Cronin v. Cronin , 31 Neb. Ct. App. 38 ( 2022 )

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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
CRONIN v. CRONIN
Cite as 31 Neb. App. 38Jamie R. Cronin, now known as Jamie R.
Maskil-Cronin, appellant and cross-appellee,
v. Keith P. Cronin, appellee
and cross-appellant.
___ N.W.2d ___
Filed May 24, 2022. No. A-21-310.
1. Modification of Decree: Appeal and Error. Modification of a dis-
solution decree is a matter entrusted to the discretion of the trial court,
whose order is reviewed de novo on the record, and will be affirmed
absent an abuse of discretion by the trial court.
2. Evidence: Appeal and Error. 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.
3. Child Support: Rules of the Supreme Court. The main principle
behind the Nebraska Child Support Guidelines is to recognize the equal
duty of both parents to contribute to the support of their children in pro-
portion to their respective net incomes.
4. ____: ____. When determining total income under the Nebraska Child
Support Guidelines, all income from all sources is to be included except
for those incomes specifically excluded.
5. Child Support: Rules of the Supreme Court: Evidence: Presumptions.
When determining total income under the Nebraska Child Support
Guidelines, a court should not include income that is speculative in
nature and over which the party has little or no control. But when the
evidence shows the party earns or can reasonably expect to earn a cer-
tain amount of income on a regular basis, a rebuttable presumption of
including such income arises.
6. Child Support. As a general matter, the parties’ current earnings are to
be used in calculating child support.
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CRONIN v. CRONIN
Cite as 31 Neb. App. 387. Child Support: Taxes. The choice of tax filing status when running a
child support calculation should correlate with a party’s actual tax liabil-
ity as closely as possible.
8. Modification of Decree: Child Support: Proof. A party seeking to
modify a child support order must show a material change in circum-
stances that (1) occurred subsequent to the entry of the original decree
or previous modification and (2) was not contemplated when the decree
was entered.
9. Modification of Decree: Child Support. Among the factors to be con-
sidered 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 sustaining a reduction in
income, and whether the change is temporary or permanent.
10. Modification of Decree: Child Support: Rules of the Supreme Court.
When a prior order of child support constitutes a deviation from the
Nebraska Child Support Guidelines, a party may not seek modification
of that order solely on the basis that the guidelines would result in a dif-
ferent child support amount.
11. Modification of Decree: Child Support. In determining whether to
order a retroactive modification of child support, a court must consider
the parties’ status, character, situation, and attendant circumstances.
12. Modification of Decree: Child Support: Time. Absent equities to the
contrary, modification of a child support order should be applied retro­
actively to the first day of the month following the filing day of the
application for modification.
13. Modification of Decree: Time: Appeal and Error. The initial deter-
mination regarding the retroactive application of a modification order is
entrusted to the discretion of the court and will be affirmed on appeal
absent an abuse of discretion.
Appeal from the District Court for Sarpy County: Stefanie
A. Martinez, Judge. Affirmed as modified.
David Pontier, of Koenig | Dunne, P.C., L.L.O., for appellant.
Virginia A. Albers, of Slowiaczek Albers, P.C., L.L.O., for
appellee.
Pirtle, Chief Judge, and Riedmann and Bishop, Judges.
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CRONIN v. CRONIN
Cite as 31 Neb. App. 38Bishop, Judge.
I. INTRODUCTION
Jamie R. Cronin, now known as Jamie R. Maskil-Cronin,
appeals from an order of the Sarpy County District Court
modifying the decree dissolving her marriage to Keith R.
Cronin. She claims multiple errors relating to the district
court’s modification of Keith’s child support obligation; Keith
cross-appeals the court’s determination of Jamie’s income. We
affirm the order as modified.
II. BACKGROUND
1. December 2011 Decree
Jamie and Keith were married on September 29, 2001. Two
sons were born during the marriage: Nathan Cronin, born in
2002, and Brock Cronin, born in 2006. The marriage was dis-
solved by decree on December 1, 2011. The decree adopted
and incorporated the parenting plan agreed upon by Jamie and
Keith, which gave the parties joint legal and physical custody
of the children.
As relevant to this appeal, the decree divided the financial
obligations regarding the minor children between the parties.
The decree ordered:
[Jamie] shall pay forty percent (40%) and [Keith] shall
pay sixty percent (60%) of the minor children’s extra-
curricular and sports-related activities, including but not
limited to, Select and Power sports, baseball, football,
basketball, swimming, and other non-related school activ-
ities the minor children participate in by mutual agree-
ment of the parties.
The decree also required Keith to maintain health insurance
for both children. The children’s “co-pays and uninsured
medical, dental, orthodontia, and ophthalmology expenses,”
as well as “child care expenses incurred for the minor chil-
dren . . . due to employment of either parent or to allow either
parent to obtain training or education necessary to obtain
a job or enhance earning potential,” were to be divided in
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CRONIN v. CRONIN
Cite as 31 Neb. App. 38the same fashion as the children’s sports and extracurricular
expenses. The decree further ordered that Jamie “shall pay for
all other incidental expenses of the minor children.” We also
note that the “Explanation of Child Support Calculations”
attached to the decree states that Jamie would “pay all direct
expenses of the children with the exception of sports.”
The decree ordered Keith to pay child support to Jamie
for the two minor children. At the time of the decree, Keith’s
income included annuity payments scheduled to end in June
2013. He was also paying $450 per month in child support
for a child from a previous marriage, and the “Explanation of
Child Support Calculations” indicated that this child would be
emancipated in April 2016. Three separate joint custody child
support calculations were attached to the decree. The first cal-
culated Keith’s obligation under the Nebraska Child Support
Guidelines to be $648.74 per month for two children, and
this calculation accounted for Keith’s annuity income and his
prior child support obligation. The second calculated Keith’s
child support to be $322.76 per month for two children while
accounting only for his prior child support obligation. The
third calculated Keith’s child support obligation to be $394.72
per month for two children without accounting for his annuity
income and prior child support obligation.
The district court found that “[a]n upward deviation from
the Nebraska Child Support Guidelines [was] warranted based
on the expense sharing between the parties and child support
should be increased as a result. . . .” The decree required Keith
to pay Jamie $1,350 per month in child support until June 1,
2013, after which Keith’s child support obligation would be
reduced to $1,000 per month. Keith’s child support payments
were scheduled to continue at this monthly rate until “one of
the [parties’] minor children reaches the age of majority, dies,
marries, [or] becomes emancipated, or until further order of
this Court,” at which time Keith’s child support obligation
would be further reduced to $800 per month.
