Fetherkile v. Fetherkile , 299 Neb. 76 ( 2018 )


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    03/02/2018 01:12 AM CST
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    FETHERKILE v. FETHERKILE
    Cite as 
    299 Neb. 76
    Jessica R enee Fetherkile, appellee, v.
    Brandon Lee Fetherkile, appellant.
    ___ N.W.2d ___
    Filed February 23, 2018.   No. S-16-1159.
    1.	 Statutes. Statutory interpretation presents a question of law.
    2.	 Judgments: Appeal and Error. When reviewing questions of law, an
    appellate court has an obligation to resolve the questions independently
    of the conclusion reached by the trial court.
    3.	 Divorce: Child Custody: Child Support: Property Division: Alimony:
    Attorney Fees: Appeal and Error. In an action for the dissolution of
    marriage, an appellate court reviews de novo on the record the trial
    court’s determinations of custody, child support or a modification of
    an existing order of support, property division, alimony, and attorney
    fees; these determinations, however, are initially entrusted to the trial
    court’s discretion and will normally be affirmed absent an abuse of
    that discretion.
    4.	 Judges: Words and Phrases. A judicial abuse of discretion exists if the
    reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
    ing a litigant of a substantial right and denying just results in matters
    submitted for disposition.
    5.	 Evidence: Appeal and Error. In a review de novo on the record, the
    court is required to make independent factual determinations based upon
    the record, and the court reaches its own independent conclusions with
    respect to the matters at issue. When evidence is in conflict, the appel-
    late court considers and may give weight to the fact that the trial court
    heard and observed the witnesses and accepted one version of the facts
    rather than another.
    6.	 Paternity: Statutes. Paternity proceedings are purely statutory, and
    such statutes must be strictly construed because they modify the com-
    mon law.
    7.	 Judgments: Jurisdiction: Claim Preclusion. Claim preclusion bars
    relitigation of any right, fact, or matter directly addressed or necessarily
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    included in a former adjudication if (1) the former judgment was ren-
    dered by a court of competent jurisdiction, (2) the former judgment was
    a final judgment, (3) the former judgment was on the merits, and (4) the
    same parties or their privies were involved in both actions.
    8.	 Claim Preclusion. The doctrine of claim preclusion bars relitigation not
    only of those matters actually litigated, but also of those matters which
    might have been litigated in the prior action.
    9.	 ____. The doctrine of claim preclusion rests on the necessity to termi-
    nate litigation and on the belief that a person should not be vexed twice
    for the same cause.
    10.	 Claim Preclusion: Issue Preclusion. Whether the doctrine of either
    claim preclusion or issue preclusion applies in any given case is neces-
    sarily fact dependent.
    11.	 Child Support: Parent and Child: Statutes. Nebraska’s statutes do not
    impose a child support obligation upon any parties except the legally
    determined parents of a child.
    12.	 Child Support: Paternity. Any order imposing an obligation of child
    support is necessarily a legal determination of paternity.
    13.	 Child Support: Paternity: Final Orders. A paternity determination in
    a support order, under 
    Neb. Rev. Stat. §§ 43-1411
     or 43-512.04 (Reissue
    2016), is a final judgment on the issue of paternity.
    14.	 Claim Preclusion: Judgments. For purposes of claim preclusion, a
    judgment on the merits is one which is based on legal rights, as distin-
    guished from mere matters of practice, procedure, jurisdiction, or form.
    15.	 Judgments: Stipulations: Final Orders. A stipulated judgment oper-
    ates on the merits and is as final and binding upon the parties as a decree
    rendered after a hearing on the merits.
    16.	 Divorce: Courts: Taxation. A state court having jurisdiction in a dis-
    solution action has the power to allocate tax dependency exemptions as
    part of the dissolution decree.
    17.	 Divorce: Taxation. A tax dependency exemption is nearly identical in
    nature to an award of child support or alimony.
    18.	 Child Support: Judgments. Childcare costs may be awarded as an
    incident to child support.
    19.	 Statutes: Legislature: Presumptions: Judicial Construction. In deter-
    mining the meaning of a statute, the applicable rule is that when the
    Legislature enacts a law affecting an area which is already the subject
    of other statutes, it is presumed that it did so with full knowledge of the
    preexisting legislation and the decisions of the Supreme Court constru-
    ing and applying that legislation.
    20.	 Statutes: Appeal and Error. Statutory language is to be given its
    plain and ordinary meaning, and an appellate court will not resort to
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    interpretation to ascertain the meaning of statutory words which are
    plain, direct, and unambiguous.
    21.	   Statutes: Legislature: Intent. In reading a statute, a court must deter-
    mine 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.
    22.	   Modification of Decree: Child Support. Under 
    Neb. Rev. Stat. § 42-364
     (Reissue 2016), a court may allow an existing support order
    to remain in effect without modification after considering whether a
    modification of the existing order is warranted, rather than making an
    independent calculation of child support.
    23.	   Due Process. Due process principles protect individuals from arbitrary
    deprivation of life, liberty, or property without due process of law.
    24.	   Due Process: Notice. Due process does not guarantee an individual any
    particular form of state procedure; instead, the requirements of due proc­
    ess are satisfied if a person has reasonable notice and an opportunity to
    be heard appropriate to the nature of the proceeding and the character of
    the rights which might be affected by it.
    25.	   Constitutional Law: Due Process. The determination of whether pro-
    cedures afforded an individual comport with constitutional requirements
    for procedural due process presents a question of law.
    26.	   Child Support. Child support orders are always subject to review
    and modification.
    27.	   Modification of Decree: Child Support: Proof. A party seeking to
    modify a child support order must show a material change in circum-
    stances which (1) occurred subsequent to the entry of the original decree
    or previous modification and (2) was not contemplated when the decree
    was entered.
    28.	   Modification of Decree: Child Support. Among the factors to be
    considered in determining whether a material change of circumstances
    has occurred are changes in the financial position of the parent obli-
    gated to pay support, the needs of the children for whom support
    is paid, good or bad faith motive of the obligated parent in sustain-
    ing a reduction in income, and whether the change is temporary or
    permanent.
