduction is a material change of circumstances for purposes of the
Nebraska Child Support Guidelines.
10. ____: ____. Under Neb. Rev. Stat. § 43-512.15 (Reissue 2008), as recently
amended, a child support obligor’s incarceration is now considered an involuntary
reduction in income under certain circumstances.
Appeal from the District Court for Dawson County: James
e. 	doyle iv, 	Judge. 	Reversed 	and 	remanded 	for 	further
proceedings.
Shane Alan Stauffer, pro se.
No appearance for appellee.
sieveRs, caRlson, and cassel, Judges.
cassel, Judge.
INtRODUCtION
Since at least 1985, Nebraska appellate courts have held
that incarceration does not constitute a material change in
circumstances justifying a reduction in or termination of child
support obligations. See Ohler v. Ohler, 220 Neb. 272, 369
N.W.2d 615 (1985). this appeal addresses the continued vital-
ity of that rule in light of recent amendments by the Legislature
to Neb. Rev. Stat. § 43-512.15 (Reissue 2008). because we
conclude that the Legislature intended its amendments to
allow incarcerated individuals to obtain a reduction in child
support under certain conditions, we reverse, and remand for
further proceedings.
bACkGROUND
In March 1995, Shannon I. Hopkins, formerly known as
Shannon I. Stauffer, filed a petition to dissolve her marriage to
Shane Alan Stauffer. the court granted Hopkins temporary cus-
tody of the parties’ three minor children and ordered Stauffer to
pay temporary child support of $648 per month. In December,
while the dissolution action was pending, Stauffer was charged
HOpkINS v. StAUFFeR 	117
Cite as 18 Neb. App. 116

with the attempted first degree murder of Hopkins. A decree
filed in February 1996 dissolved the parties’ marriage and
ordered Stauffer to pay monthly child support of $648. At that
time, Stauffer was in jail awaiting trial on the criminal charge.
Stauffer was subsequently convicted of attempted first degree
murder and was sentenced to 20 to 40 years’ imprisonment. His
mandatory release date is in 2015.
In 1997, Stauffer filed an application to modify his child
support obligation, alleging that he lacked the financial ability
to meet his obligation because he earned $56.11 a month. the
district court dismissed Stauffer’s petition for lack of evidence,
and we affirmed. See Stauffer v. Stauffer, 8 Neb. App. xiii (No.
A-97-647, Feb. 9, 1999).
In 2001, Stauffer filed another petition to modify his child
support obligation. the district court determined that the peti-
tion was barred by the doctrine of res judicata, and we reversed,
and remanded for further proceedings. See Stauffer v. Stauffer,
No. A-02-1033, 2004 WL 1316013 (Neb. App. June 15, 2004)
(not designated for permanent publication). Upon remand, the
district court held a hearing and then denied Stauffer’s petition.
this court affirmed, relying on Ohler v. Ohler, supra, and State
on behalf of Longnecker v. Longnecker, 11 Neb. App. 773, 660
N.W.2d 544 (2003). Stauffer v. Stauffer, No. A-04-1432, 2005
WL 2495420 (Neb. App. Oct. 11, 2005) (not designated for
permanent publication).
On September 16, 2008, Stauffer filed the instant complaint
to modify child support. He stated that he was bringing the
action pursuant to Neb. Rev. Stat. § 42-364(9) (Reissue 2004)
and that he was entitled to modification under § 43-512.15
because his reduction in income should be deemed involuntary
due to his incarceration.
During the hearing on Stauffer’s complaint, Stauffer testi-
fied that he was not incarcerated for a crime related to Neb.
Rev. Stat. § 28-706 (Reissue 2008), that he had been and will
be incarcerated for more than 1 year, and that he had no past
of willfully failing to provide support. When the court asked
Hopkins whether Stauffer had been behind in child support,
she answered, “Well, yes he has. It’s been garnished, but the
118 	18 NebRASkA AppeLLAte RepORtS