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Cite as 31 Neb. App. 382. June 2020 Complaint for Modification
On June 5, 2020, Keith filed an “Application to Modify
Decree of Dissolution of Marriage” in the Sarpy County
District Court. He alleged there had been a material change in
circumstances since the entry of the decree due to changes in
the parties’ respective incomes that justified modification of his
child support obligation and the allocation of expenses for the
parties’ children.
Jamie filed an “Answer and Counterclaim” on July 22, 2020,
denying the material allegations of Keith’s application. She
alleged in her counterclaim that (1) Keith had “routinely failed
to exercise his court-ordered parenting time,” (2) his work-
related travel “prevents him from exercising his court-ordered
parenting time,” and (3) his new residence “distance[d] the
minor children from their school and friends.” Jamie requested
the district court to grant her primary physical custody of the
children and recalculate Keith’s child support obligation. Jamie
thereafter filed an “Answer and Amended Counterclaim” on
December 3 pursuant to a stipulation between the parties. In
her amended counterclaim, Jamie again asserted the first two
allegations initially made in her counterclaim, but dropped the
third one. She further alleged that the “parties’ employment
and incomes have changed” and requested the court to increase
Keith’s child support obligation.
Trial took place on March 22, 2021. Each party testified,
and multiple exhibits were received regarding the parties’
employment and financial circumstances. The testimony and
exhibits will be discussed as relevant to the errors assigned in
our analysis below.
On April 9, 2021, the district court entered an order modi-
fying the parties’ decree. The court found that both Jamie and
Keith had each proved a material change in circumstances
to warrant modification of child support. With respect to
Keith, the court determined that Keith had proved “there has
been a change in financial circumstances which [has] lasted
three months and can reasonably be expected to last for an
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CRONIN v. CRONIN
Cite as 31 Neb. App. 38additional six months and application of the child support
guidelines does result in a variation by ten percent or more
from the original child support obligation.” Regarding the par-
ties’ employment and income, the court observed:
4. [Keith’s] income has decreased due to a change in
position at Union Pacific Railroad and the change in the
distribution of retention shares. The Court finds that, to
arrive at his current income, an average of the last five
years is appropriate. Based on the evidence, [Keith’s]
current monthly income is $16,985. [Keith] should also
be given credit of $248 for health insurance paid per
month for the children. As to the filing status, although
there was testimony that [Keith] has remarried, there
was no evidence as to [what] his current filing status is
with his new spouse. As such, the filing status should
be single.
5. [Jamie] is currently unemployed. [She] was previ-
ously employed for approximately 20 years at Union
Pacific. Upon termination, [Jamie] was given a severance
package of $130,000. The Court finds that the $130,000
should not be counted as income for purposes of child
support because it was a one-time payment. The Court
also finds that [she] should be assessed her last year’s
income while employed at Union Pacific. This was an
otherwise steady income and there was no evidence that
her earning capacity has decreased. Therefore, [Jamie’s]
current monthly income should be assessed at $9,139 and
her tax filing status should be “head of household.”
The district court also concluded that the “upward devia-
tion [in the December 2011 decree] is no longer necessary and
should be removed,” noting that incidental expenses allocated
to Jamie under the decree had “been less than $600 per month
for the last few years” and that the children’s “sport and activ-
ity expenses will significantly decrease” as a result of the
children entering high school. The court also observed that
in addition to child support and his share of other expenses,
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CRONIN v. CRONIN
Cite as 31 Neb. App. 38Keith had been paying “approximately $440 per month” for
his sons’ cell phones and the elder son’s car. The court further
found that Jamie has, “at most, . . . had ten extra days per year
with the children” due to Keith’s business travel, although
it noted that Keith was “able to be flexible” with his work-
related travel.
After setting forth its factual findings, the district court
ordered Keith to pay $451 per month in child support for two
children retroactive to July 1, 2020. The order provided that
this obligation would be reduced to $291 per month when
only one of the parties’ children would be eligible to receive
child support. The court also modified the parties’ cost-sharing
arrangement, ordering Keith to pay 63 percent of “[a]ll rea-
sonable and necessary direct expenditures made solely for the
minor children such as clothing and extracurricular activities”
while Jamie would pay the remaining 37 percent, and the order
further required that “[a]ny expense over $100 shall be agreed
to in advance.” The court denied any other relief not expressly
addressed in the order.
Jamie appeals and Keith cross-appeals the district court’s
order.
III. ASSIGNMENTS OF ERROR
Jamie claims on appeal that the district court abused its
discretion in (1) calculating Keith’s modified child support
obligation based on inaccurate findings concerning Keith’s
income, marital status, child tax credits and exemptions, and
annual overnights with the children; (2) finding that a material
change in circumstances existed that warranted modification of
Keith’s child support obligation; and (3) setting Keith’s modi-
fied child support obligation retroactive to July 1, 2020, with-
out also retro­actively modifying Jamie’s obligations under the
December 2011 decree to the same date.
On cross-appeal, Keith claims the district court incorrectly
imputed income to Jamie and should have adopted his pro-
posed child support calculation.
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Nebraska Court of Appeals Advance Sheets
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CRONIN v. CRONIN
Cite as 31 Neb. App. 38IV. STANDARD OF REVIEW
[1,2] Modification of a dissolution decree is a matter
entrusted to the discretion of the trial court, whose order is
reviewed de novo on the record, and will be affirmed absent an
abuse of discretion by the trial court. Tilson v. Tilson, 307 Neb.
275, 948 N.W.2d 768 (2020). When evidence is in conflict, 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. Id.V. ANALYSIS
1. Calculation of Parties’ Incomes
We first note that Jamie and Keith each argue, on appeal
and cross-appeal respectively, that the district court erred in
calculating the other’s income for purposes of child support.
The court found a material change in circumstances stemming
in part from changes in each party’s income and employment
that would result in a variation by 10 percent or more from
the original child support obligation. Accordingly, we examine
the court’s calculation of the parties’ incomes as a threshold
matter before we determine whether a material change in
circumstances has occurred since the entry of the December
2011 decree.
