Opinion
No. A-10-869.
08-30-2011
STATE OF NEBRASKA ON BEHALF OF CORY A. PHILBY AND KAYLA D. PHILBY, APPELLEE, v. TIMOTHY D. PHILBY, APPELLANT.
Timothy D. Philby, pro se. Patricia E. Dodson, Child Support Enforcement for Harlan County, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Harlan County: TERRI S. HARDER, Judge. Affirmed.
Timothy D. Philby, pro se.
Patricia E. Dodson, Child Support Enforcement for Harlan County, for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Timothy D. Philby (Timothy) appeals from the district court's denial of his complaint to modify child support in which he alleged a material change of circumstances due to his incarceration. Because Timothy was incarcerated at the time of the initial child support order and the court imposed only the minimum support under the Nebraska Child Support Guidelines, we conclude that Timothy failed to meet his burden of proving a material change of circumstances and we affirm. Pursuant to Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.
BACKGROUND
On June 10, 2010, Timothy filed a complaint to modify child support in the district court for Harlan County. Timothy alleged that a paternity and child support order was entered on April 22, 2005, which requires Timothy to pay child support for his two minor children in the amount of $50. Timothy alleged that a material change of circumstances had occurred since the entry of this order in that he has been incarcerated since March 2005, which has reduced his income and earning potential by more than 10 percent. Timothy alleged that his projected release date from incarceration is February 2020 and that the change in his financial circumstances has lasted at least 3 months and will last longer than 6 months. Timothy further cited Neb. Rev. Stat. § 43-512.15(1)(b) (Cum. Supp. 2010) as justification for a modification of support, alleging that his change in financial circumstances is not due to a voluntary reduction in monthly income. Timothy also alleged that the child support order has reduced his income below the poverty guidelines and has created, and continues to create, a "burdensome indebtedness in the accumulation of past due child support and interest charges" due to his "incarceration and lack of financial resources." Timothy asked for a modification of the child support order by either reducing his obligation or suspending it until his release from incarceration.
Timothy's complaint was heard on July 30, 2010, with Timothy appearing by telephone and testifying. The State offered various exhibits which were received in evidence, including the Department of Health and Human Services payment history report; the Department of Correctional Services institutional account statements for Timothy from January 2008 through June 2010; a letter dated July 26, 2010, from Timothy to the child support enforcement attorney; the mother's 2009 W-2 statement and 2010 paystubs; the amended information charging Timothy with six counts of sexual assault of a child; and the sentencing order in said case entered August 30, 2005. The district court also took judicial notice of the initial decree; however, such has not been included in our record on appeal. Timothy testified that the judgment for child support was entered in April 2005, with support payments beginning on May 1, 2005. The Department of Health and Human Services report shows that Timothy's child support obligation is $50 per month, commencing May 1, 2005, and that as of July 20, 2010, Timothy had paid $1,799.17, but was in arrears in the amount of $1,325.94 together with $143.93 in interest, for a total delinquency of $1,519.87.
Timothy testified that he has been incarcerated since March 2005. The sentencing hearing in the criminal action was held on August 22, 2005, as a result of which Timothy was sentenced to 3 to 5 years' imprisonment on each count to be served consecutively. Timothy testified that his final release or "jam" date is February 2020, and his parole eligibility date is February 25, 2014. Timothy testified that he has a "porter" job at the correctional facility from which he earns income of $2.25 per day. He works 20 to 22 days a month. Timothy's pay records show that he has been earning approximately $45 to $50 per month from this job in the last few years. Timothy testified that he has other expenses for telephone time, writing utensils, envelopes, toiletries, and health and hygiene items. In addition, 5 percent of his pay is taken out for his "release savings." The Department of Correctional Services records show that there have been additional deposits into Timothy's accounts throughout his incarceration from sources other than his prison pay. Timothy testified that if the accrual of the child support and interest continues at the present amount, it will be "so high before I got out that I would probably never be able to get it paid off, sort of short of a miracle happening."
The children's mother also testified. In 2009, her total income was $6,491. At the time of trial, she was earning $9.65 per hour, working between 15 and 20 hours a week. The children are insured under Medicaid. The children's mother testified that she needs the child support to support her children.
The district court entered its order on August 6, 2010. The court indicated that its record shows that a hearing was held on August 22, 2005, at which time the court ordered Timothy to pay $50 per month for the support of the two minor children. The court noted that on the same day as this hearing, Timothy was sentenced to 3 to 5 years on the six Class IIIA felonies, to be served consecutively. The court stated the language of the decree reflects that the court was aware Timothy was going to be in the penitentiary and that the court was obviously aware of Timothy's financial circumstances when it set the $50 per month amount of support. The court concluded, therefore, that there has been no change in Timothy's financial circumstances since the date of the decree. The court then turned to the question of whether the recent amendment to § 43-512.15 provides a basis for modification. After recognizing that the statute allows an inmate to modify child support based on reduced earning capacity due to incarceration, the court nevertheless concluded that the law and equities of this case do not require a modification. In reaching this conclusion, the court specifically noted that at the time the decree was entered, the court knew that Timothy was going to be incarcerated and, accordingly, set his child support at the minimum level under Neb. Ct. R. § 4-209 of the Nebraska Child Support Guidelines. Accordingly, the court denied and dismissed Timothy's complaint.
