Schwartz v. Schwartz ( 2015 )

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declaratory judgments by adding a clause at the beginning of
the sentence, such that the modified sentence states, “Except
for a change in circumstances arising after the date of this
judgment, this Farm Lease Agreement is valid and enforceable
through 2015.” As so modified, we affirm the judgments of the
district court.
Affirmed as modified.
Paul M. Schwarz, appellant, v. K risti L. Schwarz,
now known as K risti L. H endrickson, appellee.
___ N.W.2d ___
Filed January 23, 2015. No. S-14-122.
1. Modification of Decree: Child Support. Modification of child support is
entrusted to the discretion of the trial court.
2. Modification of Decree: Child Support: Appeal and Error. An appellate court
reviews proceedings for modification of child support de novo on the record and
will affirm the judgment of the trial court absent an abuse of discretion.
3. Judges: Words and Phrases. A judicial abuse of discretion exists when reasons
or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted for disposition.
4. Child Support: Rules of the Supreme Court. Interpretation of the Nebraska
Child Support Guidelines presents a question of law.
5. Judgments: Appeal and Error. An appellate court resolves questions of law
independently of the lower court’s conclusion.
6. Courts: Child Support. The trial court has discretion to choose whether and
how to calculate a deduction for subsequent children.
7. Child Support. No precise mathematical formula exists for calculating child
support when subsequent children are involved, but the court must perform
the calculation in a manner that does not benefit one family at the expense of
the other.
8. Modification of Decree: Child Support: Proof. The party requesting a deduc-
tion for his or her obligation to support subsequent children bears the burden of
providing evidence of the obligation, including the income of the other parent of
the child.
9. Child Support: Appeal and Error. A party may raise two separate issues
on appeal when a trial court allows a deduction for the obligor’s support of
subsequent children: (1) whether the court abused its discretion by allowing
a deduction and (2) whether the court’s method of calculation was an abuse
of discretion.
Nebraska Advance Sheets
SCHWARZ v. SCHWARZ 961
Cite as 289 Neb. 960
10. Child Support: Rules of the Supreme Court. Under the Nebraska Child
Support Guidelines, only the cost of health insurance that is actually ordered
by the court must be added to the monthly support and only the parent who is
ordered to provide coverage for the child is entitled to a credit.
Appeal from the District Court for Dawson County: Donald
E. Rowlands, Judge. Reversed and remanded with directions.
Derek L. Mitchell for appellant.
Bradley D. Holbrook and Nicholas A. Buda, of Jacobsen,
Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Connolly, J.
SUMMARY
The district court dissolved the marriage of Paul M.
Schwarz and Kristi L. Schwarz, now known as Kristi L.
Hendrickson, and gave Paul custody of their minor child
Paul Caleb Schwarz (Caleb). Paul later moved to modify the
amount of child support Kristi paid, alleging that the parties’
income had materially increased. The court increased Kristi’s
support obligation after applying a deduction for her subse-
quent child and a credit for the amount she paid for health
insurance that covered Caleb. On appeal, Paul argues that
Kristi did not present sufficient evidence to allow a deduc-
tion for her subsequent child and that she should not have
received a credit for health insurance. We affirm the deduc-
tion for Kristi’s subsequent child but conclude that the court
abused its discretion by giving Kristi a credit for the cost of
health insurance.
BACKGROUND
In 2001, the court entered a decree dissolving the marriage
of Kristi and Paul. The court gave custody of their minor
child Caleb to Paul in 2006 and ordered Kristi to pay child
support. The court ordered Paul to maintain health insurance
for the benefit of Caleb. The court allocated nonreimbursed
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necessary health care costs for Caleb in excess of $480 per
year to Kristi and Paul in proportion to their contributions to
Caleb’s support. In 2011, the court reduced Kristi’s support
obligation for Caleb to $250 per month.
Paul moved to modify the decree in 2013, alleging that
the parties’ income had changed and that the change would
increase the support paid by Kristi by more than 10 percent.
Kristi denied that a material change of income had occurred
and affirmatively alleged that she had an “after born child”
who may be raised as a defense to Paul’s motion to increase
child support.
At trial, Paul testified about his employment and the amount
of his income. Paul also testified that he maintains health insur-
ance that covers Caleb through his employer.
