State on behalf of Elijah K. v. Marceline K. , 28 Neb. Ct. App. 772 ( 2020 )


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    STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
    Cite as 
    28 Neb. Ct. App. 772
    State of Nebraska on behalf of Elijah K.,
    a minor child, appellee, v. Marceline K.,
    appellant, and John T., appellee.
    ___ N.W.2d ___
    Filed August 25, 2020.   No. A-19-981.
    1. Paternity: Appeal and Error. In a filiation proceeding, the appellate
    court reviews the trial court’s judgment de novo on the record to deter-
    mine whether there has been an abuse of discretion by the trial judge,
    whose judgment will be upheld in the absence of an abuse of discretion.
    In such de novo review, when the evidence is in conflict, the appellate
    court considers, and may give weight to, the fact that the trial judge
    heard and observed the witnesses and accepted one version of the facts
    rather than another.
    2. Paternity: Child Support: Appeal and Error. A trial court’s award
    of child support in a paternity case will not be disturbed on appeal in
    the absence of an abuse of discretion. On questions of law, however,
    the appellate court has an independent obligation to reach the correct
    conclusion.
    3. Child Support: Parties: Public Assistance. The remedy specified in
    Neb. Rev. Stat. § 43-512.03 (Reissue 2016) is a means by which the
    State, as the real party in interest, may recover amounts which it has
    paid or is obligated to pay on behalf of a dependent child. Thus, the
    State’s right to sue under § 43-512.03 is conditioned upon the payment
    of public assistance benefits for a minor child.
    4. Paternity: Limitations of Actions. A guardian, next friend of the child,
    or the State is authorized to bring a paternity action on behalf of a child
    under Neb. Rev. Stat. § 43-1411(2) (Reissue 2016) within 18 years after
    the child’s birth.
    5. ____: ____. Neb. Rev. Stat. § 43-1411 (Reissue 2016) does not
    extend the statute of limitations for anyone other than the minor child
    involved.
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    STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
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    28 Neb. Ct. App. 772
    6. Paternity: Child Support. Pursuant to Neb. Rev. Stat. § 43-1411
    (Reissue 2016), the State, in its parens patriae role, may bring a pater-
    nity action on behalf of a minor child for future support.
    7. ____: ____. Retroactive support is included in the support that the trial
    court may order under Neb. Rev. Stat. § 43-1412(3) (Reissue 2016).
    8. Paternity: Child Support: Public Assistance. The State’s right to sue
    under Neb. Rev. Stat. § 43-1411 (Reissue 2016) is not conditioned upon
    the payment of public assistance benefits for the minor child.
    9. Actions: Parties. In an action filed by the State under Neb. Rev. Stat.
    § 43-1411 (Reissue 2016), the minor child is the real party in inter-
    est, and the State is authorized by statute to bring the action on the
    child’s behalf.
    Appeal from the District Court for Sarpy County: George
    A. Thompson, Judge. Affirmed.
    Britt H. Dudzinski, of Lustgarten & Roberts, P.C., L.L.O.,
    for appellant.
    Jerome J. Ortman for appellee John T.
    Pirtle, Bishop, and Welch, Judges.
    Bishop, Judge.
    INTRODUCTION
    Marceline K. appeals from the judgment of the Sarpy County
    District Court which established that she and John T. are the
    biological parents of their minor child, Elijah K., and ordered
    John to pay monthly child support. John was also ordered to
    pay child support retroactive to the filing of the complaint to
    establish paternity brought by the State of Nebraska in 2017.
    Marceline challenges the district court’s decision to not order
    retroactive child support back to the date of Elijah’s birth in
    2011. We affirm.
    BACKGROUND
    Marceline and John began a dating relationship in 2010;
    Elijah was born in September 2011. Since his birth, Elijah has
    lived with Marceline in Sarpy County, Nebraska. Marceline
    and John never married each other, nor lived together. John
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    was incarcerated from the time of Elijah’s birth until Elijah
    was 6 months old. Marceline indicated that John first met
    Elijah in March 2012. For about 1 month, John briefly visited
    Elijah “a couple times a week.” From then until August, John
    saw Elijah briefly “a few times.” There were periods in 2012
    and 2013 when Marceline and John ended and restarted dat-
    ing. They tried to reconcile in August and September 2013,
    and John would have seen Elijah during that time. John saw
    Elijah for about 15 minutes on a day in October. Marceline
    and John ended their relationship sometime in 2013. John had
    no in-person contact and little telephone contact with Elijah
    over the next 4 years. At some point, John moved to North
    Carolina.