(a) Keith’s Income
(i) Evidence at Trial
Keith testified that his employment with Union Pacific
Railroad (Union Pacific) has continued since the entry of the
December 2011 decree. However, his original position was
“eliminated” in October 2018 and he was able to find a new
position with Union Pacific shortly thereafter. Keith explained
that his compensation primarily entailed three major pieces: an
“annual-based salary,” a “performance-based” bonus, and an
annual stock award of “retention shares” automatically placed
in an “E-TRADE” account provided to Keith. According to
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CRONIN v. CRONIN
Cite as 31 Neb. App. 38Keith’s testimony, these shares would vest after 4 years so
long as the recipient remained employed by Union Pacific.
Upon vesting, “a certain amount [of shares] are sold to cover
the taxes for those shares,” and Keith could then either sell the
remaining shares immediately or hold them as an investment.
In either case, Keith affirmed that the income reported on his
annual W-2 “reflect[ed] the total vesting of retention shares in
any given year, [including] those that were sold and those that
[he] would be retaining.”
Keith testified that the retention shares were a “significant
aspect” of his employment compensation and that the number
of shares he received annually had been decreasing over several
years. According to Keith’s “E-TRADE” account statements
received at the modification hearing, he received 550 retention
shares in 2014, 546 shares in 2015, 385 shares in 2016, 280
shares in 2017, 241 shares in 2018, 75 shares in 2019, and 97
shares in 2020. As of December 2020, Keith’s retention shares
from 2017 through 2020 had a market price of $208.22 per
share and were worth approximately $144,296 in total. Keith
further received 34 shares in February 2021, and these shares
were valued at approximately $7,000 upon receipt.
The record includes copies of various financial documents
regarding Keith’s income, including his tax returns from 2018
and 2019 filed jointly with his current wife, his W-2 forms
from 2017 through 2020, and his compensation statements from
Union Pacific. According to his W-2 forms, which included the
value of the retention shares that vested each year, Keith’s total
income was $249,222 in 2017; $249,386 in 2018; $253,271 in
2019; and $226,919 in 2020. We also note that Keith reported
$66,032.82 in proceeds from the short-term sale of 387 shares
of Union Pacific stock on his 2019 tax return and $41,259.74
in proceeds from the short-term sale of 321 shares of Union
Pacific stock on his 2018 tax return. His 2018 tax return also
reports $62,514.57 in proceeds from the long-term sale of 487
shares of Union Pacific stock.
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Cite as 31 Neb. App. 38Regarding his 2021 income, Keith testified on cross-­
examination that his “base salary” for 2021 was $149,556 and
that he would receive a bonus of $24,000. He further affirmed
that he had received 280 retention shares in February 2017 and
that these shares had a combined value of $55,608 when they
vested on February 2, 2021. Added together, these amounts
total approximately $229,164.
(ii) Calculation of Keith’s Income
Jamie and Keith each offered an aid to the district court
in calculating Keith’s child support, and both exhibits were
received by the court accordingly. Jamie offered exhibit 26, a
child support calculation worksheet listing Keith’s income as
$19,097 per month, or $229,164 annually.
Keith offered exhibit 16 as a summary of his current income.
Exhibit 16 added Keith’s 2021 salary and bonus together for a
total of $173,556 representing his cash compensation. Exhibit
16 further combined the values of Keith’s retention shares
from 2017 through 2021 for a 5-year total value of $151,296
based on the shares’ values set forth in Keith’s December
2020 “E-TRADE” statement and 2020 compensation state-
ment. This amount was then divided over 5 years for an aver-
age annual retention share value of $30,259. After combining
this amount with Keith’s 2021 cash compensation, exhibit 16
estimated Keith’s income to be $203,815 per year, or $16,985
per month.
In its order modifying child support, the district court found
in pertinent part that Keith’s “income has decreased due to
a change in position at Union Pacific . . . and the change in
the distribution of retention shares” and that “to arrive at his
current income, an average of the last five years is appropri-
ate.” The court determined Keith’s current monthly income to
be $16,985.
Jamie claims that the district court erred in calculating
Keith’s income. She asserts the court “explicitly found that
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CRONIN v. CRONIN
Cite as 31 Neb. App. 38the average of Keith’s last five years of gross income was
the appropriate method to determine his total income.” Brief
for appellant at 18. However, she notes that the court instead
“attempted to average [Keith’s] 2021 income with his projected
future incomes for 2022, 2023, and 2024.” Id. at 20. She argues
that the value of Keith’s retention shares that will vest after
2021 is “unknowable,” and she notes that although Keith testi-
fied as to the reduced number of shares he received each year,
the value of his shares has “nearly doubled in the three years
leading up to trial.” Id.
[3-5] The main principle behind the Nebraska Child Support
Guidelines is to recognize the equal duty of both parents to
contribute to the support of their children in proportion to
their respective net incomes. Hotz v. Hotz, 301 Neb. 102, 917
N.W.2d 467 (2018). The Nebraska Supreme Court has stated
that under the Nebraska Child Support Guidelines, “‘all income
from all sources is to be included except for those incomes
specifically excluded.’” Hotz v. Hotz, 301 Neb. at 108, 917
N.W.2d at 474. However, the Supreme Court has cautioned that
a party’s monthly income for child support purposes should
not include amounts that are “‘“speculative in nature and over
which the [party] has little or no control.”’” See Vanderveer
v. Vanderveer, 310 Neb. 196, 218, 964 N.W.2d 694, 710-11
(2021). See, also, Noonan v. Noonan, 261 Neb. 552, 624
N.W.2d 314 (2001). “But when the evidence shows the party
‘earns or can reasonably expect to earn a certain amount of
income on a regular basis, a rebuttable presumption of includ-
ing such income arises under the Guidelines.’” Vanderveer v.
Vanderveer, 310 Neb. at 218, 964 N.W.2d at 711.
Neither party disputes that the calculation of Keith’s income
should include some amount attributed to the retention shares
that he has received and will continue to receive as annual
compensation. The evidence as described above indicates that
Keith was regularly selling some amount of his retention
shares immediately after they vested, and we agree that it
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Cite as 31 Neb. App. 38was appropriate to include some amount attributable to his
retention share awards in the computation of his income
for child support purposes. See Vanderveer v. Vanderveer,
supra (reversing district court’s exclusion of father’s proceeds
from cashed restricted stock units from calculation of father’s
income for child support purposes; father received stock units
as part of his employment compensation and regularly cashed
vested stock units to generate significant income over several
prior years).