    29.	   ____: ____. The paramount concern in child support cases, whether in
    the original proceeding or subsequent modification, remains the best
    interests of the child.
    30.	   Modification of Decree: Child Support: Proof. The party seeking
    the modification has the burden to produce sufficient proof that a
    material change of circumstances has occurred that warrants a modifi-
    cation and that the best interests of the child are served thereby.
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    31.	 Divorce: Property Division. Under 
    Neb. Rev. Stat. § 42-365
     (Reissue
    2016), the equitable division of property is a three-step process. The
    first step is to classify the parties’ property as marital or nonmarital.
    The second step is to value the marital assets and marital liabilities
    of the parties. The third step is to calculate and divide the net marital
    estate between the parties in accordance with the principles contained in
    § 42-365.
    32.	 Property Division. Marital debt includes only those obligations incurred
    during the marriage for the joint benefit of the parties.
    33.	 Property Division: Proof. The burden to show that a debt is nonmarital
    is on the party making that assertion.
    34.	 Divorce: Attorney Fees. In awarding attorney fees in a dissolution
    action, a court should consider the nature of the case, the amount
    involved in the controversy, the services actually performed, the results
    obtained, the length of time required for preparation and presentation
    of the case, the novelty and difficulty of the questions raised, and the
    customary charges of the bar for similar services.
    35.	 Courts: Attorney Fees. Courts have the inherent power to award attor-
    ney fees in certain unusual circumstances amounting to conduct during
    the course of litigation which is vexatious, unfounded, and dilatory,
    such that it amounts to bad faith.
    36.	 Appeal and Error. To be considered by an appellate court, an alleged
    error must be both specifically assigned and specifically argued in the
    brief of the party asserting the error.
    Appeal from the District Court for Pawnee County: Daniel
    E. Bryan, Jr., Judge. Affirmed.
    Angelo M. Ligouri, of Ligouri Law Office, for appellant.
    No appearance for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
    Funke, JJ.
    Funke, J.
    Brandon Lee Fetherkile appeals from a dissolution decree
    entered by the Pawnee County District Court, which dissolved
    his marriage to Jessica Renee Fetherkile. The court ruled that
    Brandon was the legal father of Ariana D. and ordered him to
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    pay child support for Ariana and two other children, pursuant
    to an order for support in a separate case.
    Primarily, Brandon argues that the evidence showed that he
    was not the biological or legal father of Ariana; so, the court
    erred in finding that he was Ariana’s father and making any
    order regarding her. Further, he asserts that the court erred
    in not making an independent determination regarding child
    support and attaching a child support calculation worksheet to
    the decree.
    We reject Brandon’s arguments because the existing order
    of support was res judicata on the issue of Brandon’s paternity
    and Brandon failed to elicit sufficient evidence to warrant a
    modification of the existing order of support. Further, because
    the court did not modify the existing order of support, it was
    not required to attach a worksheet to its decree. We also find
    Brandon’s remaining assignments of error to be without merit.
    Therefore, we affirm.
    I. BACKGROUND
    Brandon and Jessica were married in June 2010 and sepa-
    rated in March 2013. Jessica filed a complaint for dissolution
    in December 2014, and Brandon filed a counterclaim, which
    he labeled a cross-complaint, for dissolution in June 2015.
    Trial was held in November 2016.
    Jessica has three children: a daughter, born in 2013; another
    daughter, born in 2008; and Ariana, born in 2006. In her
    complaint and during her direct testimony, Jessica alleged
    that Brandon was the legal father of all three children. In
    his counterclaim, Brandon disputed paternity over Ariana and
    requested genetic testing to determine whether he was the bio-
    logical father.
    In November 2014, in case No. CI 14-12, a separate pro-
    ceeding in the Pawnee County District Court, the court entered
    an order for support, based upon a stipulation of the parties.
    It found that Brandon had acknowledged paternity of all three
    children, ruled that he was their father, and ordered Brandon
    to pay Jessica child support.
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    At the dissolution trial, Jessica requested the court to
    continue the order of child support from case No. CI 14-12.
    Nonetheless, upon cross-examination, Jessica testified that
    Brandon was not Ariana’s biological father. Jessica also stated
    that despite the fact she had put Brandon’s name on Ariana’s
    birth certificate, he never signed it, and that Brandon had
    been pursuing legal adoption of Ariana before the separa-
    tion. She also acknowledged that Brandon has two other
    children not born of the marriage, including one which was
    born around August 2016. Further, the record does not reflect
    whether the biological testing that Brandon requested was
    ever performed.
    The parties did not contest the division of assets. Jessica
    requested that the parties equally split all debts incurred before
    the separation and only debts related to their children after
    the separation. She testified and entered evidence concerning
    several debts related to medical expenses for the children.
    One exhibit, however, was a collection notice for a debt
    from Jessica’s bank account that Jessica testified was incurred
    before the separation.
    Jessica also requested at least $3,000 from Brandon for
    attorney fees. She stated that she incurred extra expenses in
    the proceedings because of his delays, failures to appear, last
    minute continuances, and failure to timely respond to discovery
    requests, even after her having a motion to compel granted.
    She presented evidence that she incurred $7,420 of attorney
    fees for the proceedings.
    After the close of the evidence, the court ruled from
    the bench. In doing so, it stated that it was “not going to
    change the child support in this case,” because Brandon
    had failed to produce sufficient evidence of his change in
    income to justify a modification. Further, it explained that
    Brandon still had the opportunity to seek a modification of
    the support order by filing for a modification in the prior case.
    Additionally, the court divided all of the debts submitted into
    evidence equally, ordered Brandon to pay $3,000 of Jessica’s
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    attorney fees, and ordered that neither party was required to
    provide insurance for the children.
