   Decisions of the Nebraska Court of Appeals
914	22 NEBRASKA APPELLATE REPORTS



See, also, State v. Shelby, 194 Neb. 445, 232 N.W.2d 23 (1975)
(affirming resentencing where defendant was invalidly sen-
tenced to treatment or confinement in Lincoln Regional Center
under discretion of director).
   Because no valid sentence was initially imposed upon
Minnick, the court had the authority to bring Minnick back
into the courtroom and impose a valid complete sentence, even
if it increased the term of imprisonment.

                        CONCLUSION
   Because the original sentence was unauthorized and there-
fore void, the district court did not err in imposing a new
sentence on Minnick. Accordingly, we affirm the conviction
and sentence.
                                                  Affirmed.



            State      Nebraska on behalf of Andrew D.,
                      of
               a child under   18 years of age, appellee,
                v. Bryan B., defendant and third -party
                  plaintiff, appellant, and Monica D.,
                    third -party defendant, appellee.
                                     ___ N.W.2d ___

                           Filed May 26, 2015.    No. A-14-225.

 1.	 Actions: Paternity: Child Support: Equity. While a paternity action is one at
      law, the award of child support in such an action is equitable in nature.
 2.	 Paternity: Child Support: Appeal and Error. A trial court’s award of child sup-
      port in a paternity case will not be disturbed on appeal in the absence of an abuse
      of discretion by the trial court.
 3.	 Child Support: Rules of the Supreme Court: Insurance: Proof. The Nebraska
      Child Support Guidelines provide that the increased cost to the parent for health
      insurance for the children shall be prorated between the parents. The parent pay-
      ing the premium receives a credit against his or her share of the monthly support,
      provided that the parent requesting the credit submits proof of the cost of health
      insurance coverage for the children.
 4.	 Child Support. As a general matter, parties’ current earnings are to be used in
      calculating child support.
  5.	 ____. If there is substantial fluctuation in income from year to year, the trial court
      may use income averaging to calculate income for child support purposes.
          Decisions of the Nebraska Court of Appeals
	            STATE ON BEHALF OF ANDREW D. v. BRYAN B.	915
	                      Cite as 22 Neb. App. 914

   Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed in part as modified, and in part
reversed and remanded with directions.
  Grant A. Forsberg, of Forsberg Law, P.C., L.L.O., for
appellant.
  Julie Fowler, of Child Support Enforcement Office, for
appellee State of Nebraska.
  Michael B. Lustgarten, Britt H. Dudzinski, and A. Jill Stigge,
Senior Certified Law Student, of Lustgarten & Roberts, P.C.,
L.L.O., for appellee Monica D.
    Moore, Chief Judge, and Inbody and Pirtle, Judges.
    Pirtle, Judge.
                      INTRODUCTION
   Bryan B. appeals from an order of the district court for
Douglas County determining custody and child support for
his minor child, Andrew D. Bryan challenges the court’s child
support calculation, taking issue with the health insurance
deduction given to the child’s mother, Monica D., and the
income figures used for both parties. He also challenges a
provision in the order requiring him to submit to random drug
tests at Monica’s request. Based on the reasons that follow,
we affirm in part as modified, and in part reverse and remand
with directions.
                       BACKGROUND
   Bryan and Monica are the biological parents of Andrew,
born in 2011. In November 2012, the State on behalf of
Andrew filed a complaint to establish paternity and support.
Both Bryan and Monica filed an answer and cross-claim.
   In May 2013, Monica filed a motion asking the court to
enter an order requiring Bryan to submit to hair follicle drug
testing. Monica alleged that Bryan had initially voluntarily
agreed to comply with such testing, but later refused after such
testing was set up and paid for. The motion also requested tem-
porary orders regarding physical and legal custody, visitation,
   Decisions of the Nebraska Court of Appeals
916	22 NEBRASKA APPELLATE REPORTS



