Rouse v. Rouse

SuSan K ay RouSe , appellee , v.
Roy JoSeph RouSe , JR., appellant.
775 N.W.2d 457
Filed November 10, 2009. 	No. A-09-281.
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. Modification of Decree: Child Support. Under Neb. Rev. Stat. § 43-512.15
(Reissue 2008), a person continuously jailed while awaiting trial faces the same
reduction in income as a person continuously incarcerated after sentencing.
4. ____: ____. Neb. Rev. Stat. § 43-512.15 (Reissue 2008) allows an incarcerated
individual, under certain circumstances, to file a complaint seeking modification
of his or her child support obligation upon the basis that his or her incarceration
is an involuntary reduction of income.
Appeal 	from 	the 	District 	Court 	for 	Hamilton 	County:
M ichael J. owenS, Judge. Reversed and remanded for further
proceedings.
Roy Joseph Rouse, Jr., pro se.
No appearance for appellee.
SieveRS, caRlSon, and caSSel, Judges.
caSSel, Judge.
INTRODUCTION
After amendments to Neb. Rev. Stat. § 43-512.15 (Reissue
2008) became effective, Roy Joseph Rouse, Jr., filed a com-
plaint to modify his child support obligation due to his reduced
earnings as a result of his incarceration. The district court
denied the complaint, in part because Rouse had a child sup-
port arrearage at the time he began serving his prison sen-
tence. For the reasons set forth in Hopkins v. Stauffer, ante p.
116, 775 N.W.2d 462 (2009), we conclude that Rouse could
personally file a complaint seeking modification of his child
support obligation upon the basis that his incarceration was an
involuntary reduction of income. Because the record does not
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www.nebraska.gov/apps-courts-epub/
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show that Rouse willfully failed to pay child support when he
had sufficient resources to do so, we reverse, and remand for
further proceedings.
BACkGROUND
On August 6, 2008, Rouse filed a complaint to modify his
child support obligation under § 43-512.15. The district court
conducted a hearing, and evidence was adduced that under a
February 16, 1994, support order, Rouse’s current child sup-
port obligation is $216 per month. Rouse testified that he earns
$1.21 a day and that as of December 2008, approximately $12
a month has been taken out of his earnings for child support.
He does not own any real estate or any property other than
personal items.
The court received an exhibit showing Rouse’s child sup-
port payment history since June 2001. Rouse testified that he
was current on his child support at the time of his incarcera-
tion and that he was “a month ahead.” Rouse testified that he
was “up-to-date” on child support in November 2001 and that
he was put in the county jail in December. Rouse was unclear
on the exact date of his incarceration. He “had two sentences
on top of each other” and had been continuously incarcerated.
Rouse testified that he was sentenced on approximately March
23, but the record is not clear regarding the year. He also
testified that he has been in prison since March 2002, that his
tentative release date is 2040, and that he was approximately
$20,000 in arrears on his child support obligation at the time
of trial.
On February 10, 2009, the district court denied Rouse’s
complaint. The court stated, “The evidence reveals that [Rouse]
began serving his present sentence on or about March 26,
2003. On that date, [Rouse] had a child support arrearage of
$3,180.68.” The court rejected Rouse’s claim that his incar-
ceration constituted an involuntary reduction in income for two
reasons: (1) The statute provides for a modification complaint
to be brought by the prosecutor, and (2) the statute provides
that modification is not appropriate if the inmate has a docu-
mented record of willfully failing or neglecting to provide
proper support.
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Cite as 18 Neb. App. 128

Rouse timely appeals. No brief has been filed in response to
the brief submitted by Rouse. 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
Rouse alleges that the district court erred (1) in determining
that he had not demonstrated a material change in circum-
stances necessitating a reduction in his child support obliga-
tion, (2) by violating Rouse’s equal protection rights when it
denied his request to modify his child support obligation while
incarcerated, and (3) by relying on the doctrine of unclean
hands and ruling that modification was precluded by Rouse’s
being in arrears on his support obligation.
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).
ANAlYSIS
The district court observed that § 43-512.15 provides for
a modification complaint to be brought by the prosecutor but
stated that it was “reluctant to find that modification should
initially be at the sole discretion of the county or authorized
attorney.” The court also cited to Ohler v. Ohler, 220 Neb. 272,
369 N.W.2d 615 (1985), and State on behalf of Longnecker v.
Longnecker, 11 Neb. App. 773, 660 N.W.2d 544 (2003), and
stated that “[t]he evidence does not indicate that the statutory
changes are in conflict with the cited precedent.”
In Hopkins v. Stauffer, ante p. 116, 775 N.W.2d 462 (2009),
we 	determined 	that 	the 	legislature’s 	intent 	in 	amending
§ 43-512.15 was to, in effect, partially overrule decisions of
the Nebraska appellate courts which declared that incarceration
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was considered a voluntary reduction in income for purposes
of child support obligations. We concluded that the legislature
clearly intended for an incarcerated inmate to be able to file his
or her own complaint to modify child support and for the incar-
ceration to be considered an involuntary reduction of income
when the conditions of § 43-512.15(1)(b) are met. We held that
the change of law making incarceration an involuntary reduc-
tion in income under certain conditions rather than a voluntary
reduction constituted a material change of circumstances. In
the case before us, we reverse the order of the district court
to the extent that it found otherwise. As set forth more fully
in Hopkins, we disagree with the dissent’s position because it
would lead to an absurd result, which the legislature surely
could not have intended.
The district court in the instant case noted that under
§ 43-512.15, modification is not appropriate if the inmate
has a documented record of willfully failing or neglecting to
provide proper support. Section 43-512.15(1)(b) provides in
pertinent part:
For purposes of this section, a person who has been incar-
cerated 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 incarceration 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 individual 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[.]
[3] Rouse testified that at the time of his incarceration, not
only was he current on his child support obligation, but he
was a month ahead. The district court, however, found that
Rouse had a substantial arrearage at the time his incarceration
commenced and that “[n]o evidence was adduced to indicate
that such arrearage was anything but willful or neglectful.” We
find no support in the record before us for the district court’s
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Cite as 18 Neb. App. 128

statement that “[t]he evidence reveals that [Rouse] began
serving his present sentence on or about March 26, 2003.”
Further, nothing in the statute limits the period of incarcera-
tion to that occurring after sentencing. A person continuously
jailed while awaiting trial faces the same reduction in income
as a person continuously incarcerated after sentencing, and the
statute specifically references incarceration in jails in addi-
tion to incarceration in federal or state correctional facilities.
Rouse testified that he was incarcerated in the county jail in
December 2001, and the record shows no arrearage in child
support until the last day of that month. Because there is no
documented record of Rouse’s willfully failing or neglecting
to provide proper support when he had sufficient resources
to provide such support, we reverse, and remand for fur-
ther proceedings.
CONClUSION
[4] As we determined in Hopkins v. Stauffer, ante p. 116, 775
N.W.2d 462 (2009), § 43-512.15 allows an incarcerated indi-
vidual, under certain circumstances, to file a complaint seeking
modification of his or her child support obligation upon the
basis that his or her incarceration is an involuntary reduction
of income. Because Rouse has been incarcerated for 1 year or
more and he does not have a documented record of willfully
failing to pay child support when he had sufficient resources to
do so, 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.
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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,
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 Rouse’s case. The subsection
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 Rouse’s complaint 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
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Cite as 18 Neb. App. 128

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
Rouse’s complaint to modify his child support obligation.
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