    At a later date, the court signed a decree of dissolution
    which ordered Brandon to provide child support pursuant to
    the order of support in effect from case No. CI 14-12. Brandon
    filed a timely appeal. We removed the case to our docket on
    our own motion pursuant to our authority to regulate the case­
    loads of the Nebraska Court of Appeals and this court.1
    II. ASSIGNMENTS OF ERROR
    Brandon assigns, reordered and restated, that the court erred
    in (1) not attaching a Nebraska child support worksheet to the
    decree; (2) ordering child support pursuant to a prior order in
    separate proceedings; (3) not allowing Brandon to present evi-
    dence on his cross-claim or respond to Jessica’s presentation
    of evidence; (4) finding that Ariana was a child of the parties;
    (5) determining custody, parenting time, child support, and
    expenses of Ariana, because she is not Brandon’s child; (6)
    ordering child support and income tax dependencies based on
    three children; (7) equally splitting all of the parties’ outstand-
    ing bank debts; and (8) awarding Jessica attorney fees. He also
    asserts, restated, that the court’s ruling was erroneous because
    (9) it was unjust, inequitable, and could not be reached as a
    matter of law and (10) it was contrary to the evidence and the
    law and constituted an abuse of discretion.
    III. STANDARD OF REVIEW
    [1,2] Statutory interpretation presents a question of law.2
    When reviewing questions of law, an appellate court has an
    obligation to resolve the questions independently of the conclu-
    sion reached by the trial court.3
    [3] In an action for the dissolution of marriage, an appel-
    late court reviews de novo on the record the trial court’s
    1
    See 
    Neb. Rev. Stat. § 24-1106
    (3) (Reissue 2016).
    2
    White v. White, 
    296 Neb. 772
    , 
    896 N.W.2d 600
     (2017).
    3
    
    Id.
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    determinations of custody, child support or a modification
    of an existing order of support, property division, alimony,
    and attorney fees; these determinations, however, are initially
    entrusted to the trial court’s discretion and will normally be
    affirmed absent an abuse of that discretion.4
    [4] A judicial abuse of discretion exists if the reasons or
    rulings of a trial judge are clearly untenable, unfairly depriv-
    ing a litigant of a substantial right and denying just results in
    matters submitted for disposition.5
    [5] In a review de novo on the record, the court is required
    to make independent factual determinations based upon the
    record, and the court reaches its own independent conclusions
    with respect to the matters at issue. When evidence is in con-
    flict, the appellate court considers and may give weight to the
    fact that the trial court heard and observed the witnesses and
    accepted one version of the facts rather than another.6
    IV. ANALYSIS
    1. Brandon’s Assignments of Error
    R egarding Paternity and Child
    Support A re Without Merit
    Brandon’s first six assignments of error concern the issues
    of paternity, child support, and other determinations regarding
    Ariana. Brandon contends the court erred in finding Ariana
    to be his child and making various determinations regarding
    Ariana as a child of the parties. He also contends that the
    court violated his due process rights by adopting the order
    of support in case No. CI 14-12, rather than making its own
    independent conclusions, and preventing him from presenting
    evidence to challenge Jessica’s case or present his own case.
    Finally, Brandon contends that the court violated Neb. Ct. R.
    4
    See, Marshall v. Marshall, 
    298 Neb. 1
    , 
    902 N.W.2d 223
     (2017); Incontro
    v. Jacobs, 
    277 Neb. 275
    , 
    761 N.W.2d 551
     (2009).
    5
    
    Id.
    6
    Osantowski v. Osantowski, 
    298 Neb. 339
    , 
    904 N.W.2d 251
     (2017).
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    § 4-203 (rev. 2011) by failing to attach a Nebraska child sup-
    port calculation worksheet to the decree.
    (a) Court Did Not Abuse Its Discretion
    in Finding Ariana to Be Child of
    Marriage or Violate Brandon’s
    Due Process Rights
    Brandon asserts that the evidence shows that he is not
    Ariana’s father and that nothing in the record supports a find-
    ing that he was a legal parent of her, despite Jessica’s false
    accusation in her complaint.
    [6] At common law, the father of a child born out of wedlock
    had no legal obligation to support the child; that common-law
    rule was changed by legislative action.7 Actions to determine
    paternity are governed by 
    Neb. Rev. Stat. §§ 43-1401
     through
    43-1418 (Reissue 2016). Paternity proceedings are purely stat-
    utory, and such statutes must be strictly construed because they
    modify the common law.8
    Despite Brandon’s assertion, however, the order of support
    in case No. CI 14-12 was entered into evidence and contained
    a determination of paternity that, if res judicata on the issue,
    would have precluded the trial court in this case from making
    an independent determination on the issue of paternity.
    We have not previously considered whether an order of sup-
    port under 
    Neb. Rev. Stat. § 43-512.04
     (Reissue 2008) is res
    judicata on the issue of paternity. However, we have repeat-
    edly held that any dissolution decree that orders child support
    is res judicata on the issue of paternity.9
    [7-10] Claim preclusion bars relitigation of any right, fact,
    or matter directly addressed or necessarily included in a
    ­former adjudication if (1) the former judgment was rendered
    by a court of competent jurisdiction, (2) the former judgment
    7
    State on behalf of B.M. v. Brian F., 
    288 Neb. 106
    , 
    846 N.W.2d 257
     (2014),
    citing Cross v. Perreten, 
    257 Neb. 776
    , 
    600 N.W.2d 780
     (1999).
    8
    
    Id.
    9
    Alisha C. v. Jeremy C., 
    283 Neb. 340
    , 
    808 N.W.2d 875
     (2012).
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    was a final judgment, (3) the former judgment was on the mer-
    its, and (4) the same parties or their privies were involved in
    both actions.10 The doctrine bars relitigation not only of those
    matters actually litigated, but also of those matters which
    might have been litigated in the prior action.11 The doctrine
    rests on the necessity to terminate litigation and on the belief
    that a person should not be vexed twice for the same cause.12
    Whether either preclusion doctrine applies in any given case is
    necessarily fact dependent.13
    As a threshold matter, we must consider whether Ariana’s
    paternity was directly addressed or necessarily included in the
    order of support in case No. CI 14-12.