child support, daycare expenses, health insurance coverage for
Andrew, and attorney fees.
   The court entered a temporary order in June 2013, awarding
Monica temporary sole legal and physical custody, ordering
Bryan to pay child support and 50 percent of daycare expenses,
ordering Monica to provide health insurance for Andrew if
available through her employer, and ordering Bryan to submit
to a hair follicle drug test or a urinalysis within 24 hours of
Monica’s request at a facility of her choice.
   Bryan submitted to a drug test in June 2013, the results of
which were negative for drugs, and another test in October
2013, the results of which were positive for marijuana.
   Trial was held on the complaint to establish paternity and
support in December 2013. The evidence showed that Bryan
is a self-employed mechanic and owns an automobile repair
business. Bryan admitted that he has failed to file personal
and business income tax returns since he started his busi-
ness in 2008, stating that he is a “poor paper manager.”
Accordingly, there were no income tax returns presented to
the court to use in determining Bryan’s income for child sup-
port purposes.
   Bryan testified that after paying the bills of his business,
he makes about $2,000 per month in income. He also pre-
sented exhibit 7, an estimated income statement for his busi-
ness for the years 2012 and 2013. The exhibit showed a net
income of $14,727.60 for 2012, a net income of $18,333.60
for 2013, and monthly net income of $1,527.80. Brian pre-
sented a second exhibit, exhibit 8, which showed his monthly
deposits and withdrawals from December 2011 through
November 2013 for his business checking account. Between
December 2011 and December 2012, his monthly deposit
average was $17,856.89 and his monthly withdrawal aver-
age was $17,399.37. Between January 2013 and November
2013, his monthly deposit average was $20,572.30 and his
monthly withdrawal average was $20,698.67. Bryan further
presented exhibit 6, an estimated income statement for the
building where his business is located, which building he
owns. It showed a net loss of $34,989.88 for 2013, as well
        Decisions of the Nebraska Court of Appeals
	          STATE ON BEHALF OF ANDREW D. v. BRYAN B.	917
	                    Cite as 22 Neb. App. 914

as a monthly net loss of $2,915.82. Monica objected to the
admission of all three exhibits, and the court overruled the
objection, stating it would give the exhibits the value the
court believed they deserved.
   Bryan testified that he leases part of the building where
his business is located. He also has some storage units on the
property that he rents out. Bryan also owns a two-unit building
with his parents that they rent out. Bryan testified that he nets
about $100 per month from the building. Bryan testified that
he also owns a “double-wide modular, or trailer house,” that he
was in the process of renovating at the time of trial. He hoped
to rent it out after the construction was done. He also owns a
piece of unimproved real estate with his brother.
   Bryan testified that between his business and his rental prop-
erty, $2,500 was a reasonable amount of monthly income to
use for him in the child support calculation.
   Bryan testified that he uses a computer program named
“QuickBooks” for his business. Prior to trial, Bryan provided
Monica’s counsel with a copy of the QuickBooks records for
his business. On cross-examination, Monica’s counsel pre-
sented Bryan with exhibit 3, a balance sheet dated December
3, 2013, for Bryan’s business, printed from the QuickBooks
records Bryan provided Monica. It showed $602,995.75 in
total assets, $20,080.94 in total liabilities, and $582,914.81 in
total equity. Bryan contended that the balance sheet was not
accurate because it did not reflect the expenses and liabilities
of the business, only income. Bryan testified that he does not
record expenses in QuickBooks and that he only uses it for
estimates and receipts. Bryan’s counsel objected to the admis-
sion of the exhibit into evidence, and the trial court overruled
the objection.
   Monica testified about her work history for the past several
years before trial. She testified that in 2010, she worked for
a company where she made $171,682. She left her employ-
ment with that company and was unemployed for a time, then
worked for another company, where her salary was $50,000
per year. Monica testified that she left that company to work
as an independent contractor for a business where she was
   Decisions of the Nebraska Court of Appeals
918	22 NEBRASKA APPELLATE REPORTS