amount is pretty much usually there.” Hopkins testified that
she has received $644 a month in child support for the past 8
years. During the 5 years leading up to 2000, she received no
child support; but since 2000, she has received nearly the entire
amount of the $648 ordered.
the district court denied Stauffer’s complaint. the court
recognized that Stauffer’s circumstances had not changed since
this court’s decision in 2005. the district court found Stauffer’s
contention that the amendment to § 43-512.15 superseded Ohler
v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985), and State v.
Porter, 259 Neb. 366, 610 N.W.2d 23 (2000), to be without
merit. the court stated that the statutory change did “nothing
more than require the authorized attorney, when exercising
her or his discretion, to exclude incarceration for more than
one year from the circumstances which constitute a voluntary
reduction of income” and that it “does not constitute a material
change in circumstances and . . . does not constitute a sufficient
basis, by itself, to support a reduction in child support.”
Stauffer timely appeals. No brief has been filed in response
to Stauffer’s brief. pursuant to authority granted to this court
under Neb. Ct. R. App. p. § 2-111(b)(1) (rev. 2008), this case
was ordered submitted without oral argument.
ASSIGNMeNtS OF eRROR
Stauffer alleges that the district court abused its discretion
in determining (1) that a material change of circumstances had
not occurred and (2) that new statutory law did not supersede
old case law.
StANDARD OF ReVIeW
[1] Modification of a dissolution decree is a matter entrusted
to the discretion of the trial court, whose order is reviewed de
novo on the record, and which will be affirmed absent an abuse
of discretion by the trial court. Metcalf v. Metcalf, 278 Neb.
258, 769 N.W.2d 386 (2009).
[2] Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
Metropolitan Comm. College Area v. City of Omaha, 277 Neb.
782, 765 N.W.2d 440 (2009).
HOpkINS v. StAUFFeR 	119
Cite as 18 Neb. App. 116

ANALYSIS
Interpretation of § 43-512.15.
this appeal centers on the effect of recent amendments
to § 43-512.15 on an incarcerated parent’s ability to obtain
a reduction in his or her child support obligation. In 2007,
the Legislature added the following underscored language to
§ 43-512.15(1)(b):
the variation from the guidelines is due to a voluntary
reduction in net monthly income. For purposes of this
section, a person who has been incarcerated for a period
of one year or more in a county or city jail or a federal
or state correctional facility shall be considered to have
an involuntary reduction of income unless (i) the incar-
ceration is a result of a conviction for criminal nonsupport
pursuant to section 28-706 or a conviction for a violation
of any federal law or law of another state substantially
similar to section 28-706 or (ii) the incarcerated indi-
vidual has a documented record of willfully failing or
neglecting to provide proper support which he or she
knew or reasonably should have known he or she was
legally obligated to provide when he or she had sufficient
resources to provide such support[.]
2007 Neb. Laws, L.b. 554, § 42.
[3-5] In construing a statute, appellate courts are guided
by the presumption that the Legislature intended a sensible
rather than absurd result in enacting the statute. Foster v.
BryanLGH Med. Ctr. East, 272 Neb. 918, 725 N.W.2d 839
(2007). An appellate court will place a sensible construction
upon a statute to effectuate the object of the legislation, as
opposed to a literal meaning that would have the effect of
defeating the legislative intent. Id. In construing a statute, a
court must look to the statutory objective to be accomplished,
the evils and mischiefs sought to be remedied, and the pur-
pose to be served, and then must place on the statute a rea-
sonable or liberal construction that best achieves the statute’s
purpose, rather than a construction that defeats the statutory
purpose. Id.
[6] the first issue presented by this appeal is whether
§ 43-512.15 has any application to a complaint to modify
120 	18 NebRASkA AppeLLAte RepORtS