    [11,12] The issue of paternity was directly addressed in case
    No. CI 14-12 because the court’s order found that Brandon
    acknowledged paternity and ruled that he was the legal father
    of Ariana. Further, Nebraska’s statutes do not impose a child
    support obligation upon any parties except the legally deter-
    mined parents of a child.14 “‘A fundamental fact necessary
    to sustain an order of child support is paternity by the man
    judicially obligated to pay such support.’”15 Thus, any order
    imposing an obligation of child support is necessarily a legal
    determination of paternity.16
    Next, we must apply the four-factor test to determine if the
    order of support was res judicata. First, we consider whether
    the judgment in case No. CI 14-12 was rendered by a court of
    competent jurisdiction.
    10
    See In re Interest of Noah B., 
    295 Neb. 764
    , 
    891 N.W.2d 109
     (2017). See,
    also, DeVaux v. DeVaux, 
    245 Neb. 611
    , 
    514 N.W.2d 640
     (1994).
    11
    In re Interest of Noah B., supra note 10.
    12
    Id.
    13
    Id.
    14
    See Stacy M. v. Jason M., 
    290 Neb. 141
    , 
    858 N.W.2d 852
     (2015).
    15
    Cross, 
    supra note 7
    , 
    257 Neb. at 781
    , 
    600 N.W.2d at 784
    , quoting Younkin
    v. Younkin, 
    221 Neb. 134
    , 
    375 N.W.2d 894
     (1985).
    16
    See Stacy M., 
    supra note 14
    .
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    The order of support does not make clear whether the State
    of Nebraska initially filed the action as a paternity suit, under
    § 43-1411, or if it petitioned for child support directly, under
    § 43-512.04.
    Under § 43-1411, a paternity action “may be instituted, in
    the court of the district where the child is domiciled or found
    . . . by . . . the state, either during pregnancy or within eighteen
    years after the child’s birth.” Further, § 43-1412 provides:
    (1) . . . .
    If it is determined in this proceeding that the alleged
    father is actually the father of the child, a judgment shall
    be entered declaring the alleged father to be the father of
    the child.
    ....
    (3) If a judgment is entered under this section declaring
    the alleged father to be the father of the child, the court
    shall retain jurisdiction of the cause and enter such order
    of support . . . which the court in its discretion deems
    appropriate to be paid by the father, as may be proper
    under the procedure and in the manner specified in sec-
    tion 43-512.04.
    Section 43-512.04(1) provides that “[a]n action for child
    support or medical support may be brought separate and apart
    from any action for dissolution of marriage. The complaint
    initiating the action shall be filed with the clerk of the district
    court and may be heard by the county court or the district
    court . . . .”
    As set out in § 43-1412(1), “[t]he alleged father and the
    mother shall be competent to testify.” But the testimony of
    the party that initiated the proceedings “shall not alone be suf-
    ficient to support a verdict or finding that the alleged father is
    actually the father.”17
    The order in case No. CI 14-12 states that the matter was
    submitted upon the oral stipulation of the parties. Further,
    17
    § 43-1412(1).
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    nothing in the record suggests that either party contested the
    court’s subject matter jurisdiction over the issue of paternity
    or the court’s personal jurisdiction over the parties. As a
    result, under either statute, the Pawnee County District Court
    was a court of competent jurisdiction to determine the issue
    of paternity.
    [13] Second, we consider whether the paternity determina-
    tion in case No. CI 14-12 was a final judgment. In DeVaux
    v. DeVaux,18 we held that a paternity determination contained
    in a dissolution decree was a final judgment. We reasoned, in
    part, that parties have a full and fair opportunity to litigate the
    issue of paternity in such proceedings and that “unlike alimony,
    child support, custody, or ground for divorce, paternity is not
    subject to change.”19 We find both of these reasonings to apply
    to paternity determinations under §§ 43-1411 and 43-512.04
    with equal force. Thus, the paternity determination in case No.
    CI 14-12 was a final judgment.
    [14,15] Third, we must determine whether the paternity
    judgment decree was a judgment on the merits. For purposes
    of claim preclusion, a judgment on the merits is one which is
    based on legal rights, as distinguished from mere matters of
    practice, procedure, jurisdiction, or form.20 A consent decree
    or consent judgment operates on the merits and is as final and
    binding upon the parties as a decree rendered after a hearing
    on the merits.21 We see no reason why this principle would
    not extend to stipulated judgments on the merits. Accordingly,
    while case No. CI 14-12 was submitted to the court by stipula-
    tion, it was a determination on the merits of the case, rather
    than a judgment on mere technical grounds.
    18
    DeVaux, 
    supra note 10
    .
    19
    
    Id. at 618
    , 
    514 N.W.2d at 645-46
    , citing Dept. of Human Services v.
    Lowatchie, 
    569 A.2d 197
     (Me. 1990).
    20
    See DeVaux, 
    supra note 10
    .
    21
    Blazek v. City of Omaha, 
    232 Neb. 562
    , 
    441 N.W.2d 205
     (1989). See, also,
    DeVaux, 
    supra note 10
    .
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    Fourth, there is no dispute that both Brandon and Jessica
    were involved in case No. CI 14-12. While the action was
    initiated by the State and Jessica was a third-party defendant,
    the order of support states that both Brandon and Jessica were
    represented by counsel who appeared before the court.
    Accordingly, we find that the determination of paternity over
    Ariana in the order of support in case No. CI 14-12 was res
    judicata on Brandon’s paternity and that therefore, the parties
    were precluded from relitigating the issue here.
    Further, neither party appealed the final judgment in case
    No. CI 14-12 or claims that the judgment was void for want
    of jurisdiction; so, the judgment is not subject to collateral
    attack by relitigation in this case, absent compliance with
    § 43-1412.01 or a motion to vacate or modify the decree
    in light of fraud, mistake, or as set forth in 
    Neb. Rev. Stat. § 25-2001
     (Reissue 2016).22 When a judgment is attacked in
    a way other than by proceeding in the original action to have
    it vacated, reversed, or modified, or by a proceeding in equity
    to prevent its enforcement, the attack is a collateral attack.23
    Even if erroneous, a judgment is not subject to collateral attack
    unless it is void, such as would be the case where a judgment
    is entered without jurisdiction over the person or subject mat-
    ter.24 Therefore, the court did not abuse its discretion in finding
    that Brandon was Ariana’s legal father.