Although not expressly stated in its modification order, it
is evident the district court relied on Keith’s calculation of his
income as set forth in exhibit 16. However, we note that exhibit
16 calculated the value of Keith’s retention shares from 2017
through 2020 based on the December 31, 2020, market price of
Union Pacific stock, despite the fact that these shares had not
yet vested at that time. While a flexible approach is used to cal-
culate parents’ respective incomes for child support purposes,
such calculations “‘should not be based on income that is
“speculative in nature and over which the employee has little or
no control.”’” Vanderveer v. Vanderveer, 310 Neb. at 218, 964
N.W.2d at 710-11. Attempting to average the value of Keith’s
unvested retention shares in this manner necessarily invites the
speculation cautioned against by the Nebraska Supreme Court,
as those shares may vest with a lower, equal, or higher value
than Union Pacific’s stock market price on December 31, 2020.
Accordingly, we conclude the district court abused its discre-
tion in calculating Keith’s monthly income to the extent that
this calculation averaged the value of Keith’s unvested reten-
tion shares.
Jamie argues that this court should calculate Keith’s income
for child support purposes by averaging his total income
from 2017 through 2021. As set forth previously, the incomes
reported in Keith’s W-2 forms were $249,222 in 2017; $249,386
in 2018; $253,271 in 2019; and $226,919 in 2020. Keith
also testified that his 2021 income would total approximately
$229,164. Adding these amounts together provides a total of
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Cite as 31 Neb. App. 38$1,207,962, and dividing that amount over 5 years results in an
average annual income of $241,592.40.
Although Jamie’s approach is representative of a more typi-
cal income averaging calculation, we find that this calculation
would neglect the balance of equities in this case. The evidence
indicates that the number of retention shares Keith has received
as compensation has decreased from 550 shares in 2014 to just
34 shares in 2021. While there is also indication that the value
of these shares has increased from “$134 [in December 2017]
to [$]208” in December 2020, we observe that the decrease
in the number of shares received has substantially surpassed
the increase in the shares’ market value. We further note that
Keith’s annual bonuses have also been steadily decreasing
from $50,000 in 2018 to $24,000 in 2021. In light of the record
in this case, we find that averaging Keith’s income from prior
years would yield an inequitable result given the substantial
reduction both in his annual bonus and in the number of reten-
tion shares awarded as compensation.
[6] We note that as a general matter, the parties’ current earn-
ings are to be used in calculating child support. See Armknecht
v. Armknecht, 300 Neb. 870, 916 N.W.2d 581 (2018). Keith
affirmed that at the time of the modification hearing, he knew
“almost to the dollar . . . what [he] will make in 2021,” and he
agreed that his total income for 2021 would be $229,164, or
$19,097 per month. In consideration of the evidence regard-
ing Keith’s income, we conclude that Keith’s 2021 income
provides the most equitable and least speculative result in cal-
culating child support. Accordingly, for purposes of calculating
Keith’s child support obligation, we determine Keith’s gross
monthly income to be $19,097.
(b) Jamie’s Income
In his cross-appeal, Keith argues that the district court
abused its discretion in the amount of income imputed to Jamie
and claims the court should have adopted his calculation of
Jamie’s income.
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Cite as 31 Neb. App. 38(i) Trial Evidence
Jamie’s employment with Union Pacific ended in November
2020. Jamie reported $109,668 as income in her 2019 tax
return, and this matches her 2019 salary as described by her
2019 compensation statement from Union Pacific. Her 2019
compensation statement also indicates that her salary increased
to $112,404 as of March 1, 2020, and her compensation for
2020 included a cash bonus of $12,000 and an award of reten-
tion shares granted on February 6 with a then-current value of
$11,000. Following her termination of employment, Jamie was
provided a cash severance payment of $93,670 and cash bonus
of $10,000. Her severance also included “[p]rorated vesting of
outstanding equity awards” from 2017 through 2019, and she
received 273 vested retention shares.
(ii) Calculation of Jamie’s Income
In its order, the district court imputed $9,139 in monthly
income to Jamie, finding that she “should be assessed her last
year’s income while employed at Union Pacific.” The court
further determined that Jamie’s severance package, which it
found to be worth approximately $130,000, should not be
counted as income in the child support calculation because “it
was a one-time payment.”
Keith identifies that Jamie’s 2020 salary and cash bonus
total $124,404, and he directs this court to exhibit 18, which
is a copy of his child support calculation worksheet offered as
an aid to the district court. Exhibit 18 sets Jamie’s income at
$10,417 per month, or $125,004 annually. Keith argues that this
amount is “closer” to Jamie’s 2020 salary and cash bonus as
set forth in her 2019 compensation statement and that exhibit
18 should therefore have been adopted. Brief for appellee on
cross-appeal at 21. He also asserts that exhibit 18 “ran both
parents as ‘Head of Households’” and “better approximates
Keith’s income for child support purposes than a single tax fil-
ing status.” Brief for appellee on cross-appeal at 21.
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Cite as 31 Neb. App. 38On our de novo review of the record, we find that the dis-
trict court abused its discretion in imputing a gross monthly
income of $9,139 to Jamie. We observe that this amount taken
over 12 months equals $109,668, her reported salary for 2019.
However, while it is true that Jamie’s employment was termi-
nated before she received her full 2020 salary of $112,404,
we note that her earnings from March 2020 until her termina-
tion in November 2020 reflected her 2020 salary. During this
timeframe, Jamie earned approximately $9,367 per month for
over 6 months. We find that her most recent monthly income
best represents her present earning capacity and that it would
therefore be appropriate to impute $9,367 per month in gross
income to Jamie. Although Keith urges this court to account
for Jamie’s $12,000 bonus in the calculation of her income,
we conclude that it would be speculative to include this
amount, as it is unclear whether Jamie’s future compensation
would include similar bonus payments in addition to her sal-
ary. Accordingly, we determine Jamie’s monthly income to be
$9,367 for purposes of calculating child support.
2. Other Factors in Child
Support Calculation
In addition to the calculation of Keith’s income, Jamie raises
other issues concerning the district court’s child support calcu-
lation. We proceed to examine these issues before setting forth
a modified child support worksheet.