Like Paul, Kristi produced evidence of her current employ-
ment and income. Kristi testified that she is married to
Dan Hendrickson and that they have a daughter, Makayla
Hendrickson. Kristi testified about Dan’s employment and
income, and the court received a copy of Dan’s direct deposit
receipt from his employer. Kristi testified that she provides
health and dental insurance coverage for her “family” through
her employer. Dan, Makayla, and Caleb are covered by the
policy, in addition to Kristi. Kristi pays about $342 more
per month for “Employee + Family” coverage compared to
“Employee Only” coverage.
The court concluded that there was a material change of cir-
cumstances and increased Kristi’s monthly support obligation
for Caleb to $293. The court “incorporated . . . by reference”
the worksheet 1 prepared by Kristi. The worksheet gave Kristi
a $297 deduction for “[c]hild regular support for other chil-
dren,” which the court stated was in accordance with the “use
[of] an after-born child as a partial defense to a request to raise
child support.” To the amount of Kristi and Paul’s monthly
support for Caleb, the court added $342 under Kristi’s column
for “[h]ealth insurance premium . . . as ordered.” The court
then gave Kristi a $342 credit for “health premium actually
paid.” After application of this credit, Kristi’s final share of the
obligation was $293.
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ASSIGNMENTS OF ERROR
Paul assigns that the district court erred by giving Kristi (1)
a deduction for a subsequent child and (2) a credit for the cost
of health insurance premiums.
STANDARD OF REVIEW
[1–3] Modification of child support is entrusted to the dis-
cretion of the trial court.1 An appellate court reviews proceed-
ings for modification of child support de novo on the record
and will affirm the judgment of the trial court absent an abuse
of discretion.2 A judicial abuse of discretion exists when rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just
results in matters submitted for disposition.3
[4,5] Interpretation of the Nebraska Child Support Guidelines
presents a question of law.4 We resolve questions of law inde-
pendently of the lower court’s conclusion.5
ANALYSIS
Subsequent Child
Paul argues that Kristi did not present sufficient evidence
to support a deduction for Makayla, her subsequent child.
Specifically, Paul contends that because Kristi does not incur
a “separate insurance expense” for Makayla and because
Kristi’s current husband, Dan, also has an income used to
support Makayla, the evidence did not show that Makayla
was an “additional financial burden to Kristi.”6 Kristi argues
that there was sufficient evidence of her obligation to sup-
port Makayla.
1
Rutherford v. Rutherford, 277 Neb. 301, 761 N.W.2d 922 (2009) (per
curiam).
2
Id.
3
Id.
4
Mamot v. Mamot, 283 Neb. 659, 813 N.W.2d 440 (2012).
5
See id.
6
Brief for appellant at 6.
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In some circumstances, the Nebraska Child Support
Guidelines permit a court to deduct a parent’s obligation to
support subsequent children from his or her monthly income.
Neb. Ct. R. § 4-205(E) provides that “[s]ubject to § 4-220,
credit may be given for biological or adopted children for
whom the obligor provides regular support.” The applicability
of the deduction under § 4-205(E) is limited by Neb. Ct. R.
§ 4-220:
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.
So, in cases seeking an upward modification of an existing
support award, the guidelines allow the obligor a deduction for
her obligation to support a subsequent child.
[6–8] The trial court has discretion to choose whether and
how to calculate a deduction for subsequent children.7 When
the court decides to allow a deduction, the calculation is left
to its discretion so long as it considers the obligations to
both families and the income of the subsequent child’s other
parent.8 No precise mathematical formula exists for calculat-
ing child support when subsequent children are involved, but
the court must perform the calculation in a manner that does
not benefit one family at the expense of the other.9 The party
requesting a deduction for his or her obligation to support
subsequent children bears the burden of providing evidence
of the obligation, including the income of the other parent of
the child.10
7
See Wilkins v. Wilkins, 269 Neb. 937, 697 N.W.2d 280 (2005).
8
See, id.; Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005).
9
See, Wilkins v. Wilkins, supra note 7; Emery v. Moffett, supra note 8.