    On September 11, 2017, the State, acting individually and
    also on behalf of Elijah, filed a complaint pursuant to Neb. Rev.
    Stat. §§ 43-512.03 and 43-512.04 (Reissue 2016), “and other
    pertinent Nebraska Statutes,” to establish paternity of Elijah.
    The State alleged that Marceline and John were Elijah’s bio-
    logical parents and that both had an ongoing duty and obliga-
    tion to support Elijah since Elijah’s birth. Among other things,
    the State asked for entry of a judgment of paternity decreeing
    that John was Elijah’s father and ordering John to pay current,
    prospective, and retroactive monthly child support.
    In his answer, John admitted that he was Elijah’s biologi-
    cal father and also alleged that he had two other minor chil-
    dren with a third party. In the same filing, John included a
    cross-complaint against Marceline regarding matters such as
    child custody and parenting time. Marceline also filed a cross-
    complaint against John seeking legal and physical custody of
    Elijah, child support and retroactive child support, and resolu-
    tion of “other paternity-related issues.”
    Trial took place on August 2, 2019. Marceline and John
    had already reached agreement on many issues, including
    paternity, child custody, the amount of John’s monthly child
    support obligation, and portions of parenting time. Among
    the remaining disputed issues for trial was the retroactivity of
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    STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
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    child support, which is the sole issue on appeal. At the begin-
    ning of trial, the State indicated it did not have a position on
    that issue. The State said that at the time of trial and “for some
    time” since the matter had been filed, “there ha[d] been no
    public assistance.” The State deferred to the district court on
    the issue. The State was then excused from trial without objec-
    tion by either party; Marceline and John then proceeded to
    adduce evidence.
    At the time of trial, Elijah was about a month shy of turn-
    ing 8 years old. He was still living at the same residence in
    Nebraska with Marceline; Marceline’s mother and grandmother
    also lived there. John was living in North Carolina with his
    wife and their two children, ages 3 and 4. Marceline’s evi-
    dence, along with what we discussed above, was essentially
    that John spent limited time with Elijah.
    John admitted that he had not contributed financial sup-
    port to Elijah from when Elijah was born. He testified that he
    “wasn’t in [Elijah’s] life at that moment,” and “[b]ack then”
    he was not financially stable, and they “were kids.” Regarding
    child support, John’s counsel questioned Marceline as follows:
    Q. [by John’s counsel] Did you personally file either of
    the lawsuits filed by the State of Nebraska?
    A. [by Marceline] No, sir.
    ....
    Q. . . . [Y]ou’ve never done anything to pursue the
    paternity, have you?
    A. Yes, I have.
    Q. You filed a cross[-]complaint after the State filed
    the last time, correct?
    A. No.
    ....
    Q. Well, didn’t you file a cross[-]complaint?
    A. Well, yes, that was after I filled out child support
    papers five times.
    Q. Right because you were receiving public assistance?
    A. No, sir.
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    STATE ON BEHALF OF ELIJAH K. v. MARCELINE K.
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    28 Neb. Ct. App. 772
    Q. What were you receiving?
    A. When [Elijah] was first born he got Medicaid. Other
    than that —
    The parties agreed that John’s monthly child support obli-
    gation, both for future and retroactive child support, should
    be $363 per month. Marceline wanted John to pay retroactive
    child support back to October 1, 2011, which was the first day
    of the month following Elijah’s birth, at the rate of $108 per
    month. John conceded that he was willing to pay retroactive
    child support at that rate. However, he wanted child support to
    go back only to the first day of the month after he was served
    with the State’s complaint.