(a) Keith’s Filing Status
Jamie argues that the district court erred in determining that
Keith’s tax filing status was single for purposes of calculating
child support. She argues that this finding was contrary to the
evidence presented at trial.
In its order, the district court found in pertinent part that
“although there was testimony that [Keith] has remarried,
there was no evidence as to [what] his current filing status
is with his new spouse. As such, [his] filing status should
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Cite as 31 Neb. App. 38be single.” However, Keith testified that in addition to hav-
ing remarried, he files his tax returns jointly with his current
wife, and his 2018 and 2019 tax returns reflect his filing sta-
tus as “Married filing jointly” with his current wife. Further,
Keith’s proposed child support calculation set his filing status
to “Head of Household,” and Jamie’s proposed calculation set
Keith’s filing status to “Married Filing Jointly.” Our de novo
review of the record does not reveal any evidence support-
ing the district court’s factual findings that there was no evi-
dence regarding Keith’s filing status with his current spouse.
Accordingly, we find the district court abused its discretion in
finding that Keith’s tax filing status should be “Single” in the
child support calculation.
[7] Jamie argues that Keith’s tax filing status should be mar-
ried filing jointly based on his filing status as set forth in his
2018 and 2019 tax returns. Keith conversely argues that doing
so would “result in an inclusion of [his] current wife’s standard
tax deduction in the calculator without a determination of the
actual tax rate paid by [him] and his wife on their combined
gross incomes” and that this would “force[] [his] current wife
to contribute to child support for her husband’s children.” Brief
for appellee at 14. He also notes that “none of the [child sup-
port] calculator’s [tax filing status] choices will result in an
accurate determination of [a remarried child support obligor’s]
income for child support purposes.” Id. As we further examine
the arguments made by both parties, we initially note that the
choice of tax filing status when running a child support cal-
culation should correlate with a party’s actual tax liability as
closely as possible. In this case, the tax filing status designated
in the child support calculation impacts the resulting child sup-
port owed by greater than $100 per month.
While Jamie’s argument that Keith should be designated
as “Married Filing Jointly” in the child support calculation is
logical given the evidence that he in fact filed his tax returns
using that tax filing status, our de novo review of the record
compels us to conclude otherwise. We first note that the
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Cite as 31 Neb. App. 38income ranges comprising the federal tax brackets for married
taxpayers filing jointly for the 2021 tax year are double the
income ranges applicable to single taxpayers. See Rev. Proc.
2020-46 I.R.B. 1016, 1018-19. For example, a single taxpayer
is taxed 10 percent on income up to $9,950 while married
taxpayers filing jointly are taxed 10 percent on income up to
$19,900. See id. The standard deduction for married taxpayers
filing jointly is similarly double the standard deduction avail-
able to single taxpayers. See id. at 1022 (standard deduction
for single taxpayers in 2021 is $12,550; standard deduction
for married taxpayers filing jointly in 2021 is $25,100). From
these figures, it is apparent that the “Married Filing Jointly”
status operates on the basis that the taxable income and appli-
cable deductions are attributable to two taxpayers. The practi-
cal effect of this arrangement is that a married couple filing
jointly will generally owe less in taxes than a single taxpayer
on the same amount of income. See id.
Keith’s 2018 and 2019 tax returns indicate that he filed his
taxes jointly with his current wife. However, these tax returns
also account for W-2 form earnings not attributable to Keith.
As described previously, Keith’s W-2 forms indicate individual
income of $249,386 in 2018 and $253,271 in 2019. In contrast,
his joint tax returns report total W-2 form earnings of $370,386
in 2018 and $377,214 in 2019. Although the record does not
contain specific evidence regarding earnings attributable to
Keith’s current wife, our review of the evidence in this case
indicates that Keith’s W-2 form earnings constitute approxi-
mately two-thirds of his total marital income.
Setting Keith’s filing status to “Married Filing Jointly”
for purposes of calculating his child support obligation has
the effect of reducing the amount of federal income taxes
deducted from his monthly income in accordance with the
requirements of Neb. Ct. R. § 4-205(A) (rev. 2016). In turn,
this reduced deduction would then result in a larger net
income from which to calculate the amount of child support
owed, resulting in a larger child support obligation. However,
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Cite as 31 Neb. App. 38using the “Married Filing Jointly” status in this instance would
not be appropriate, as it significantly understates Keith’s pro-
portional share of the total joint tax liability shared with his
current wife by attributing to Keith his current wife’s share
of their joint standard deduction without accounting for her
individual income. We also note that the child support calcula-
tor provided through the Nebraska State Bar Association, and
utilized by the parties, the district court, and this court, cau-
tions against this outcome when it instructs that the “Married
Filing Jointly” tax filing status should be used only “in cases
of a person who will be married after entry of the final order,
and their spouse does not work or produce income.” While
such guidance is not binding on this court, we conclude that it
is instructive on this issue, and we accordingly decline to set
Keith’s filing status to “Married Filing Jointly” for purposes
of our child support calculation.
In a similar vein, we further conclude that it would be
improper to set Keith’s filing status to “Single” for purposes
of calculating his child support obligation. Upon examination
of Keith’s W-2 forms and tax returns, it is evident that his
employment compensation comprises a significant majority of
the total combined income with his current wife despite the
decrease to his individual income after 2019. Consequently,
setting his filing status to “Single” fails to account for his
proportionate share of the marital standard deduction and over-
states his share of federal income tax liability, resulting in a
lower child support obligation that we find inappropriate in
our de novo review of the record. Accordingly, we decline
to set Keith’s filing status to “Single” in our calculation of
child support.
Keith assigned to himself the “Head of Household” filing
status in his proposed child support calculation offered to the
district court, and we find “Head of Household” to be the
most appropriate filing status to use in calculating Keith’s
child support obligation. It is true that Keith does not meet
the requirements for declaring this filing status for purposes
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Cite as 31 Neb. App. 38of filing a tax return under the Internal Revenue Code, pri-
marily due to his current marriage and the evidence indicating
that Keith historically exercised less overnight parenting time
than Jamie. See I.R.C. § 2(b)(1)(A)(i) (2018) (individual con-
sidered head of household if such individual is not married at
close of tax year and maintains household which constitutes
principal place of abode for “qualifying child” as defined
by I.R.C. § 152(c) (2018) if such child is not married or not
exempt under § 152(b)(2) and (3)). However, for purposes of
trying to correlate Keith’s approximate tax liability with the
filing statuses available on the child support calculator, we
note that the standard deduction for the “Head of Household”
filing status for the 2021 tax year is $18,800, approximately
50 percent larger than the standard deduction for single tax-
payers. See Rev. Proc. 2020-46 I.R.B. at 1022. We also
observe that the tax liability associated with the “Head of
Household” filing status is slightly lower than the liability
associated with the “Single” filing status. See id. at 1018-19.