earning $6,200 per month, or $74,000 per year. The day before
trial, Monica began working as an independent contractor for
a different business and was going to make $6,000 per month,
or $72,000 per year. Her contract was for 3 months, and after
that time, her position and salary were to be reevaluated.
Monica’s tax returns for the years 2010, 2011, and 2012 were
entered into evidence. The tax returns showed that in 2010,
she earned $171,682; in 2011, she earned $124,856; and in
2012, she earned $39,553.
   Monica also testified that Andrew was not covered by
health insurance at the time of trial, but that she intended
to seek private health insurance coverage for him. She testi-
fied that she had investigated the cost of a “catastrophic-only
health insurance policy” and that the cost would be about $250
per month.
   There was also testimony from both parties regarding
Bryan’s past marijuana use. Monica testified that in the 4
years that she and Bryan were together, Bryan would smoke
marijuana daily. She testified that after their relationship
ended in 2012, Bryan told her he was trying to quit smok-
ing marijuana, but he admitted that during their relationship,
he bought marijuana on a weekly basis and had been spend-
ing $400 per month. Monica testified that she was asking
the court to include in the paternity order a similar drug test
provision to that included in the temporary order. She indi-
cated that Bryan had agreed to the provision in the temporary
order requiring him to submit to a hair follicle drug test or a
urinalysis at her instruction. She testified that her request to
have a similar provision included in the paternity order was
based on the fact that Bryan tested positive for marijuana in
October 2013. She further testified that the provision she was
requesting was modified somewhat from that in the temporary
order. Monica stated that the provision could limit the number
of tests to no more than four per year and that it could state
if the drug tests are clean for 1 year, the testing requirement
would end.
   Bryan testified that he had not smoked marijuana at all since
June 2013 and that the positive test in October must have been
        Decisions of the Nebraska Court of Appeals
	          STATE ON BEHALF OF ANDREW D. v. BRYAN B.	919
	                    Cite as 22 Neb. App. 914

due to marijuana use from June or earlier. He testified that
prior to June 2013, he smoked marijuana every few weeks. He
denied smoking marijuana daily and denied spending $400 per
month as Monica claimed. He also testified that he has never
smoked marijuana around Andrew.
   When asked whether he agreed to the drug testing provision
in the temporary order, Bryan indicated that he did, but only
because his attorney told him that he did not have a choice.
Bryan testified that he did not want the drug testing provision
in the paternity order because he objects to the hair follicle
drug test being a method of testing. Bryan testified that he told
Monica he would take a urinalysis.
   A certified professional collector for a drug testing com-
pany testified that she performed the collection of Bryan’s hair
specimen for the October 2013 drug test and sent it to a labo-
ratory where the hair sample was tested to determine if Bryan
had used drugs. After the testing was conducted, the laboratory
notified the collector of the results, which were positive for
“THC metabolite,” or marijuana. She further explained the
positive test results indicated that Bryan had smoked marijuana
at some point in the past 90 days before the sample was taken,
but the results do not indicate how often Bryan had smoked
marijuana in the past 90 days.
   The trial court entered an order on February 11, 2014,
finding that Bryan and Monica were the biological parents of
Andrew, awarding Bryan and Monica joint legal custody, and
awarding Monica sole physical custody of Andrew subject
to Bryan’s parenting time. Bryan was ordered to pay child
support in the amount of $470 per month, which the court
determined by using $3,500 per month for Bryan’s income and
$6,000 per month for Monica’s income. Bryan was ordered
to pay 34 percent of Andrew’s daycare expenses, and Monica
was ordered to obtain and maintain private health insurance
for Andrew. The trial court determined that Monica was pay-
ing $205 per month for health insurance coverage and included
that amount in the child support calculation. The court’s order
states that the cost of health insurance was determined by
documentation attached to the order, and marked as exhibit C,
   Decisions of the Nebraska Court of Appeals
920	22 NEBRASKA APPELLATE REPORTS



