State on behalf of Martinez v. Martinez-Ibarra

judgment if he chose to do so28 and that his willingness (or
unwillingness) to do so could be seen as relevant to many of
the factors that the Board of Parole is instructed to take into
account when making a determination regarding a committed
offender’s release on parole.29 We also note that although this
opinion addresses the general applicability of § 81-2032, we
make no comment on the extent to which the exempt status
of Hobbs’ retirement funds might be affected by any transfor-
mation in their character, such as through spending or invest-
ment.30 And, as suggested above, nothing in this opinion should
be construed to comment on whether the Legislature, if it chose
to do so, could amend the scope of § 81-2032.
ConCLusion
The district court correctly concluded that § 81-2032 fore-
closed the relief J.M. sought in this proceeding. The court’s
judgment is affirmed.
A ffirmed.
Wright, J., not participating.
28 see In re Interest of Battiato, supra note 11.
29 see neb. Rev. stat. § 83-1,114 (Reissue 2008).
30 see, e.g., Porter, supra note 11; Trotter v. Tennessee, 290 u.s. 354, 54
s. Ct. 138, 78 L. Ed. 358 (1933); In re Smith, 242 B.R. 427 (E.D. Tenn.
1999); E.W., supra note 21; Younger, supra note 21.
sTATE on BEHALf of MARTinEz v. MARTinEz-iBARRA 	547
Cite as 281 neb. 547
StAte of NebrASkA oN behAlf of vANeSSA i. mArtiNez
mAyorgA, AppellANt, v. Wilberth mArtiNez-ibArrA,
defeNdANt ANd third -pArty plAiNtiff, ANd
pAtriciA r. mAyorgA, third -pArty
defeNdANt, AppelleeS.
797 n.W.2d 222
filed May 13, 2011. 	no. s-10-750.
1. Child Support: Child Custody: Appeal and Error. As it does with child sup-
port and child custody determinations, the nebraska supreme Court reviews the
award of cash medical support de novo on the record, with the decision of the
trial court affirmed in the absence of an abuse of discretion.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusions
reached by the trial court.
3. Statutes. statutory interpretation is a question of law.
Appeal from the District Court for Douglas County: gAry b.
rANdAll, Judge. Reversed and remanded.
Jessica J. Rasmussen and Julie fowler, of Child support
Enforcement office, for appellant.
no appearance for appellees.
heAvicAN, c.J., coNNolly, gerrArd, StephAN, mccormAck ,
and miller-lermAN, JJ.
heAvicAN, c.J.
inTRoDuCTion
Wilberth Martinez-ibarra was found to be the biological
father of a minor child born to Patricia R. Mayorga in 2007.
Martinez-ibarra and Mayorga entered into a parenting plan,
and Martinez-ibarra was ordered to pay child support and
cash medical support. The state appeals from the order of
the district court regarding the amount of cash medical sup-
port awarded. We reverse the decision of the district court and
remand the cause for reconsideration of child support and cash
medical support.
fACTuAL BACKGRounD
on January 26, 2009, the state filed a paternity and sup-
port action against Martinez-ibarra. That complaint asked for
a finding that Martinez-ibarra was the biological father of
the minor child, born in 2007, and requested that Martinez-
ibarra be ordered to pay child support and provide medical
support. The state filed the petition because the minor child
was receiving services under title iV-D of the federal social
security Act.
Martinez-ibarra filed an answer and cross-complaint against
Mayorga. in that complaint, Martinez-ibarra requested joint
custody. Mayorga then filed her own cross-complaint against
Martinez-ibarra for paternity and custody.
548 	281 nEBRAsKA REPoRTs

At trial held June 24, 2010, the parties stipulated to a par-
enting plan which granted Mayorga sole physical custody.
Both child support and health insurance were at issue. Because
neither party was employed full time, no health insurance was
available for the minor child. The state asked that Martinez-
ibarra be ordered to pay $472.97 per month in child support,
and an additional $77 per month as a cash medical support
payment. The district court ordered child support in the amount
of $472.97 and, after granting a credit to Martinez-ibarra for
$480, ordered cash medical support of $37 per month. Because
the state provides title iV-D services, it has a right, by either
subrogation or assignment of rights, to certain support pay-
ments awarded to Mayorga.1
The state appeals. neither Martinez-ibarra nor Mayorga
have appeared on appeal.