    On October 4, 2019, the district court issued a “Judgment
    of Paternity.” Marceline and John were declared Elijah’s bio-
    logical parents. Marceline was awarded the legal and physi-
    cal custody of Elijah, subject to John’s parenting time as set
    forth in a parenting plan attached to the order. The district
    court noted that Marceline asked for an award of child sup-
    port retroactive to Elijah’s birth, whereas John asked that
    child support be awarded retroactively only to the date of the
    State’s complaint.
    The district court found that this action was brought by the
    State on behalf of Elijah pursuant to “Neb. Rev. Stat. §43-512
    [sic] (Assistance for Certain Children).” The district court
    then stated:
    Neither [Marceline] nor [John] has the ability to bring
    a paternity action as the statute of limitations has long
    since passed. As such, the cause of action for retroactiv-
    ity belongs to the minor child through the State and not
    [Marceline]. The State’s Complaint requests “an Order
    requiring [John] to pay current, prospective and retroac-
    tive monthly child support for said child.” The State’s
    interest in this matter occurred when [Marceline] began
    to receive public assistance. When this happened, the
    State received its statutory authority to file the paternity
    action. The record is unclear exactly when [Marceline]
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    began to receive aid. The Court finds that this date is
    important because the Dunkle Court limited retroactive
    child support to the date a mother began to receive public
    assistance. The Court therefore finds that the State, hav-
    ing failed to evince when [Marceline] began receiving
    aid, should be limited to retroactive child support back
    to the date of the filing of its Complaint through the
    minor child.
    The district court further reviewed the determination of
    retroactivity under the district court’s exercise of its equitable
    powers. It found that Marceline “failed to bring any paternity
    case during the four years after the birth of the child” and that
    “[w]hile she shouldered the burden of raising [Elijah], she also
    controlled when [John] would have contact with him.” The
    district court observed that Marceline now sought to enforce
    a judgment which was a “financial detriment” to John. “Any
    amount of retroactive child support would be askew from the
    proper amount due each year from the child support guidelines
    given the number of years and variability of income for the
    parties during these years.” The district court added that the
    lump sum would be significant and that John would have an
    “inability to pay such an amount for anything due prior to the
    filing of the [State’s] [c]omplaint.” The district court found it
    was equitable to limit the award of retroactive child support to
    October 1, 2017, the first day of the month after the State filed
    its complaint.
    John was ordered to pay child support of $358 per month,
    retroactive to October 1, 2017; although the district court
    indicated it found the parties’ stipulation to a monthly child
    support amount ($363 per month) to be “acceptable,” it based
    the ordered amount of $358 per month on its own, slightly
    different, child support calculation and attached its calculation
    to its order. Marceline does not assign error to this calcula-
    tion. In addition to John’s regular child support obligation,
    beginning on October 1, 2019, he was to pay an additional
    $108 per month toward the child support arrearage owed as
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    a result of the retroactive child support ordered until the
    arrearage was paid in full.
    Marceline appeals.
    ASSIGNMENTS OF ERROR
    Marceline claims the district court erred by (1) denying her
    request to make child support retroactive to Elijah’s date of
    birth and (2) determining that John was unable to pay retroac-
    tive child support.
    STANDARD OF REVIEW
    [1] In a filiation proceeding, the appellate court reviews
    the trial court’s judgment de novo on the record to deter-
    mine whether there has been an abuse of discretion by the
    trial judge, whose judgment will be upheld in the absence
    of an abuse of discretion. State on behalf of Hopkins v. Batt,
    
    253 Neb. 852
    , 
    573 N.W.2d 425
    (1998), overruled on other
    grounds, State on behalf of Miah S. v. Ian K., 
    306 Neb. 372
    ,
    
    945 N.W.2d 178
    (2020). In such de novo review, when the
    evidence is in conflict, the appellate court considers, and may
    give weight to, the fact that the trial judge heard and observed
    the witnesses and accepted one version of the facts rather than
    another.
    Id. [2]
    A trial court’s award of child support in a paternity case
    will not be disturbed on appeal in the absence of an abuse of
    discretion.