which indicates that Monica pays $205 per month for health
insurance for Andrew.
   The court’s order also required Bryan to submit to a hair fol-
licle drug test or a urinalysis at Monica’s request and expense,
no more than four times annually. The order provided that if
the test results are negative for a period of 12 months, the drug
testing requirement will terminate.
                 ASSIGNMENTS OF ERROR
   Bryan assigns that the trial court erred in (1) granting
Monica a health insurance deduction without any evidence of
the cost of such insurance, (2) basing Bryan’s income for child
support purposes on speculation, (3) failing to apply a 3-year
average of Monica’s income in calculating child support, and
(4) requiring Bryan to submit to a hair follicle drug test.
                     STANDARD OF REVIEW
   [1,2] While a paternity action is one at law, the award of
child support in such an action is equitable in nature. Citta
v. Facka, 19 Neb. App. 736, 812 N.W.2d 917 (2012). 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 by
the trial court. Id.
                          ANALYSIS
Health Insurance Deduction.
   Bryan first assigns that the trial court erred in granting
Monica a health insurance deduction for child support purposes
without any evidence of the cost of such insurance. Monica
testified that Andrew was not covered by health insurance at
the time of trial, but that she intended to seek private health
insurance coverage for him. She testified that she had inves-
tigated the cost of a “catastrophic-only” policy and the cost
would be approximately $250 per month. Monica did not pre­
sent any evidence other than her own testimony to show what
the cost of health insurance would be.
   [3] The Nebraska Child Support Guidelines provide that the
increased cost to the parent for health insurance for the chil-
dren shall be prorated between the parents. The parent paying
the premium receives a credit against his or her share of the
        Decisions of the Nebraska Court of Appeals
	          STATE ON BEHALF OF ANDREW D. v. BRYAN B.	921
	                    Cite as 22 Neb. App. 914

monthly support, provided that the parent requesting the credit
submits proof of the cost of health insurance coverage for the
children. See, Neb. Ct. R. § 4-215(A) (rev. 2011); Patton v.
Patton, 20 Neb. App. 51, 818 N.W.2d 624 (2012).
   Monica failed to submit proof of the cost of health insurance
for Andrew. She presented no documentation to the court at
the time of trial regarding the expense of health insurance. The
only evidence presented was her own testimony that insurance
would cost approximately $250 per month.
   The trial court, however, relied on a document that it
attached to its order and concluded that Monica was paying
$205 per month for health insurance. There is nothing in the
record to indicate where this document came from, and it was
not entered into evidence at trial. Further, there is nothing in
the record to indicate that the trial court left the record open
to give Monica time to present documentation regarding insur-
ance costs. As such, there is no evidence in the record to sup-
port the figure used by the trial court.
   We conclude that Monica failed to prove the cost of health
insurance for Andrew and that the trial court erred in rely-
ing on a document that was not in evidence. The trial court
erred in granting Monica a health insurance deduction without
any evidence of the cost of such insurance. On remand, the
court is directed to recalculate child support without allowing
Monica a health insurance deduction for Andrew.

Bryan’s Income.
   Bryan next assigns that the trial court erred in basing his
income for child support purposes on speculation. Specifically,
he argues that the court erred in accepting and relying on
exhibit 3, a balance sheet dated December 3, 2013, for Bryan’s
business, printed from the QuickBooks records Bryan pro-
vided Monica, in determining his income. He contends that the
exhibit did not accurately depict his true earnings or income
and that the court arbitrarily determined his income was $3,500
per month.
   The admission of exhibit 3 was within the trial court’s dis-
cretion. It was produced from the copy of the QuickBooks
records Bryan provided to Monica prior to trial, which were
   Decisions of the Nebraska Court of Appeals
922	22 NEBRASKA APPELLATE REPORTS



the only financial business records Bryan kept. Although the
use of the balance sheet was not ideal, there were no income
tax returns to rely on, because Bryan had not filed personal or
business tax returns since 2008.
   Further, the court did not rely solely on exhibit 3. In
addition to accepting exhibit 3 into evidence, the trial court
also accepted three exhibits presented by Bryan: an estimated
income statement for his business for the years 2012 and
2013 (exhibit 7); monthly deposits and withdrawals from
December 2011 through November 2013 for his business
checking account (exhibit 8); and an estimated income state-
ment for the building where his business is located, which
building he owns (exhibit 6). The court also heard testimony
from Bryan in regard to how these exhibits were prepared,
the business records he kept or did not keep, and his rental
properties. Although the court specifically referred to exhibit 3
in its oral pronouncement of its decision that Bryan’s income
was $3,500 per month, the court also stated that “based on
the evidence and lack thereof because of [Bryan’s] refusal to
file a tax return as required by law for the past four years, he
should have a total monthly income from all sources attributed
to him.” Therefore, the court took into consideration all the
evidence presented in regard to Bryan’s income and considered
his income from all sources.
   Bryan put himself in the position in which he now claims
error. There was no clear evidence of his income because he
voluntarily failed to file tax returns since 2008 and does not
keep reliable or complete business records. Accordingly, the
court had to piece together the evidence it had the best it could
to determine Bryan’s income. We do not conclude that the trial
court abused its discretion in determining that Bryan’s income
is $3,500 per month for child support purposes.
Monica’s Income.
   Bryan also assigns that the trial court erred in failing to use
a 3-year average of Monica’s income for purposes of the child
support calculation. Monica testified that in the last 3 years,
she has had several different jobs, most of them involving
sales, and her tax returns show that her income has varied in
        Decisions of the Nebraska Court of Appeals
	          STATE ON BEHALF OF ANDREW D. v. BRYAN B.	923
	                    Cite as 22 Neb. App. 914