    In addition, there is no concern regarding Brandon’s due
    process on the issues because the court was not able to reliti-
    gate the paternity determination, absent Brandon’s motioning
    the court to do so on specific bases not present in the record.
    Even with the prior determination that Brandon was
    Ariana’s father, we note that in 2008, “the Legislature enacted
    § 43-1412.01, which overrides res judicata principles and
    22
    See Alisha C., supra note 9.
    23
    Bartlett v. Dawes Cty. Bd. of Equal., 
    259 Neb. 954
    , 
    613 N.W.2d 810
    (2000).
    24
    State v. Yelli, 
    247 Neb. 785
    , 
    530 N.W.2d 250
     (1995).
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    allows, in limited circumstances, an adjudicated father to
    disestablish a prior, final paternity determination based on
    genetic evidence that the adjudicated father is not the biologi-
    cal father.”25 We have held that § 43-1412.01 “gives the court
    discretion to determine whether disestablishment of paternity
    is appropriate in light of both the adjudicated father’s inter-
    ests and the best interests of the child.”26
    Section 43-1412.01 provides, in relevant part, the
    following:
    An individual may file a complaint for relief and the
    court may set aside a final judgment, court order, admin-
    istrative order, obligation to pay child support, or any
    other legal determination of paternity if a scientifically
    reliable genetic test . . . establishes the exclusion of the
    individual named as a father in the legal determination.
    The court shall appoint a guardian ad litem to represent
    the interest of the child.
    While Brandon requested genetic testing of Ariana in his
    counterclaim, he did not request the court to disestablish
    the final determination of paternity in case No. CI 14-12.
    Additionally, while he cites to Jessica’s testimony that he
    is not Ariana’s biological father, he failed to enter into evi-
    dence the results of any genetic testing that may have been
    performed in this case. Further, the record does not reflect
    that a guardian ad litem was appointed to represent Ariana
    or that the court made a determination regarding whether
    a disestablishment of paternity was appropriate. Therefore,
    assuming without deciding that the disestablishment of pater-
    nity could have been litigated in this matter, as opposed to in
    case No. CI 14-12, the court did not abuse its discretion in
    not ruling on whether the disestablishment of paternity was
    appropriate under § 43-1412.01. As a result, there is no merit
    25
    Stacy M., 
    supra note 14
    , 290 Neb. at 146, 858 N.W.2d at 857.
    26
    Id. at 146-47, 858 N.W.2d at 857.
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    to Brandon’s assignments of error regarding finding Ariana to
    be a child of the parties.
    (b) Court Properly Considered Support,
    Custody, Parenting Time, Expenses,
    and Income Tax Deductions
    for Ariana
    Brandon asserts that ordering him to provide support for
    Ariana and determining custody, parenting time, expenses, and
    income tax deductions regarding her were erroneous because
    he has no rights or duties regarding her.
    Because Brandon’s argument that the court erred in deter-
    mining that he was Ariana’s legal father was without merit, the
    assignment of error regarding child custody, parenting time,
    child support, income tax deductions, and other expenses is
    without merit. 
    Neb. Rev. Stat. § 42-364
     (Reissue 2016) grants
    the court the authority to determine child custody, parenting
    time, and child support. Additionally, § 43-1402 states that
    “[t]he father of a child whose paternity is established . . . shall
    be liable for its support to the same extent and in the same
    manner as the father of a child born in lawful wedlock is liable
    for its support.”
    [16-18] Further, under Nebraska law, a state court having
    jurisdiction in a dissolution action has the power to allocate
    tax dependency exemptions as part of the dissolution decree.27
    A tax dependency exemption is nearly identical in nature to
    an award of child support or alimony.28 It has also been held
    that childcare costs may be awarded as an incident to child
    support.29 Therefore, these assignments of error are with-
    out merit.
    27
    Kalkowski v. Kalkowski, 
    258 Neb. 1035
    , 
    607 N.W.2d 517
     (2000). See,
    also, Emery v. Moffett, 
    269 Neb. 867
    , 
    697 N.W.2d 249
     (2005).
    28
    Emery, 
    supra note 27
    .
    29
    Cross, 
    supra note 7
    .
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    (c) Court Did Not Abuse Its Discretion
    by Declining to Modify Existing
    Support Order
    In Robbins v. Robbins,30 we held that in a dissolution action
    brought under the provisions of 
    Neb. Rev. Stat. §§ 42-347
     to
    42-379 (Reissue 1984), a court had jurisdiction to make an
    independent evaluation as to child support under § 42-351,
    but that the court must take into account and give effect to an
    earlier child support order entered under § 43-512.04 (Reissue
    1984). An action for child support, separate from a dissolution
    action, is governed by § 43-512.04 (Reissue 2008).31
    At the time we decided Robbins, § 42-364 (Reissue 1984),
    which governed dissolution proceedings, did not require a
    court to determine child support in any circumstances. Since
    Robbins, the Nebraska Legislature has amended § 42-364(1)(b)
    (Reissue 2016) to provide, in relevant part, that “[t]he decree in
    an action involving the custody of a minor child shall include
    the determination of . . . child support.”32
    [19-21] In determining the meaning of a statute, the appli-
    cable rule is that when the Legislature enacts a law affecting
    an area which is already the subject of other statutes, it is
    presumed that it did so with full knowledge of the preexisting
    legislation and the decisions of the Supreme Court constru-
    ing and applying that legislation.33 Statutory language is to be
    given its plain and ordinary meaning, and an appellate court
    will not resort to interpretation to ascertain the meaning of
    statutory words which are plain, direct, and unambiguous.34 In
    reading a statute, a court must determine and give effect to the
    30
    Robbins v. Robbins, 
    219 Neb. 151
    , 
    361 N.W.2d 519
     (1985).