10
See, Wilkins v. Wilkins, supra note 7; Brooks v. Brooks, 261 Neb. 289, 622
N.W.2d 670 (2001). See, also, Crawford v. Crawford, 263 Neb. 37, 638
N.W.2d 505 (2002).
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[9] A party may raise two separate issues on appeal when
a trial court allows a deduction for the obligor’s support of
subsequent children: (1) whether the court abused its discretion
by allowing a deduction and (2) whether the court’s method
of calculation was an abuse of discretion.11 Here, Paul has
specifically assigned and argued only the first issue, contend-
ing that Kristi “did not meet her burden to use the after-born
child [Makayla] as a defense to the increase in child support
sought by Paul.”12 Paul does not specifically argue that the
method the court used to calculate the amount of the deduction
was an abuse of discretion, and we therefore do not address
this issue.13
We conclude that the trial court did not abuse its discretion
by allowing Kristi a deduction for her obligation to support
Makayla. Kristi produced evidence of her obligation to support
a subsequent child, her income, and the income of the other
parent of the subsequent child. Using this information, Kristi
prepared worksheet 1, calculating her and Dan’s respective
shares of their support obligation for Makayla. Kristi sought a
deduction in response to Paul’s application to upwardly modify
an existing support award, which is the application contem-
plated by §§ 4-205(E) and 4-220. Kristi presented sufficient
evidence to warrant a deduction for her support obligation
to Makayla.14
Health Insurance
Paul argues that the court erred by giving Kristi a credit for
premiums she paid for health insurance that covered Caleb,
because the addition or deletion of Caleb’s coverage to or from
Kristi’s plan would not affect the amount of her premium.
Additionally, Paul notes that the court did not order Kristi to
provide health insurance coverage for Caleb. Kristi responds
11
See, Wilkins v. Wilkins, supra note 7; Brooks v. Brooks, supra note 10.
12
Brief for appellant at 6.
13
See deNourie & Yost Homes v. Frost, ante p. 136, 854 N.W.2d 298 (2014).
14
See Wilkins v. Wilkins, supra note 7. See, also, Brooks v. Brooks, supra
note 10.
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that it was in Caleb’s best interests to have secondary health
insurance coverage.
The guidelines require a child support order to address
how the parents will provide for the child’s health care.15 The
“[c]hildren’s health care needs are to be met by requiring either
parent to provide health insurance as required by state law.”16
The guidelines require the “increased cost to the parent for
health insurance” to be added to the monthly support in work-
sheet 1 and permit the “parent paying the premium” a credit
against his or her share of the monthly support.17
[10] Whereas here, Paul was ordered to pay health insur-
ance premiums in the initial decree, we conclude that the
court abused its discretion by allowing Kristi a credit under
§ 4-215(A) for the cost of health insurance coverage for Caleb
because there is no evidence that the court ordered Kristi to
provide coverage. In 2006, the court ordered Paul to main-
tain coverage for Caleb, and so far as the record shows, this
requirement was never altered. Even though Kristi was not
ordered to provide coverage for Caleb, the court added $342
to the monthly support total in the worksheet 1 as “[h]ealth
insurance premium . . . as ordered,” and then gave Kristi a
credit for the same amount. Under § 4-215(A), only the cost of
health insurance that is actually ordered by the court must be
added to the monthly support in worksheet 1 and only the par-
ent who is ordered to provide coverage for the child is entitled
to a credit.18
CONCLUSION
The court did not abuse its discretion by allowing Kristi a
deduction for her support obligation for a subsequent child.
But the court did abuse its discretion by adding the amount
that Kristi pays for family health insurance coverage to the
15
Neb. Ct. R. § 4-215 (rev. 2011). See, also, Neb. Rev. Stat. § 42-369(2)(a)
(Cum. Supp. 2014); Bussell v. Bussell, 21 Neb. Ct. App. 280, 837 N.W.2d 840
(2013).
16
§ 4-215(B).
17
§ 4-215(A).
18
See McDonald v. McDonald, 21 Neb. Ct. App. 535, 840 N.W.2d 573 (2013).
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monthly support total in worksheet 1 and giving Kristi a credit
for the same amount. We reverse the judgment of the trial
court and remand the cause for a calculation of child support
consistent with this opinion.
R eversed and remanded with directions.