the 3 years before trial. At the time of trial, Monica was earn-
ing $6,000 per month, which is the income amount that the
trial court used in the child support calculation. Bryan contends
that the court should have considered Monica’s fluctuation in
income and should have averaged her income for 2010, 2011,
and 2012, resulting in income of $9,335 per month, rather than
$6,000 per month.
   [4,5] As a general matter, parties’ current earnings are to
be used in calculating child support. Peter v. Peter, 262 Neb.
1017, 637 N.W.2d 865 (2002). However, if there is substantial
fluctuation in income from year to year, the trial court may use
income averaging to calculate income for child support pur-
poses. Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007).
The Nebraska Child Support Guidelines specifically allow for
income averaging in certain circumstances. Worksheet 1 states:
“In the event of substantial fluctuations of annual earnings of
either party during the immediate past 3 years, the income may
be averaged to determine the percent contribution of each par-
ent as shown in item 6. The calculation of the average income
shall be attached to this worksheet.”
   Although the trial court in the present case could have found
that a 3-year average of Monica’s earnings was appropriate, it
was not required to. Worksheet 1 states that “the income may
be averaged” when there have been substantial fluctuations in
annual earnings.
   Further, Monica’s earnings during the past 3 years have
decreased each year. This court has held that a steady decline
in a parent’s income is not “substantial fluctuations” in
income. In State on behalf of Hannon v. Rosenberg, 11 Neb.
App. 518, 654 N.W.2d 752 (2002), the father’s income had
shown a steady decrease since 1997, as opposed to the “sub-
stantial fluctuations” required by Worksheet 1. The father had
received a cut in pay in 1999 that had continued for approxi-
mately 16 months, and there was no indication that his pay
would increase in the future. This court stated that “[w]hile
using income averaging to increase support is generally bene-
ficial to minor children, this method should only be used when
the facts support it.” State on behalf of Hannon v. Rosenberg,
11 Neb. App. at 524, 654 N.W.2d at 758. We concluded that
   Decisions of the Nebraska Court of Appeals
924	22 NEBRASKA APPELLATE REPORTS



the facts of the case did not support the use of income averag-
ing and that the district court had erred in using the father’s
average income for the 3 years prior to trial in calculating
child support.
   We conclude that the trial court in this case did not abuse
its discretion in using Monica’s monthly earnings at the time
of trial for child support purposes, rather than a 3-year average
of her earnings.

Random Drug Testing Requirement.
   Finally, Bryan argues that the trial court erred in requiring
him to submit to random hair follicle drug testing. The require-
ment specifically provides as follows:
      With notice from [Monica] to [Bryan], which notice
      shall be sent via email, [Bryan] shall, within 24 hours
      of that notice being provided, submit to a hair follicle
      drug test or a urinalysis screen to test for drugs. In the
      notice, [Monica] shall dictate whether the test is to be a
      hair follicle test or a UA screen and will also set forth
      the specific facility at which [Bryan] shall have the test
      performed. [Monica] shall be responsible for drug test-
      ing costs. [Monica] shall be entitled to require [Bryan] to
      submit to drug testing no more than four times per year.
      If [Bryan] does not test positive for illegal drugs for one
      year consecutive period, the requirements of this drug
      testing provision shall terminate and this provision shall
      no longer be in effect.
   This court recently addressed a similar issue in Barth v.
Barth, 22 Neb. App. 241, 851 N.W.2d 104 (2014). In that case,
the trial court’s order gave the custodial parent the discretion
to withhold overnight visitation with the noncustodial par-
ent if the noncustodial parent cohabits with someone of the
opposite sex. We held that a custodial parent cannot be granted
the authority to determine the visitation privileges of the non-
custodial parent, because setting the time, manner, and extent
of visitation is solely the duty of the court. We found that the
trial court abused its discretion in allowing the custodial par-
ent to determine whether the noncustodial parent is entitled to
         Decisions of the Nebraska Court of Appeals
	           STATE ON BEHALF OF ANDREW D. v. BRYAN B.	925
	                     Cite as 22 Neb. App. 914