    31
    See § 43-512.04(1). See, also, § 43-1412(3).
    32
    See 2007 Neb. Laws, L.B. 554, § 32.
    33
    Pittman v. Western Engineering Co., 
    283 Neb. 913
    , 
    813 N.W.2d 487
    (2012).
    34
    State v. Beitel, 
    296 Neb. 781
    , 
    895 N.W.2d 710
     (2017).
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    purpose and intent of the Legislature as ascertained from the
    entire language of the statute considered in its plain, ordinary,
    and popular sense.35
    [22] While the plain language of § 42-364 now requires a
    court to include a determination of child support in its dissolu-
    tion decree when the action involves custody of a minor child,
    it does not require the court to make an independent calcula-
    tion of child support. Because the Legislature was presumed
    to have had full knowledge of 
    Neb. Rev. Stat. § 43-512.05
    (Reissue 2016) and our decision in Robbins when it amended
    § 42-364, we must interpret § 42-364 in light of our holding
    in Robbins.36 Therefore, we interpret § 42-364 to authorize a
    court to determine that an existing support order may remain in
    effect after the court has considered the current earning capac-
    ity of each parent and the child support guidelines provided by
    the Supreme Court.
    Here, the order of support in case No. CI 14-12 was already
    in effect when the court ruled on the parties’ dissolution. While
    the court had jurisdiction to modify the order in its decree,
    under § 42-364, the court determined that a modification of
    the existing support order was not appropriate in this case, as
    discussed more fully in the next section. Therefore, Brandon’s
    argument that the court cannot rely on a previous order of sup-
    port is without merit.
    (d) Brandon’s Due Process Rights Were
    Not Violated by Court’s Determination
    That Modification of Existing Order
    of Support Was Not Warranted
    Brandon contends that the court denied him due process
    by preventing him from presenting evidence regarding child
    support and his paternity of Ariana. He asserts that the court’s
    adoption of the support order in case No. CI 14-12, at
    35
    Id.
    36
    See Robbins, 
    supra note 30
    .
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    Jessica’s request, precluded the court from even considering
    the matters.
    [23-25] Due process principles protect individuals from arbi-
    trary deprivation of life, liberty, or property without due proc­
    ess of law.37 Due process does not guarantee an individual any
    particular form of state procedure; instead, the requirements of
    due process are satisfied if a person has reasonable notice and
    an opportunity to be heard appropriate to the nature of the pro-
    ceeding and the character of the rights which might be affected
    by it.38 The determination of whether procedures afforded an
    individual comport with constitutional requirements for proce-
    dural due process presents a question of law.39
    Brandon argues that the evidence of both his change in
    income and his subsequently born child shows that the court
    abused its discretion in not modifying the order.
    [26,27] Child support orders are always subject to review
    and modification.40 A party seeking to modify a child support
    order must show a material change in circumstances which
    (1) occurred subsequent to the entry of the original decree or
    previous modification and (2) was not contemplated when the
    decree was entered.41
    [28,29] Among the factors to be considered in determining
    whether a material change of circumstances has occurred are
    changes in the financial position of the parent obligated to
    pay support, the needs of the children for whom support is
    paid, good or bad faith motive of the obligated parent in sus-
    taining a reduction in income, and whether the change is tem-
    porary or permanent.42 Further, the Nebraska Child Support
    Guidelines state that “[i]f applicable, earning capacity may
    37
    Bryan M. v. Anne B., 
    292 Neb. 725
    , 
    874 N.W.2d 824
     (2016).
    38
    
    Id.
    39
    
    Id.
    40
    Incontro, 
    supra note 4
    .
    41
    State on behalf of B.M., supra note 7.
    42
    Id.
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    be considered in lieu of a parent’s actual, present income and
    may include factors such as work history, education, occu-
    pational skills, and job opportunities.”43 But, the paramount
    concern in child support cases, whether in the original pro-
    ceeding or subsequent modification, remains the best interests
    of the child.44
    [30] Accordingly, it is invariably concluded that a reduc-
    tion in child support is not warranted when an obligor parent’s
    financial position diminishes due to his or her own voluntary
    wastage or dissipation of his or her talents and assets and a
    reduction in child support would seriously impair the needs
    of the children.45 The party seeking the modification has the
    burden to produce sufficient proof that a material change of
    circumstances has occurred that warrants a modification and
    that the best interests of the child are served thereby.46
    We note that no party sought a modification of the support
    order in case No. CI 14-12. As Brandon argues, Jessica asked
    the court to continue the support ordered in the preceding
    case. While Brandon filed a counterclaim, he did not request
    a reduction of the prior support order. However, because
    Brandon presented evidence seeking a reduction and the court
    did consider whether to modify the support order, we will
    review its decision.
    First, we consider Brandon’s argument that he was entitled
    to a reduction in his support obligation based on a child
    that was born to him during the proceedings of the dissolu-
    tion action. Neb. Ct. R. § 4-205(E) (rev. 2016) provides that
    “[s]ubject to [Neb. Ct. R.] § 4-220, credit may be given for
    biological or adopted children for whom the obligor provides
    regular support.” Neb. Ct. R. 4-220, however, limits the discre-
    tion to provide the credit, as follows:
    43
    Neb. Ct. R. § 4-204 (rev. 2016).
    44
    State on behalf of B.M., supra note 7.
    45
    Incontro, 
    supra note 4
    .
    46
    See State on behalf of B.M., supra note 7.
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    An obligor shall not be allowed a reduction in an
    existing support order solely because of the birth, adop-
    tion, or acknowledgment of subsequent children of the
    obligor; however, a duty to provide regular support for
    subsequent children may be raised as a defense to an
    action for an upward modification of such existing sup-
    port order.
    Accordingly, the child support guidelines allow the obligor
    of an existing support award a deduction for an obligation to
    support a subsequent child only when the obligee seeks an
    upward modification of support.47 Therefore, because Jessica
    did not seek an upward modification of support, Brandon was
    not entitled to a reduction of his support obligation.