In other words, using “Head of Household” as a filing status
for Keith in calculating child support strikes a reasonable
balance between the underwithholding of taxes that would
occur if we used “Married Filing Jointly” (resulting in higher
child support) and the overwithholding of taxes that would
occur if we used “Single” (resulting in lower child support).
Accordingly, we conclude that the standard deduction and tax
brackets attributed to the “Head of Household” status more
closely align with Keith’s proportionate share of his combined
marital income and corresponding joint federal income tax
obligation, and we therefore determine that Keith’s filing sta-
tus should be treated as “Head of Household” for purposes of
our child support calculation.
As a final note on this tax filing status issue, we caution
litigants and attorneys that they should not expect a trial court
or appellate court to engage in mathematical and tax analyses
to determine an appropriate filing status when calculating
child support. If the parties are not in agreement on what
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Cite as 31 Neb. App. 38tax filing status should be used for each parent, then specific
evidence must be presented to the trial court to support the
tax filing status requested. In this case, we found an abuse
of discretion by the district court’s use of “Single” as a filing
status for Keith because there was no evidence to support it
and neither party requested it. However, if the district court
had used a tax filing status for Keith proposed by either party
and no specific evidence was adduced as to why one filing
status was more appropriate than the other, we would defer to
the trial court’s decision and find no abuse of discretion.
(b) Tax Exemptions and Child Tax Credit
Jamie claims the district court improperly determined Keith’s
tax exemptions and failed to properly allocate the child tax
credit for the parties’ still eligible child.
Keith affirmed on cross-examination that he has claimed
“three exemptions on [his] state taxes” each year for himself,
his current wife, and Brock. His tax returns further indicate
that he claimed the child tax credit for Brock in both 2018 and
2019, and Brock is the only child of the parties who remains
eligible for the child tax credit.
Conversely, Jamie’s tax returns indicate that she has claimed
two exemptions each year for herself and Nathan. Prior to
2019, she claimed the child tax credit for Nathan; however, as
of 2019, Nathan was no longer eligible for the child tax credit.
In her 2019 tax return, Jamie claimed a tax credit for Nathan
as a dependent.
Upon our review of the record in this case, we conclude
the district court abused its discretion in allocating Keith’s tax
exemptions and child tax credits. No evidence was presented
indicating that Keith claimed only two exemptions, and the
only evidence presented regarding this issue indicated that he
claimed three. Further, the parties’ tax returns indicate that
only Keith has claimed the child tax credit for Brock, and
we see no indication that the parties ever alternated the child
tax credits for their children. Accordingly, for purposes of the
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Cite as 31 Neb. App. 38calculation of Keith’s child support obligation, we find that the
three tax exemptions he has historically claimed and the child
tax credit for Brock should be attributed to Keith.
(c) Parties’ Overnight Parenting Time
Jamie claims the district court abused its discretion in failing
to account for her “additional 10 overnights per year” with the
children in its calculation of child support. Brief for appellant
at 24. She argues there was no dispute by the parties that she
had exercised an additional 10 days of parenting time dur-
ing the years prior to the modification, and the district court
should have factored those additional days into its calculation
of child support.
We initially note that the December 2011 decree and parent-
ing plan effectively divided parenting time equally between
the parties. Although Jamie requested modification of the
parenting plan in the “Answer and Counterclaim” filed on
July 22, 2020, she did not request modification of the parent-
ing plan in the “Answer and Amended Counterclaim” filed on
December 3.
There was no dispute between the parties regarding the
additional overnights exercised by Jamie. The district court
found that Jamie “has an expectancy of additional parenting
time due to the right of first refusal utilized for [Keith’s] busi-
ness travel” and that “at most, [she] has had ten extra days per
year with the children” prior to the modification. However,
Jamie abandoned her request to modify the parenting plan, and
the court did not modify the parenting plan in its order. We are
not persuaded that the court’s recognition that Jamie has his-
torically exercised an additional 10 days of parenting time per
year constitutes a parenting time adjustment in this case, and,
as the court observed, “[Keith] testified that, if he should need
to travel for work, he is able to be flexible and not lose par-
enting time with the children.” Accordingly, we find the court
did not abuse its discretion in allocating 1821⁄2 days to each
party in its child support calculation. See Hall v. Hall, 26 Neb.
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Cite as 31 Neb. App. 38App. 877, 924 N.W.2d 733 (2019) (no basis for district court
to adjust days attributed to each party in child support calcu-
lation when court found no material change in circumstances
existed to warrant change in custody or adjustment to division
of parenting time), disapproved on other grounds, Fichtl v.
Fichtl, 28 Neb. App. 380, 944 N.W.2d 516 (2020).
3. Child Support Calculation
and Cost-Sharing Division
We have concluded the district court’s child support cal-
culation included errors as described previously. We have
completed our own joint custody child support calculation
worksheet consistent with our findings, and this worksheet is
attached to this opinion as appendix A.
Under our de novo calculation, Keith’s monthly child sup-
port obligation should be $638 for two children and $426
for one child. This calculation alters the parties’ division of
costs for the children, with Keith responsible for 66 percent
of such expenses and Jamie responsible for the remaining
34 percent.
4. Material Change in Circumstances
Jamie argues that a material change in circumstances has
not occurred in this case to warrant modification of Keith’s
original child support obligation as set forth in the December
2011 decree.