support brought by an incarcerated person. the plain lan-
guage of the text in § 43-512.15(1)(b) states, “For purposes
of this section . . . .” the section—which is titled, “title IV-D
child support order; modification; when; procedures”—pro-
vides that “[t]he county attorney or authorized attorney, upon
referral from the Department of Health and Human Services,
shall file a complaint to modify a child support order unless
the attorney determines in the exercise of independent pro-
fessional judgment that” one of a number of enumerated
circumstances, including a voluntary reduction in income,
is present. § 43-512.15(1). the statutes found in Neb. Rev.
Stat. §§ 43-512.12 through 43-512.18 (Reissue 2008) provide
a vehicle for the State to seek a modification of an existing
support order to attain support from a parent. Sneckenberg v.
Sneckenberg, 9 Neb. App. 609, 616 N.W.2d 68 (2000). existing
child support orders are subject to review under those statutes
where a party has applied for or is receiving services under
title IV-D of the Social Security Act. Sneckenberg, supra.
Here, the complaint was brought by Stauffer, and there is no
indication that title IV-D is implicated. We share the dissent’s
discomfort in applying § 43-512.15 to a modification action
brought by an inmate.
However, a determination that incarceration is still con-
sidered a voluntary reduction in income when a complaint
to modify is brought by a prisoner would lead to absurd
results. the district court concluded that the amendment to
§ 43-512.15 did not supersede Ohler v. Ohler, 220 Neb.
272, 369 N.W.2d 615 (1985), because the amendment merely
required an authorized attorney to exclude incarceration for
more than 1 year from the circumstances which constitute
a voluntary reduction of income. If we were to accept the
district court’s reasoning, however, the language added by
the Legislature would be hollow and we would be left with
a result which defeats the purpose of the legislation: even
if an authorized attorney filed a complaint on a prisoner’s
behalf, the prisoner would be entitled to no relief under Ohler.
the dissent does not address the tension between the statute
and the absurd result that would follow if the amendment is
deemed not to supersede Ohler.
HOpkINS v. StAUFFeR 	121
Cite as 18 Neb. App. 116

[7] Moreover, prior to the 2008 amendment discussed below,
this interpretation would have required the authorized attorney
to recommend commencement of a legal proceeding that the
attorney would know was doomed to failure, in violation of
the statutory duties of an attorney and counselor at law. Neb.
Rev. Stat. § 7-105(2) (Reissue 2007) imposes upon an attorney
the duty “to counsel or maintain no other actions, proceed-
ings or defenses than those which appear to him [or her] legal
and just, except the defense of a person charged with a public
offense.” the district court’s interpretation would mandate
that the authorized attorney advocate that the incarcerated
person’s reduction in income was involuntary even though the
attorney knew that a court would hold that the reduction was
voluntary. the Legislature could not have intended to provide
a hollow remedy and to require authorized attorneys to violate
a duty of their office. Again, the dissent ignores the futility of
requiring an authorized attorney to bring an action asserting
incarceration as an involuntary reduction in income, if a court
can merely point to existing case law, such as Ohler, which
indicates that incarceration is a voluntary reduction. We agree
with the dissent that there is no evidence that the Department
of Health and Human Services has been involved in the case
or that it is a title IV-D case. but the dissent does not explain
why incarceration should be considered an involuntary reduc-
tion if those circumstances are met, but a voluntary reduction
if the action is commenced by the inmate and it is not a title
IV-D case.
the legislative history behind the recent amendments to
§ 43-512.15 supports our conclusion that the Legislature’s
intent in amending § 43-512.15 was to, in effect, partially over-
rule decisions of the Nebraska appellate courts which declared
that incarceration was considered a voluntary reduction in
income for purposes of child support obligations.
the purpose of the 2007 amendment, which originated in
2007 Neb. Laws, L.b. 682, was to “allow for a modification
of child support that would reflect the reduced income that
is the result of the incarceration of the obligor. Currently,
Nebraska courts have found incarceration to be a voluntary
reduction of income and, therefore, child support a financial
122 	18 NebRASkA AppeLLAte RepORtS