    Second, we address whether the court erred in failing to
    find that Brandon proved that there was a material change of
    circumstances warranting a modification of the support order.
    The court heard testimony from both parties on their finan-
    cial circumstances before making its ruling not to modify the
    support order. Jessica testified that her income had increased
    by approximately $50 a month, to $1,304 a month, from
    the existing order to the time of trial. Brandon testified that
    his monthly income was about $2,600 a month until he was
    fired for missing work due to medical issues, his monthly
    income at the time of trial was about $2,000 a month from
    working a seasonal carpentry job and as a server, and he is
    actively seeking employment for at least $2,600 a month and
    has turned down job offers for $13 an hour, or about $2,180
    a month.
    However, Brandon did not supplement his discovery or
    submit evidence supporting his reason for the termination of
    employment or verifying his current income. The child support
    calculation worksheet itself states that the court will “require
    copies of [the] last 2 years’ tax returns to verify ‘total income’
    47
    Schwarz v. Schwarz, 
    289 Neb. 960
    , 
    857 N.W.2d 802
     (2015).
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    figures and copies of present wage stubs to verify the pattern
    of present wage earnings.”48
    While Brandon testified that his financial position had
    changed and that it was not the result of bad faith, he did
    not present any supporting evidence. Further, there was no
    evidence that the needs of the children had changed, that
    Brandon’s change in income was permanent, or that he suffered
    any decrease in earning capacity, and the evidence showed
    that Jessica’s financial position had changed only negligibly.
    Accordingly, we cannot say that the court abused its discretion
    in finding that Brandon was not entitled to a modification of
    the existing support order.
    Third, because the court provided Brandon the opportunity
    to present evidence relevant to whether a material change in
    circumstances had occurred, we find his argument that he was
    denied due process on the issue to be without merit.
    (e) Summary Remand of Appeal
    Is Not Required
    Brandon contends that by failing to attach a Nebraska child
    support calculation worksheet to the decree, the court violated
    § 4-203 of the child support guidelines. Section 4-203 provides
    that “[a]ll orders for child support, including modifications,
    must include a basic income and support calculation worksheet
    1, and if used, worksheet 2 or 3.”
    In Rutherford v. Rutherford,49 we considered an appeal
    from an order modifying the father’s child support obligation.
    In that case, there was no child support worksheet prepared
    by the trial court in the record and the court’s order merely
    included a calculation of the parties’ monthly net income and
    stated that it extrapolated the income figures and used the child
    support guidelines to determine the support obligations.
    48
    Neb. Ct. R. ch. 4, art. 2, worksheet 1, n.1 (rev. 2016). See, also, Henderson
    v. Henderson, 
    264 Neb. 916
    , 
    653 N.W.2d 226
     (2002).
    49
    Rutherford v. Rutherford, 
    277 Neb. 301
    , 
    761 N.W.2d 922
     (2009).
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    We held that the court’s failure to complete a worksheet as
    to the method it used to determine the modification of child
    support was an abuse of discretion and remanded the cause for
    the court to complete the applicable worksheet. We reasoned,
    in part, that “because there is no worksheet in the record, we
    do not know why the court awarded the amount of support it
    did, except that the court extrapolated the amount set forth in
    the guidelines.”50
    Further, we held:
    Henceforth, if a trial court fails to prepare the appli-
    cable worksheets, the parties are required to request that
    such worksheet be included in the trial court’s order.
    Orders for child support or modification which do not
    contain such worksheets will on appeal be summarily
    remanded to the trial court so that it can prepare the
    worksheets as required by the guidelines.51
    In this matter, however, the decree ordered Brandon to
    provide child support for the minor children “pursuant to the
    current Order of the District Court of Pawnee County in [case
    No. CI 14-12].” In doing so, the court did not adopt a new
    child support worksheet or calculations and merely determined
    that the existing child support order from the paternity action
    should remain the operative support obligation.
    Further, the determination in the dissolution decree—that
    Brandon shall provide support pursuant to the order in case
    No. CI 14-12—was not itself an order of support or modifica-
    tion requiring the completion of a worksheet. As stated above,
    in Rutherford, we reasoned that an order imposing or modi-
    fying child support shall include any applicable worksheets
    with the trial court’s order so that on appeal we know why the
    court awarded the amount of support it did. As the Nebraska
    Court of Appeals has explained, “[p]erhaps the most obvious
    purpose of this requirement is to ensure that the appellate
    50
    Id. at 305, 761 N.W.2d at 925-26.
    51
    Id. at 308, 761 N.W.2d at 927 (emphasis supplied).
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    courts are not left to speculate about the trial court’s conclu-
    sions. . . . These worksheets show the parties and the appellate
    courts that the trial court has ‘“done the math.”’”52
    Here, the record indicates that the prior support order and its
    accompanying child support worksheet were received into evi-
    dence as an exhibit. That exhibit showed the calculations used
    in case No. CI 14-12 to determine Brandon’s child support
    obligation. The existence in our record of the prior calcula-
    tion, coupled with the fact that the court did not impose a new
    child support obligation or modify the previous child support
    obligation, renders our holding in Rutherford inapplicable here.
    Therefore, this assignment of error is without merit.
    We note that while Rutherford is not applicable here, there
    may be circumstances where a child support worksheet is
    required to show the court’s findings that a new support order
    should not be imposed or a previous support order should not
    be modified. In addition, it is important that the trial court
    make clear, as it did here, that no additional child support
    order is being implemented and that the previous order remains
    the operative support obligation, so as to simplify the child
    support collection process.
    2. Bank Debt Was M arital Debt
    Brandon contends that it was inequitable to order him to
    pay one-half of the bank debt, or $411.97. He argues that the
    collection notice, dated September 18, 2014, and Jessica’s
    testimony that it was marital were insufficient because there
    was no evidence showing what the debt was for or when it
    was incurred.