    Id. On questions of
    law, however, the appellate
    court has an independent obligation to reach the correct con-
    clusion.
    Id. ANALYSIS Marceline claims
    the district court abused its discretion by
    (1) not making child support retroactive to Elijah’s date of
    birth and (2) finding that John was unable to pay retroactive
    child support back to that date.
    Marceline argues that the district court “incorrectly” stated
    in its order that this action was brought pursuant to Neb.
    Rev. Stat. § 43-512 (Reissue 2016), “while the actual [com-
    plaint] cites Nebraska Revised Statute § 43-513.02 [sic], which
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    authorizes a county attorney to establish paternity and collect
    child and medical support on behalf of children born out of
    wedlock, as here.” Brief for appellant at 13. She believes the
    State did not need to further evince when she began receiving
    aid, claiming she “never” received “aid or public assistance.”
    Id. She asserts that
    because the State’s complaint was filed
    “correctly” under “§ 43-513.02 [sic],” the district court’s deter-
    mination that public assistance was relevant to an award of
    retroactive child support was an abuse of discretion. Brief for
    appellant at 13.
    [3] The State, acting individually and also on behalf of
    Elijah, filed its complaint pursuant to §§ 43-512.03 and
    43-512.04, “and other pertinent Nebraska Statutes.” Section
    43-512.03 provides for various types of child support enforce-
    ment actions. Under § 43-512.03(1), the county attorney or
    authorized attorney shall:
    (a) On request by the Department of Health and Human
    Services [after its periodic review of cases of individuals
    receiving enforcement services] or when the investigation
    or application filed under section 43-512 or 43-512.02
    justifies, file a complaint against a nonsupporting party
    in the district, county, or separate juvenile court praying
    for an order for child or medical support in cases when
    there is no existing child or medical support order. After
    notice and hearing, the court shall adjudicate the child
    and medical support liability of either party and enter an
    order accordingly;
    (b) Enforce child, spousal, and medical support orders
    by an action for income withholding pursuant to the
    Income Withholding for Child Support Act;
    (c) In addition to income withholding, enforce child,
    spousal, and medical support orders by other civil actions
    or administrative actions, citing the defendant for con-
    tempt, or filing a criminal complaint;
    (d) Establish paternity and collect child and medical
    support on behalf of children born out of wedlock; and
    (e) Carry out sections 43-512.12 to 43-512.18.
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    Section 43-512.04 relates to the procedure involved and manner
    of proceedings in an action for child support or medical sup-
    port. These statutes appear under the article titled “Assistance
    for Certain Children” and are part of a collection of provisions
    that are to be construed to be “new, supplemental, and indepen-
    dent legislation upon the subjects of assistance and services for
    delinquent, dependent, and medically handicapped children.”
    See Neb. Rev. Stat. § 43-501 (Reissue 2016). A dependent
    child is one who receives or is entitled to receive public assist­
    ance. See, Neb. Rev. Stat. § 43-504(1) (Reissue 2016); State
    on behalf of Hopkins v. Batt, 
    253 Neb. 852
    , 
    573 N.W.2d 425
    (1998), overruled on other grounds, State on behalf of Miah S.
    v. Ian K., 
    306 Neb. 372
    , 
    945 N.W.2d 178
    (2020). The remedy
    specified in § 43-512.03 is a means by which the State, as the
    real party in interest, may recover amounts which it has paid
    or is obligated to pay on behalf of a dependent child. State on
    behalf of Hopkins v. 
    Batt, supra
    . Thus, the State’s right to sue
    under § 43-512.03 is conditioned upon the payment of public
    assistance benefits for a minor child. See State on behalf of
    Hopkins v. 
    Batt, supra
    .
    The State filed its complaint under the authority given to it
    by § 43-512.03. Section 43-512.03(1)(d) allows the State to
    establish paternity and collect child support on behalf of Elijah.
    However, the State’s right to an action under that section was
    conditioned on the State having provided or being obligated to
    provide Elijah public assistance during some time period. See
    State on behalf of Hopkins v. 