[8,9] A party seeking to modify a child support order must
show a material change in circumstances that (1) occurred
subsequent to the entry of the original decree or previous
modification and (2) was not contemplated when the decree
was entered. Tilson v. Tilson, 307 Neb. 275, 948 N.W.2d 768(2020). 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 sustaining
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Cite as 31 Neb. App. 38a reduction in income, and whether the change is temporary
or permanent. Fetherkile v. Fetherkile, 299 Neb. 76, 907
N.W.2d 275 (2018). Neb. Ct. R. § 4-217 further provides:
Application of the child support guidelines which
would result in a variation by 10 percent or more, but not
less than $25, upward or downward, of the current child
support obligation, child care obligation, or health care
obligation, due to financial circumstances which have
lasted 3 months and can reasonably be expected to last for
an additional 6 months, establishes a rebuttable presump-
tion of a material change of circumstances.
As described above, we have calculated Keith’s modified
child support obligation to be $638 for two children. The disso-
lution court initially calculated Keith’s child support obligation
for two children to be $394.72 per month under the Nebraska
Child Support Guidelines based on the expiration of his annu-
ity income and the emancipation of his child from a prior mar-
riage. However, the December 2011 decree imposed an upward
deviation to Keith’s child support obligation and ordered Keith
to pay $1,000 per month in child support for two children
beginning on June 1, 2013.
Given the changes in Keith’s income and our resulting child
support calculation, we find that the evidence in this case
establishes the rebuttable presumption set forth in § 4-217.
At the time of the district court’s modification, Keith’s 2021
salary had been in effect for 3 months, and his testimony on
cross-examination indicated that there was no dispute that his
2021 income would remain stable for the remainder of the
year. Accordingly, we find that Keith’s change in financial
circumstances had lasted for 3 months and could be reasonably
expected to last for an additional 6 months. Further, regardless
of whether we compare our calculation of Keith’s child sup-
port to the December 2011 decree’s upward deviation or the
dissolution court’s preliminary calculation under the child sup-
port guidelines, the 10-percent upward or downward variation
requirement of § 4-217 has been satisfied in this case.
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Cite as 31 Neb. App. 38Jamie argues that the application of the § 4-217 presump-
tion in this case is barred by this court’s holding in Brodrick
v. Baumgarten, 19 Neb. App. 228, 809 N.W.2d 799 (2011). In
Brodrick v. Baumgarten, the parties had divorced in 2001 and
subsequently entered into a stipulated modification in which
they agreed, in pertinent part, that the father would pay $200
per month in child support, and this amount was a deviation
from the guidelines. Less than 5 months later, the father sought
further modification based in part on alleged changes to his
financial circumstances. Specifically, the father alleged that his
employment had changed from full-time to part-time employ-
ment, although his pay rate remained $10 per hour. Despite
these alleged changes, the father asked the court to impute
an income of $10 per hour for full-time employment, which
was his income at the time of the first modification. The dis-
trict court found that a material change in circumstances had
occurred and calculated the father’s new support obligation
under the guidelines to be $3.12. However, the court found
this amount to be minimal and terminated the father’s sup-
port obligation.
On appeal, this court reversed the district court’s modifica-
tion. We concluded that a material change in circumstances had
not occurred concerning the father’s financial circumstances
because he “specifically asked the court to impute his income
level as $10 per hour for full-time employment” in the second
modification and this “was identical to his earning level at the
time of the prior order.” Brodrick v. Baumgarten, 19 Neb. App.
at 233, 809 N.W.2d at 803. Given those facts, this court found
it improper to apply the presumption set forth in § 4-217 to the
circumstances, as the father’s child support obligation of $200
per month under the prior order was a deviation he stipulated
to and was already “more than a 10-percent variation from
the amount the guidelines would have required.” Brodrick v.
Baumgarten, 19 Neb. App. at 233, 809 N.W.2d at 803.
[10] Jamie argues that Brodrick v. Baumgarten, supra,
“makes clear that Keith’s higher income cannot constitute
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Cite as 31 Neb. App. 38a material change in circumstances to lower his stipulated
support obligation” and that “if a child support payor’s
income is equal to or greater than the payor’s income at the
time of the last support order, then the § 4-217 presumption
is effectively rebutted.” Brief for appellant at 29. However,
Jamie’s argument misappropriates this court’s reasoning. We
read Brodrick v. Baumgarten, supra, to stand for the propo-
sition that when a prior order of child support constitutes
a deviation from the Nebraska Child Support Guidelines, a
party may not seek modification of that order solely on the
basis that the guidelines would result in a different child sup-
port amount. Fundamental to this court’s analysis in Brodrick
v. Baumgarten, supra, was the fact that the father’s imputed
income was equal to his income at the time of the prior order,
which meant that there had been no change in his financial
circumstances to begin with. In contrast, the record presently
before this court makes clear that Keith’s financial circum-
stances have changed since the entry of the December 2011
decree. Accordingly, the reasoning underpinning our decision
in Brodrick v. Baumgarten, supra, is not applicable to the
present case.
Further evidence also supports a finding of a material
change in circumstances. In addition to the changes in the par-
ties’ individual financial circumstances, the evidence indicates
that the circumstances surrounding the children’s expenses,
which formed the basis of the upward deviation, have changed.
The upward deviation in the December 2011 decree accounted
for approximately $600 in additional monthly child support,
and this deviation was intended for Jamie to unilaterally
cover the children’s expenses as set forth in the decree. The
evidence presented at trial indicates that Jamie was paying
approximately $280 per month in direct expenses for Nathan
and Brock in the years leading up to this modification action.
Conversely, Jamie did not dispute that Keith had been paying
approximately $440 per month throughout 2020 for Nathan’s
car payments and cell phone, as well as other miscellaneous
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Cite as 31 Neb. App. 38items for both sons, and these expenses were in addition to
his child support payments. In light of our modified child sup-
port calculation and the evidence of the changes in the parties’
financial circumstances and cost-sharing arrangement, we con-
clude that there has been a material change in circumstances
warranting modification of Keith’s child support obligation.
Accordingly, we modify the district court’s order to reflect our
child support calculation as set forth in appendix A.
5. Retroactive Modification
Jamie claims the district court erred in ordering Keith’s mod-
ified child support to be retroactive to July 1, 2020, without
also retroactively modifying the parties’ cost-sharing respon-
sibilities and Jamie’s requirement under the December 2011
decree to cover direct expenses for the children. She argues
that Keith would be provided an unfair windfall if he is also not
required to cover his share of the expenses unilaterally covered
by Jamie from July 1, 2020, until April 1, 2021.