    Under Nebraska’s divorce statutes, “[t]he purpose of a
    property division is to distribute the marital assets equitably
    between the parties.”53 The ultimate test in determining the
    52
    Molina v. Salgado-Bustamante, 
    21 Neb. App. 75
    , 82-83, 
    837 N.W.2d 553
    ,
    559 (2013).
    53
    
    Neb. Rev. Stat. § 42-365
     (Reissue 2016).
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    appropriateness of the division of property is fairness and rea-
    sonableness as determined by the facts of each case.54
    [31] Under § 42-365, the equitable division of property is
    a three-step process. The first step is to classify the parties’
    property as marital or nonmarital. The second step is to value
    the marital assets and marital liabilities of the parties. The third
    step is to calculate and divide the net marital estate between
    the parties in accordance with the principles contained in
    § 42-365.55
    [32,33] Marital debt includes only those obligations incurred
    during the marriage for the joint benefit of the parties.56 The
    burden to show that a debt is nonmarital is on the party making
    that assertion.57
    At the hearing, Brandon’s attorney questioned Jessica about
    the debt. Shortly after Brandon’s attorney began the question-
    ing, however, Jessica’s attorney objected to a question and,
    without ruling, the court directed Brandon’s attorney to “move
    on.” Brandon’s attorney neither objected to the court’s direc-
    tion nor made an argument as to why he needed to elicit addi-
    tional evidence on the subject.
    Brandon generally assigned error to the court’s not per-
    mitting him to respond to Jessica’s presentation of evi-
    dence. However, an issue not presented to or decided by the
    trial court is not appropriate for consideration on appeal.58
    Accordingly, we will not consider whether the court erred in
    preventing Brandon from eliciting further evidence on this
    issue, because Brandon’s attorney did not adequately present
    the issue to the trial court. Instead, we will consider only the
    record before us.
    54
    Bergmeier v. Bergmeier, 
    296 Neb. 440
    , 
    894 N.W.2d 266
     (2017).
    55
    See Osantowski, 
    supra note 6
    .
    56
    Millatmal v. Millatmal, 
    272 Neb. 452
    , 
    723 N.W.2d 79
     (2006).
    57
    
    Id.
    58
    Wayne L. Ryan Revocable Trust v. Ryan, 
    297 Neb. 761
    , 
    901 N.W.2d 671
    (2017).
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    Jessica testified that the bank debt was incurred while the
    parties were living together. Brandon presented no evidence
    that the debt was not incurred before the parties separated
    or that it was not for the parties’ joint benefit. Accordingly,
    Brandon failed to satisfy his burden to show that this debt
    was nonmarital. Therefore, this assignment of error is with-
    out merit.
    3. District Court Did Not A buse
    Its Discretion in Awarding
    Jessica Attorney Fees
    Brandon contends that the court’s award of $3,000 for
    attorney fees to Jessica was an abuse of discretion. He argues
    that under the relevant considerations for granting attorney
    fees, the circumstances of this case did not warrant making an
    award—in light of the short duration of the parties’ marriage,
    the simplicity of issues in the dissolution, and both parties’ lack
    of financial resources.
    [34,35] In awarding attorney fees in a dissolution action,
    a court should consider the nature of the case, the amount
    involved in the controversy, the services actually performed,
    the results obtained, the length of time required for prepara-
    tion and presentation of the case, the novelty and difficulty
    of the questions raised, and the customary charges of the bar
    for similar services.59 Additionally, courts have the inherent
    power to award attorney fees in certain unusual circumstances
    amounting to conduct during the course of litigation which
    is vexatious, unfounded, and dilatory, such that it amounts to
    bad faith.60
    While we agree that the issues involved in the dissolution
    were not overly complex and the marital estate was minus-
    cule, the proceedings lasted nearly 2 years and the attorney
    fees Jessica incurred were consistent with the proceedings.
    59
    Anderson v. Anderson, 
    290 Neb. 530
    , 
    861 N.W.2d 113
     (2015).
    60
    See White, 
    supra note 2
    .
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    Further, the court’s partial granting of attorney fees was ratio-
    nally related to the additional expenses incurred regarding
    the motion to compel and motion for sanctions filed against
    Brandon for failing to respond to Jessica’s discovery and the
    motion to withdrawal of Brandon’s attorney shortly before the
    scheduled final hearing. Therefore, we conclude that the court
    did not abuse its discretion by ordering Brandon to pay $3,000
    of attorney fees.
    4. R emaining Assignments
    of Error
    [36] Brandon also generally assigns error to the court’s
    decision as an abuse of discretion and incorrect as a matter of
    law. Concerning Brandon’s specific assignments of error, these
    assignments are without merit. In regard to any other rulings
    included in the court’s order, we do not consider assignments
    of error that are not both specifically assigned and argued. To
    be considered by an appellate court, an alleged error must be
    both specifically assigned and specifically argued in the brief
    of the party asserting the error.61
    V. CONCLUSION
    In the order of support entered by the Pawnee County
    District Court, in case No. CI 14-12, Brandon was ruled to
    be the legal father of Ariana and ordered to support her. The
    determination of paternity in case No. CI 14-12 was res judi-
    cata on the issue of paternity and could not be challenged in
    this case, absent Brandon’s pleading or motion for specific
    relief. Accordingly, the court’s rulings regarding Ariana were
    all within its authority in entering the dissolution decree.
    Further, while Brandon presented evidence that he was
    entitled to a modification of the order of support, the court
    did not abuse its discretion in considering the support order
    in case No. CI 14-12 and determining that Brandon had not
    61
    Waldron v. Roark, 
    298 Neb. 26
    , 
    902 N.W.2d 204
     (2017).
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    proved that a material change in circumstances had occurred.
    Because the court did not modify the existing order of sup-
    port, it was not required to attach a child support calculation
    worksheet to the decree.
    We also conclude that the court did not abuse its discretion
    in distributing the marital debts or awarding Jessica attorney
    fees. Finally, the record does not show that Brandon’s due
    proc­ess rights were violated regarding any of the issues on
    appeal. Therefore, we affirm.
    A ffirmed.
    Wright, J., not participating.