    Batt, supra
    .
    The State did not allege in its complaint that Elijah ever
    received or was entitled to receive public assistance. Although
    it is not evidence, it is worth noting the State’s comment at trial
    that at that time and “for some time” since the matter had been
    filed, “there ha[d] been no public assistance.” The State did not
    have a position on retroactive child support. Further, the only
    trial evidence regarding this topic was Marceline’s testimony
    that when Elijah was “first born,” he received Medicaid, and
    her indication that she was not receiving public assistance at
    the time she filed her cross-complaint, which was about 10
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    months after the State filed its complaint. We agree with the
    district court’s finding that the record is “unclear” as to when
    Marceline began to receive aid for Elijah’s benefit; however,
    as we will explain next, such evidence is not pertinent to our
    disposition of this appeal.
    By the time of trial, the State had no position on the retro-
    activity of child support, presumably because it was no longer
    seeking recovery for itself of public assistance amounts, if
    any, that it paid or would be paying on behalf of Elijah. See
    id. (under § 43-512.03,
    State, as real party in interest, may
    recover amounts it has paid or is obligated to pay on behalf
    of dependent child). In fact, given that the State took no posi-
    tion on the issue during trial, the State’s counsel was excused
    from trial shortly after it began. There is no question that under
    § 43-512.03, the State was limited to recover only amounts it
    had paid or was obligated to pay on behalf of Elijah, and there
    was no evidence of such past payments or future obligations.
    See State on behalf of Hopkins v. 
    Batt, supra
    (as real party in
    interest under § 43-512.03, State may recover amounts which
    it has paid or is obligated to pay on behalf of dependent child).
    Therefore, we do not agree with the district court that retroac-
    tive child support could be awarded under § 43-512.03, given
    the lack of evidence adduced by the State as to public assist­
    ance amounts the State paid or was obligated to pay on behalf
    of Elijah.
    [4,5] However, Marceline, John, and the district court also
    refer to other statutes and cases related to the application of
    Neb. Rev. Stat. § 43-1411 (Reissue 2016). Under § 43-1411,
    a civil proceeding to establish the paternity of a child may be
    instituted by (1) the mother or alleged father of such child,
    either during pregnancy or within 4 years after the child’s birth
    or (2) the guardian or next friend of such child or the State,
    either during pregnancy or within 18 years after the child’s
    birth. As correctly pointed out by the district court, Marceline
    and John were time barred from filing such an action under
    § 43-1411(1) in their individual capacities. But a guardian,
    next friend of the child, or the State was authorized to bring
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    an action on Elijah’s behalf within 18 years after his birth. See
    § 43-1411(2). See, also, State on behalf of S.M. v. Oglesby,
    
    244 Neb. 880
    , 
    510 N.W.2d 53
    (1994) (§ 43-1411 does not
    extend statute of limitations for anyone other than minor child
    involved). And while the State did not specifically allege that
    it was filing its complaint under § 43-1411, it can be con-
    strued to have generally done so by stating that its complaint
    was brought individually and “also on behalf of [Elijah]”
    pursuant to §§ 43-512.03 and 43-512.04, “and other pertinent
    Nebraska Statutes.”
    [6-9] The Nebraska Supreme Court has construed § 43-1411
    as a means by which the State, in its parens patriae role, may
    bring a paternity action on behalf of a minor child for future
    support. See, State on behalf of Hopkins v. Batt, 
    253 Neb. 852
    ,
    
    573 N.W.2d 425
    (1998), overruled on other grounds, State on
    behalf of Miah S. v. Ian K., 
    306 Neb. 372
    , 
    945 N.W.2d 178
    (2020); State on behalf of B.A.T. v. S.K.D., 
    246 Neb. 616
    , 
    522 N.W.2d 393
    (1994); State on behalf of S.M. v. 
    Oglesby, supra
    .