overnight visits, as such provision was an unlawful delegation
of the trial court’s duty.
    The present case is similar to Barth v. Barth, supra, in that
the drug testing provision gives Monica, the custodial parent,
the power to dictate when, where, and how the provision will
be carried out. However, we determine that the Barth case
is distinguishable from the present case because in Barth,
the provision at issue involved visitation, which is solely the
court’s duty to determine. The random drug testing provision
in the present case is not tied to visitation privileges. In addi-
tion, the present case is different from Barth in that Bryan
agreed to the provision in the temporary order and was not
opposed to a drug testing provision at trial. Monica testified
that Bryan had agreed to the drug testing provision in the
temporary order. Bryan also indicated that he agreed based
on his attorney’s recommendation to do so. Bryan also testi-
fied that he did not object to the drug testing provision in and
of itself, but was opposed to the hair follicle method of drug
testing. Bryan testified that he told Monica he would take a
urinalysis. Similarly, on appeal, Bryan’s assignment of error
only raises issue with the court’s requiring him to submit to
hair follicle drug testing. In his brief, he states that “Bryan at
no point in this matter had an issue with random drug testing,
it was simply the method of the same.” Brief for appellant
at 26.
   We conclude that the trial court did not abuse its discre-
tion in requiring Bryan to submit to random drug testing
at Monica’s request. However, we modify the provision to
provide that when Monica requests a drug test, it should be
Bryan’s choice whether to submit to a hair follicle drug test or
a urinalysis.

                       CONCLUSION
   We conclude that the trial court erred in granting Monica
a health insurance deduction in the child support calculation
without any evidence of the cost of such insurance. We also
conclude that the trial court did not err in determining the
incomes of Bryan and Monica for child support purposes.
   Decisions of the Nebraska Court of Appeals
926	22 NEBRASKA APPELLATE REPORTS



Accordingly, the matter of child support is reversed and
remanded to the trial court with directions to recalculate child
support without granting Monica a health insurance deduc-
tion for Andrew. Further, we determine that the trial court did
not err in requiring Bryan to submit to random drug testing at
Monica’s request, but we modify the provision to provide that
it should be Bryan’s choice whether to submit to a hair follicle
drug test or a urinalysis.
	Affirmed in part as modified, and in part
	                   reversed and remanded with directions.




                     State of Nebraska, appellee, v.
                      Joshua D. Rohde, appellant.
                                    ___ N.W.2d ___

                        Filed May 26, 2015.      No. A-14-379.

 1.	 Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case
     from the county court, the district court acts as an intermediate court of appeals,
     and its review is limited to an examination of the record for error or abuse
     of discretion.
 2.	 Courts: Appeal and Error. Both the district court and a higher appellate
     court generally review appeals from the county court for error appearing on
     the record.
 3.	 Judgments: Appeal and Error. When reviewing a judgment for errors appearing
     on the record, an appellate court’s inquiry is whether the decision conforms to
     the law, is supported by competent evidence, and is neither arbitrary, capricious,
     nor unreasonable.
 4.	 Criminal Law: Courts: Appeal and Error. When deciding appeals from crimi-
     nal convictions in county court, an appellate court applies the same standards
     of review that it applies to decide appeals from criminal convictions in dis-
     trict court.
 5.	 Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
     Error. In reviewing a trial court’s ruling on a motion to suppress based on a
     claimed violation of the Fourth Amendment, an appellate court applies a two-part
     standard of review. Regarding historical facts, an appellate court reviews the trial
     court’s findings for clear error, but whether those facts trigger or violate Fourth
     Amendment protections is a question of law that an appellate court reviews inde-
     pendently of the trial court’s determination.
 6.	 Constitutional Law: Investigative Stops: Appeal and Error. An appellate court
     reviews de novo the determination that the community caretaking exception to
     the Fourth Amendment applied.