obligation ineligible for modification.” Introducer’s Statement
of Intent, L.b. 682, Judiciary Committee, 100th Leg., 1st Sess.
(Mar. 8, 2007). As the senator introducing the bill explained:
the change from voluntary to involuntary would allow
an incarcerated judgment creditor to modify his court-
ordered child support obligation in a way that reflects
his or her reduced circumstances that are the direct result
of incarceration. . . . I understand that the Nebraska
Supreme Court guidelines prohibit lowering a child sup-
port order because of the presumption that the reduction
in income was due to circumstances under one’s control.
the position is that the incarcerated person could have
foreseen that the loss of freedom would be the result of
criminal activity. So I understand the rationale for the
court[’]s determination that incarceration is voluntary.
but we think there are many inconsistencies, and that
the justice is probably not being really well served by
this. Chief Justice krivosha, in his dissent in a 1985
case of [Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615
(1985),] set out some of that thinking. . . . I think we
can have an honest discussion here on whether the cur-
rent child support guidelines impose a nonrehabilitative
effect on incarcerated persons when that person faces a
huge child support debt and interest penalties upon his
or her release.
Judiciary Committee Hearing, L.b. 682, 100th Leg., 1st Sess.
70-71 (Mar. 8, 2007).
In 2008, the Legislature added to § 43-512.15: “(2) the
[D]epartment[ of Health and Human Services], a county attor-
ney, or an authorized attorney shall not in any case be respon-
sible for reviewing or filing an application to modify child
support for individuals incarcerated as described in subdi-
vision (1)(b) of this section.” 2008 Neb. Laws, L.b. 1014,
§ 43 (emphasis omitted). the stated reason for the bill, which
originated as 2008 Neb. Laws, L.b. 774, was as follows:
Incarceration is now considered to be an involuntary
reduction in net monthly income for purposes of child
support obligations rather than a voluntary reduction in
income as it was prior to last year’s law change.
HOpkINS v. StAUFFeR 	123
Cite as 18 Neb. App. 116

Lb 774 provides that the Department of Health and
Human Services, its authorized attorney or the county
attorney will not in any case be responsible for reviewing
or filing an application to modify child support for incar-
cerated individuals.
Introducer’s Statement of Intent, L.b. 774, Judiciary Committee,
100th Leg., 2d Sess. (Jan. 23, 2008).
During testimony on L.b. 774, the introducer of the 2007
bill discussed above stated that following adoption of that bill,
[c]ounty attorneys were concerned that the law was not
clear as to their duties to take affirmative action to com-
mence the proceedings to adjust the child support. And
the law itself did not provide that they had that duty,
but they felt that they might have that duty under the
act. Lb774 would make it clear that neither the attorney
for the Department of Health and Human Services nor
the county attorney has an affirmative duty to file an
application to reduce child support. We think that that
will clarify the situation that the person[s] requesting the
modification of child support would have to take some
affirmative action to have that done, probably through
their own personal attorney.
Judiciary Committee Hearing, L.b. 774, 100th Leg., 2d Sess.
43 (Jan. 23, 2008).
In representing the Nebraska County Attorneys Association
in support of the bill, the Seward County Attorney stated:
Lb 774 puts the responsibility on the party seeking the
modification. the incarcerated individual[s get] the bene-
fit and ha[ve] the best access to the information surround-
ing their incarceration, specifically the time that they are
incarcerated, when they are going to be paroled, and if
they’re going to be on any sort of work release. Also, Lb
774 allows for [the Department of] Health and Human
Services, the authorized attorney, and the county attorneys
to focus their resources on the children whose parents
have the ability to support them, otherwise resources and
court time [are] actually spent modifying child support
downward, without much benefit to the child.
Id. at 47.
124 	18 NebRASkA AppeLLAte RepORtS

[8] We conclude that the Legislature intended for an incar-
cerated inmate to be able to file his or her own complaint to
modify child support and for the incarceration to be considered
an involuntary reduction of income when the conditions of
§ 43-512.15(1)(b) are met. We cannot ignore the evident intent
of the legislative act merely because the Legislature could
have chosen a better section in which to codify its amendment.
Having settled the meaning of the statute, an appellate court
must give effect to the purpose and intent of the Legislature.
See Southern Neb. Rural P.P. Dist. v. Nebraska Electric, 249
Neb. 913, 546 N.W.2d 315 (1996). We therefore reject the dis-
trict court’s interpretation of the statute.
Material Change in Circumstances.
[9] the district court determined that “the amendment . . .
does not constitute a material change in circumstances.” We
disagree. In Sneckenberg v. Sneckenberg, 9 Neb. App. 609,
616 N.W.2d 68 (2000), we held that an upward revision of
the support required under the child support guidelines was
a material change of circumstances that warranted upward
modification of a former husband’s child support obliga-
tion, independently of changes in his income. Similarly, in
Schmitt v. Schmitt, 239 Neb. 632, 477 N.W.2d 563 (1991),
the Nebraska Supreme Court held that the adoption of child
support guidelines constituted a material change of circum-
stances warranting a change in child support obligations,
notwithstanding that it resulted from a change of law rather
than from actions of the parties. See, also, Babka v. Babka,
234 Neb. 674, 452 N.W.2d 286 (1990) (holding that change
in federal tax law regarding dependency exemptions consti-
tuted material change of circumstances which would justify
modification of support order). We conclude that the change of
law making incarceration an involuntary reduction in income
under certain conditions rather than a voluntary reduction is
a material change of circumstances. even though Stauffer’s
circumstances have not changed from his last action to modify
his support obligation, the change of law constitutes a material
change of circumstances. Accordingly, we reverse, and remand
for further proceedings.
HOpkINS v. StAUFFeR 	125
Cite as 18 Neb. App. 116