    Where paternity is established in an action commenced under
    Neb. Rev. Stat. § 43-1412 (Reissue 2016), the court shall retain
    jurisdiction and order the father to pay support, court costs, and
    reasonable attorney fees. This court has held that retroactive
    support is included in the support that the trial court may order
    under § 43-1412(3). See Henke v. Guerrero, 
    13 Neb. Ct. App. 337
    ,
    
    692 N.W.2d 762
    (2005). In contrast to § 43-512.03, the State’s
    right to sue under § 43-1411 is not conditioned upon the pay-
    ment of public assistance benefits for the minor child. State
    on behalf of Hopkins v. 
    Batt, supra
    . And, in an action filed
    by the State under § 43-1411, the minor child is the real party
    in interest, and the State is authorized by statute to bring the
    action on the child’s behalf. See State on behalf of Hopkins v.
    
    Batt, supra
    .
    Therefore, evidence of whether and when Marceline received
    public assistance or was eligible to receive public assistance on
    behalf of Elijah is irrelevant to a claim brought by the State
    under § 43-1411 on behalf of Elijah in terms of Elijah’s right
    to past, present, and future child support. See State on behalf
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    of Hopkins v. 
    Batt, supra
    . We recognize that § 43-1411 was
    not specifically pled by the State in its complaint, nor was any
    argument made by the State to the district court related to this
    statute. Rather, the State abandoned any claim for itself or on
    behalf of Elijah related to retroactive child support. As such,
    it is understandable that the district court focused on applying
    § 43-512.03 when considering retroactivity rather than apply-
    ing § 43-1411 to the evidence presented.
    That said, as previously noted, this court has held that ret-
    roactive support is included in the support that the trial court
    may order under § 43-1412(3). See Henke v. 
    Guerrero, supra
    .
    Therefore, the district court had the authority to award retro-
    active child support on behalf of Elijah in this case pursuant
    to § 43-1412(3), but, notably, the State has not appealed the
    district court’s rationale and decision limiting retroactive child
    support to the month following commencement of the State’s
    action. And as correctly stated by the district court in its order,
    “the cause of action for retroactivity belongs to the minor child
    through the State and not [Marceline].” Since the State is the
    party that filed on behalf of Elijah, and the State did not appeal
    the district court’s decision related to retroactive support, the
    question is whether Marceline can do so. As we explain next,
    we conclude she cannot.
    As already discussed, neither Marceline nor John could
    bring an action in her or his own right pursuant to § 43-1411 to
    establish paternity and support, as the 4-year statute of limita-
    tions had long since passed. Only a guardian, next friend of a
    minor child, or the State could bring such an action within 18
    years after the child’s birth. The State did in fact file its action
    in this case in its individual capacity and on behalf of Elijah.
    Marceline, however, brought her cross-complaint only in her
    individual capacity; she did not bring her action on behalf of
    Elijah. In her cross-complaint, Marceline pled: “Defendant
    Mother, [Marceline], pursuant to Neb. Rev. Stat. Section
    43-1411, et. seq., for her cause of action against the Defendant
    Father, states as follows[.]” Marceline asserts “her” cause
    of action against John, and nowhere in her cross-complaint
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    does Marceline assert any cause of action on behalf of Elijah.
    Marceline’s individual right to bring “her” cause of action
    under § 43-1411 to establish paternity and support was time
    barred. While Marceline may have been able to file as next
    friend on behalf of Elijah to state a claim for his right to ret-
    roactive support, she did not do so. See, e.g., Sylvis v. Walling,
    
    248 Neb. 168
    , 
    532 N.W.2d 312
    (1995) (cause of action for
    retroactive support of child born out of wedlock belongs not
    to mother, but to child; mother brought action as next friend of
    child after 4-year statute of limitations but before minor child’s
    18th birthday, so action was not time barred). Marceline, in
    her individual capacity, cannot appeal a right belonging to
    Elijah when she failed to join the action on his behalf as his
    next friend. Instead, only the State was positioned to assert any
    claims on behalf of Elijah, and it has elected to not appeal any
    aspect of the district court’s decision.
    Accordingly, we need not further address Marceline’s argu-
    ments related to retroactive child support.
    CONCLUSION
    The October 4, 2019, judgment of the district court is
    affirmed.
    Affirmed.