Timothy has timely appealed from this order.
ASSIGNMENT OF ERROR
Timothy assigns error to the district court's denial of his complaint for modification of child support.
STANDARD OF REVIEW
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. Rouse v. Rouse, 18 Neb. App. 128, 775 N.W.2d 457 (2009).
ANALYSIS
Timothy argues that the district court erred in failing to find that a material change in circumstances had occurred since the entry of the decree. Timothy claims that the change in circumstances is his incarceration, the resulting reduction in income, and his inability to pay the support.
To determine whether there has been a material and substantial change in circumstances warranting modification of a divorce decree, a trial court should compare the financial circumstances of the parties at the time of the divorce decree, or last modification of the decree, with their circumstances at the time the modification at issue was sought. Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009).
Since Timothy has only alleged a change in his circumstances, and not that of the children's mother, we limit our analysis to Timothy's circumstances. At the time of the entry of the decree, Timothy was in jail as a result of the sexual assault charges. There is nothing in the record to suggest that Timothy was earning any income at this time. Timothy was sentenced on those charges on the same day that the child support decree was signed. Timothy's support was set at the minimum level of $50 suggested under the Nebraska Child Support Guidelines. See § 4-209. While we do not have the decree or child support calculation worksheet in our appellate record, it is a logical conclusion based on the evidence in our record, and as noted by the district court, that the support was set at the minimum level because of Timothy's incarceration and lack of income. Therefore, Timothy has not experienced a change since the entry of the decree, as he is still incarcerated and does not have regular employment income. In reality, Timothy's situation has improved, albeit slightly, in that he is earning prison pay from his porter position.
Timothy also argues that "the present statutes" support an adjustment in his child support. Timothy is undoubtedly referring to § 43-512.15(1)(b) (Cum. Supp. 2010), which statute he alleged in his complaint as further support for a modification. This section, contained within the statutes that provide a vehicle for the State to seek a modification of an existing support order in Title IV-D cases, was initially amended in 2007 for the purpose of allowing modification of child support to reflect the reduced income that is the result of the incarceration of the obligor. See § 43-512.15 (Reissue 2008). Section 43-512.15 (Cum. Supp. 2010) currently provides, in relevant part:
(1) The 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 professional judgment that:
. . . .
(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 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, (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, or (iii) the incarceration is a result of a conviction for a crime in which the child who is the subject of the child support was victimized[.]
In Hopkins v. Stauffer, 18 Neb. App. 116, 775 N.W.2d 462 (2009), this court determined that an incarcerated inmate is 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) (Reissue 2008) are met. We concluded that the change to § 43-512.15 in 2007 making incarceration an involuntary reduction in income under certain conditions rather than a voluntary reduction constitutes a material change of circumstances. See, also, Rouse v. Rouse, 18 Neb. App. 128, 775 N.W.2d 457 (2009) (denial of modification by inmate reversed and remanded for further proceedings where there was no documented record of willful failure or neglect to provide proper support).
In the case at hand, the district court recognized that § 43-512.15 (Cum. Supp. 2010) allows an inmate to modify child support based on reduced earning capacity due to incarceration, but nevertheless concluded that the law and equities of the case do not require a modification. We agree. The purpose of the amendment to the statute 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. See Hopkins v. Stauffer, supra. In the present case, the record does not show that Timothy has experienced a reduction in income since the entry of the decree as a result of his incarceration. Rather, his child support was determined at a time that he was in jail and was set in anticipation of his incarceration for his convictions for sexual assault. The child support was originally set at the minimum amount suggested under § 4-209 of the Nebraska Child Support Guidelines. In contrast, the obligor's original child support obligation in Hopkins v. Stauffer, supra, was set at $648 per month, and in Rouse v. Rouse, supra, at $216 per month.
We conclude that because Timothy has not shown a reduction in income as a result of his incarceration and because he is only obligated to pay the minimum amount of child support under the guidelines, he has not shown a material change in circumstances to justify a reduction in his child support. Accordingly, we need not determine whether any of the exceptions to modification listed in § 43-512.15(1)(b) apply in this case.
CONCLUSION
Because Timothy has failed to show a material change in circumstances as a result of his incarceration, we affirm the district court's denial and dismissal of Timothy's complaint to modify child support.
AFFIRMED.