CONCLUSION
[10] For over 20 years, Nebraska courts have declined to
allow an incarcerated parent to obtain a reduction in his or
her child support obligation based upon reduced earnings as
a result of being incarcerated. Under § 43-512.15, as recently
amended, a child support obligor’s incarceration is now consid-
ered an involuntary reduction in income under certain circum-
stances. We conclude that the Legislature intended to change
the state of the law and that the change of law constitutes a
material change of circumstances. We reverse, and remand for
further proceedings.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
caRlson, Judge, dissenting.
I respectfully dissent from the conclusion reached by the
majority that the Legislature’s intent in amending § 43-512.15
was to effectively overrule prior holdings in Nebraska case
law that incarceration was considered a voluntary reduction
in income for the purpose of determining child support obli-
gations. the majority concludes that the Legislature clearly
intended that an incarcerated inmate be able to file his or her
own modification action and that the fact of incarceration be
considered an involuntary reduction of income when the provi-
sions of § 43-512.15(1)(b) are met.
In my opinion, the plain language of the statute forecloses
such a result. When asked to interpret 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. to
determine the legislative intent of a statute, a court generally
considers the subject matter of the whole act, as well as the
particular topic of the statute containing the questioned lan-
guage. Harvey v. Nebraska Life & Health Ins. Guar. Assn., 277
Neb. 757, 765 N.W.2d 206 (2009).
Neb. Rev. Stat. § 43-512.10 (Reissue 2008) states that
“[s]ections 43-512 to 43-512.10 and 43-512.12 to 43-512.18
shall be interpreted so as to facilitate the determination of
paternity, child, spousal, and medical support enforcement, and
the conduct of reviews under such sections.” As summarized,
126 	18 NebRASkA AppeLLAte RepORtS

these sections apply to child support cases in which a party
has applied for services under title IV-D of the federal Social
Security Act. Section 43-512.12(1) requires the Department of
Health and Human Services to determine whether such cases
should be referred to a county attorney or authorized attorney
for filing a modification action when the present obligation
varies from the Supreme Court child support guidelines by
more than the percentage amount established by court rule
and the variation is due to financial circumstances which have
lasted at least 3 months and can reasonably be expected to last
for another 6 months.
I 	think 	the 	district 	court 	properly 	concluded 	that
§ 43-512.15(1) is inapplicable to Stauffer’s case. the sub-
section applies only to a county attorney in certain cases
referred from the Department of Health and Human Services,
and the entire statutory scheme refers only to title IV-D cases.
No evidence was presented at the hearing on Stauffer’s com-
plaint to modify that the Department of Health and Human
Services has been involved in this case or that the case is a
title IV-D case.
In making determinations of legislative intent, I believe that
the majority has read the statutory language independently of
its context and has improperly extended the clear statutory
language in these statutes to all child support modification
actions, regardless of whether these actions come within the
clear parameters of the statute. the language of these statutes
is clear and unambiguous; it is not necessary to “interpret” the
Legislature’s meaning.
I would affirm the decision of the district court to deny
Stauffer’s complaint to modify his child support obligation.
HOpkINS v. StAUFFeR 	127
Cite as 18 Neb. App. 116