AssiGnMEnTs of ERRoR
The state assigns that the district court erred in giving
Martinez-ibarra a $480 credit when calculating the amount of
cash medical support to be ordered or, in the alternative, erred
by not reducing the deduction for cash medical support when
calculating the child support order.
sTAnDARD of REViEW
[1] As this court does with child support and child custody
determinations, we review the award of cash medical support
de novo on the record, with the decision of the trial court
affirmed in the absence of an abuse of discretion.2
[2,3] When reviewing questions of law, an appellate court
has an obligation to resolve the questions independently of the
conclusions reached by the trial court.3 statutory interpretation
is a question of law.4
1 see neb. Rev. stat. § 43-512.07 (Cum. supp. 2010).
2 see, e.g., Kamal v. Imroz, 277 neb. 116, 759 n.W.2d 914 (2009);
Gangwish v. Gangwish, 267 neb. 901, 678 n.W.2d 503 (2004).
3 State ex rel. Amanda M. v. Justin T., 279 neb. 273, 777 n.W.2d 565
(2010).
4 Id.
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AnALYsis
Error in Giving Credit.
in its first assignment of error, the state argues that the dis-
trict court erred when it credited Martinez-ibarra $480 when
calculating the amount of cash medical support due.
Cash medical support payments are authorized by neb. Rev.
stat. § 42-369 (Cum. supp. 2010). in particular, § 42-369(2)(a)
states that health insurance, where available, should be pro-
vided by a minor child’s parents. section 42-369(2)(a) further
notes that the availability of health insurance is dependent
upon its accessibility, in that the health insurance must provide
coverage in the area in which the minor child resides, and
notes that it must be available at a reasonable cost. The statute
then provides:
if health care coverage is not available or is inaccessible
and one or more of the parties are receiving Title iV-D
services, then cash medical support shall be ordered.
Cash medical support or the cost of private health insur-
ance is considered reasonable in cost if the cost to the
party responsible for providing medical support does
not exceed three percent of his or her gross income. in
applying the three-percent standard, the cost is the cost
of adding the children to existing health care coverage
or the difference between self-only and family health
care coverage.5
Health care coverage is defined to include private health insur-
ance, but not “public medical assistance programs.”6 And cash
medical support is defined as “an amount ordered to be paid
toward the cost of health insurance provided by a public entity
or by another parent through employment or otherwise or for
other medical costs not covered by insurance.”7
Also relevant are the nebraska Child support Guidelines.
neb. Ct. R. § 4-215 (rev. 2009) provides as follows:
5 § 42-369(2)(a).
6 neb. Rev. stat. § 44-3,144(5) (Reissue 2010). see § 42-369(2)(b)(i).
7 § 42-369(2)(b)(ii).
550 	281 nEBRAsKA REPoRTs

The child support order shall address how the par-
ents will provide for the child(ren)’s health care needs
through health insurance as well as the nonreimbursed
reasonable and necessary child(ren)’s health care costs
that are not included in table 1 that are provided for in
§ 4-215(B).
(A) Health insurance. The increased cost to the parent
for health insurance for the child(ren) of the parent shall
be prorated between the parents. When worksheet 1 is
used, it shall be added to the monthly support from line 7,
then prorated between the parents to arrive at each party’s
share of monthly support on line 10 of worksheet 1.
The parent requesting an adjustment for health insurance
premiums must submit proof of the cost for health insur-
ance coverage of the child(ren). The parent paying the
premium receives a credit against his or her share of the
monthly support.
(B) Health Care. Children’s health care expenses are
specifically included in the guidelines amount of up to
$480 per child per year. Children’s health care needs are
to be met by requiring either parent to provide health
insurance as required by state law. 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 . . . .
(C) Cash Medical support and Health Care Costs for
Title iV-D Cases only. All child support orders in the
Title iV-D program must address how the parties will
provide for the child(ren)’s health care needs through
health care coverage and/or through cash medical support.
