Schlothauer v. Schlothauer , 184 Neb. 750 ( 1969 )

171 N.W.2d 786 (1969) 184 Neb. 750

Samuel SCHLOTHAUER, Appellee,
v.
Helen SCHLOTHAUER, Appellant.

No. 37279.

Supreme Court of Nebraska.

November 7, 1969.

R. L. Gilbert, Morrill, for appellant.

No appearance for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

SMITH, Justice.

The district court decreased the amount of plaintiff's monthly obligation to support each of two children from $150 to $112.50. Defendant has appealed.

Appearing personally with counsel in open court, the parties had stipulated for property settlement and for support of each child at $150 a month. The court approved the stipulation on May 29, 1968. Plaintiff on November 8, 1968, petitioned to modify the judgment on grounds of changed circumstances which included his loss of income and defendant's gainful employment. The modification order was rendered in January 1969.

A cooperative association had employed plaintiff to sell bulk petroleum products on commission, plaintiff to furnish the truck. His commissions less business expenses totaled $12,269 in 1965 and $12,481 in 1966. Approximate totals, apart from a truck repair item, were $10,889 in 1967 and $10,500 in 1968.

The truck, a 1963 model with mileage of 500,000 in January 1969, had been repaired in 1967 and 1968 at a cost of $1,345.08. On June 14, 1968, plaintiff paid the repair bill which we excluded from the above statement of earnings.

Defendant, not gainfully employed in May 1968, subsequently obtained a part-time job which paid $15 a week.

A child support judgment in respect to unaccrued installments may be modified in the children's best interest or upon change in the parties' circumstances. S. 42-312, R.R.S.1943. Modification because of changed circumstances of the parties ordinarily should rest only upon facts which have occurred since rendition of the judgment; res judicata applies. A proceeding to modify a judgment for child support is not a retrial of the original case or a review of the equities of the original decree. Walters v. Walters, 177 Neb. 731, 131 N.W.2d 166 (1964).

The order decreasing the amount of child support is reversed and the cause remanded with directions that plaintiff's petition for modification be dismissed. Defendant is allowed $250 for services of her attorney in this court.

Reversed and remanded with directions.