[11-13] In determining whether to order a retroactive modi-
fication of child support, a court must consider the parties’ sta-
tus, character, situation, and attendant circumstances. Johnson
v. Johnson, 290 Neb. 838, 862 N.W.2d 740 (2015). Absent
equities to the contrary, modification of a child support order
should be applied retroactively to the first day of the month
following the filing day of the application for modification. Id.The initial determination regarding the retroactive application
of a modification order is entrusted to the discretion of the trial
court and will be affirmed on appeal absent an abuse of discre-
tion. Bowmaker v. Rollman, 29 Neb. App. 742, 959 N.W.2d
819 (2021).
As previously described, the record indicates that Jamie was
unilaterally paying approximately $280 per month in direct
expenses for Nathan and Brock. The record also indicates that
Keith was unilaterally paying approximately $440 per month
in direct expenses for Nathan and Brock. Added together,
these amounts reflect monthly expenditures of approximately
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Cite as 31 Neb. App. 38$720. When factoring in each party’s percentage share of
expenses under our modified child support calculation, Keith
would have been responsible for approximately $475 of these
monthly expenditures while Jamie would have been respon-
sible for $245. While the parties’ unilateral payments do not
perfectly align with their percentage shares of expenses for the
children under our modified child support calculation, we can-
not say it was an abuse of discretion for the district court to not
modify the parties’ cost-sharing arrangement to be retroactive
to July 1, 2020, based on their respective payments for their
children’s expenses.
VI. CONCLUSION
For the reasons set forth above, we modify the district
court’s order so that Keith’s modified child support obligation
is consistent with the worksheet attached to this opinion. We
affirm the remainder of the district court’s order.
Affirmed as modified.
(See pages 65-66 for appendix A.)
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Cite as 31 Neb. App. 38APPENDIX A
Case Name: Maskil-Cronin v. Cronin
Worksheet 1 - Basic Income and Support Calculation
Mother: Head of Household / 2 Exemptions / Railroad Retirement
Father: Head of Household / 3 Exemptions / Railroad Retirement
Line Description Mother Father
1 Gross Earned Taxable Income $9,367.00 $19,097.00
1 Gross Unearned Taxable Income $0.00 $0.00
1 Tax-Exempt Income $0.00 $0.00
2.a Taxes - Federal $1,252.83 $3,893.53
2.a Taxes - Nebraska $442.59 $1,096.70
2.b FICA - Social Security / Railroad Retirement* $1,014.40* $1,171.45*
2.b FICA - Medicare $135.82 $298.78
2.c Retirement $374.68 $763.88
2.d Previously Ordered Support $0.00 $0.00
2.e Regular Support for Other Children $0.00 $0.00
2.f Health Insurance Premium for Parent $0.00 $0.00
Other Deductions $0.00 $0.00
Child Tax Credit ($0.00) ($166.67)
2.g Total Deductions $3,220.32 $7,057.67
3 Net Monthly Income $6,146.68 $12,039.33
4 Combined Net Monthly Income $18,186.01
5 Combined Net Annual Income $218,232.08
6 Each Parent's Percent 33.8% 66.2%
7 Monthly Support from Table (2 Children) $2,970.00
8 Health Insurance Premium for Children $0.00 $248.00
9 Total Obligation $3,218.00
10 Each Parent's Monthly Share $1,087.68 $2,130.32
11 Credit For Health Insurance Premium Paid ($0.00) ($248.00)
12 Each Parents' Final Share (2 Children, rounded) $1,088.00 $1,882.00
Worksheet 4 - Number of Children Calculation (final shares are rounded to the nearest whole dollar)
No. Table Table + Health Mother's Share of Father's Share of Mother's Final Father's Final
Children Amt. Ins. Total Total Share Share
2 $2,970.00 $3,218.00 $1,087.68 $2,130.32 $1,088.00 $1,882.00
1 $2,099.00 $2,347.00 $793.29 $1,553.71 $793.00 $1,306.00
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Cite as 31 Neb. App. 38Worksheet 3 - Joint Physical Custody (2 Children)
Line Description Mother Father
1 Each Parent's Percent Contribution 33.8% 66.2%
2 Monthly Support (Worksheet 1 Line 7) $2,970.00
3 Joint Physical Support (Line 2 * 1.5) $4,455.00
4 Each Parent's Share (Line 1 * Line 3) $1,505.79 $2,949.21
5 No. Days Custody 182.5 182.5
6 Percentage of Year (Line 5 / 365) 50% 50%
7 Mother's Obligation to Father $752.90
8 Father's Obligation to Mother $1,474.61
9 Father's Obligation for Support $721.71
10 Children's Health Insurance Premium $0.00 $248.00
11 Combined Children's Health Insurance Premiums $248.00
12 Each Parent's Share of Premium (Line 11 * Line 1) $83.82 $164.18
13 Amount of Premium Paid (Line 10) $0.00 $248.00
14 Amount Owed to Other Parent (Line 12 - Line 13) $83.82 $0.00
15.a Which Parent Owes Basic Support Father
15.b Which Parent Owes for Health Insurance Mother
15.c Does the Same Parent Owe on Lines 15a and 15b No
16 Total Support Owed by Father (rounded) $638.00
Worksheet 3 - Joint Physical Custody (1 Child)
Line Description Mother Father
1 Each Parent's Percent Contribution 33.8% 66.2%
2 Monthly Support (Worksheet 1 Line 7) $2,099.00
3 Joint Physical Support (Line 2 * 1.5) $3,148.50
4 Each Parent's Share (Line 1 * Line 3) $1,064.19 $2,084.31
5 No. Days Custody 182.5 182.5
6 Percentage of Year (Line 5 / 365) 50% 50%
7 Mother's Obligation to Father $532.10
8 Father's Obligation to Mother $1,042.15
9 Father's Obligation for Support $510.06
10 Children's Health Insurance Premium $0.00 $248.00
11 Combined Children's Health Insurance Premiums $248.00
12 Each Parent's Share of Premium (Line 11 * Line 1) $83.82 $164.18
13 Amount of Premium Paid (Line 10) $0.00 $248.00
14 Amount Owed to Other Parent (Line 12 - Line 13) $83.82 $0.00
15.a Which Parent Owes Basic Support Father
15.b Which Parent Owes for Health Insurance Mother
15.c Does the Same Parent Owe on Lines 15a and 15b No
16 Total Support Owed by Father (rounded) $426.00