Cash medical support or the cost of private health insur-
ance is considered reasonable in cost if the cost to the
party responsible for providing medical support for the
child(ren) does not exceed 3 percent of his or her gross
income. in applying the 3-percent standard, the cost is the
cost of adding the child(ren) to existing health care cover-
age or the difference between self-only and family health
care coverage. Cash medical support payment shall not be
ordered if, at the time that the order is issued or modified,
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the responsible party’s income is, or such expense would
reduce the responsible party’s net income, below the basic
subsistence limitation provided in § 4-218.
in this case, the state introduced a child support worksheet,
requesting child support in the amount of $472.97 per month
and an additional $77 per month for cash medical support. The
district court adopted the worksheet, but noted the decree pro-
vided that Mayorga was responsible for the first $480 of non-
reimbursed medical expenses. The district court reasoned that
because the minor child was receiving public medical assist-
ance, Mayorga would have very few nonreimbursed expenses.
As such, the district court concluded that Martinez-ibarra was
entitled to a $480 credit to the yearly amount of cash medical
support due under § 42-369. The state appeals, arguing that the
credit was erroneous. We agree that the district court erred in
giving Martinez-ibarra the $480 credit.
section 4-215(B) of the child support guidelines provides
for nonreimbursed medical expenses and specifically notes that
“[c]hildren’s health care expenses are specifically included in
the guidelines amount of up to $480 per child per year.” As
such, the guidelines estimate $480 as an ordinary amount of
such nonreimbursed medical expenses, and that figure is then
subsumed within the amount of child support that is ordered.
Any nonreimbursed expenses exceeding $480 are prorated
between the parties.
As applied to this case, and many similar cases, this means
that while Mayorga has been ordered to pay the first $480 in
nonreimbursed medical expenses, in essence this $480 has
already been paid in by both parents. in paying the first $480 in
nonreimbursed medical expenses, the responsible parent, here
Mayorga, is essentially paying out funds previously set aside
for this purpose. Thus, by giving Martinez-ibarra a $480 credit,
the district court has simply undone what was intended to be
accomplished by the child support guidelines. nor is there any
authority in the guidelines or otherwise for the giving of a
credit in this situation.
Moreover, 	these 	nonreimbursed 	medical 	expenses 	are
intended to be separate from health insurance or cash medical
support payments. The two types of medical costs are governed
552 	281 nEBRAsKA REPoRTs

by different subsections of the child support guidelines. section
4-215(B) of the guidelines provides specifically for nonreim-
bursed medical expenses, while § 4-215(A) and (C) set forth
the guidelines with respect to health insurance and cash medi-
cal support.
Also, the plain language of § 4-215(C) of the guidelines, as
well as of § 42-369(2)(a), indicates that cash medical support
is intended as a substitute for health insurance in situations in
which health insurance is unavailable. And health insurance
is the ultimate example of a reimbursed medical expense,
as opposed to those nonreimbursed medical expenses envi-
sioned by § 4-215(B). This is reinforced when considering
the statutory definition of cash medical support: the payment
of “an amount ordered to be paid toward the cost of health
insurance provided by a public entity or by another parent
through employment.”8
We conclude that the district court erred when it gave
Martinez-ibarra a credit when calculating the amount of cash
medical support owed. We reverse the decision of the district
court and remand this cause with instructions to recalculate
the amount of cash medical support and child support owed
by Martinez-ibarra.
Cash Medical Support as Deduction on Worksheet 1.
in addition, we note that the state’s child support calcu-
lation worksheet, which was largely adopted by the district
court, provided Martinez-ibarra with a deduction against his
income for the cash medical support he owes. We also note
that this is not a deduction provided for by the guidelines9 or
the worksheet itself, and we could find no authority for it in
statute. A district court may, of course, deviate from the guide-
lines in certain instances.10 However, the guidelines state that
“[i]n the event of a deviation, the reason for the deviation shall
be contained in the findings portion of the decree or order, or
worksheet 5 should be completed by the court and filed in the
8 Id.
9 see neb. Ct. R. § 4-205.
10 neb. Ct. R. § 4-203.
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court file.”11 But in this case, no such reason was contained in
our record.
Therefore, on remand, we encourage the district court to
also review the deductions on worksheet 1 of the child sup-
port guidelines to determine whether a deviation for Martinez-
ibarra’s cash medical support payment would be appropriate.
ConCLusion
The decision of the district court is reversed, and the cause
remanded for a redetermination of cash medical support and
child support.
reverSed ANd remANded.
Wright, J., not participating.
11 Id.
554 	281 nEBRAsKA REPoRTs