Miller v. Miller ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
MILLER V. MILLER
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
RICHARD D. MILLER, APPELLANT,
V.
CHRISTINA A. MILLER, APPELLEE.
Filed June 4, 2019. No. A-18-368.
Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed.
Andrew M. Ferguson, of Govier, Katskee, Suing & Maxell, P.C., L.L.O., for appellant.
John A. Kinney and Jill M. Mason, of Kinney Mason, P.C., L.L.O., for appellee.
MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
BISHOP, Judge.
INTRODUCTION
Richard D. Miller appeals from the decision of the Douglas County District Court
concluding that no material change in circumstances occurred to warrant a change in his child
support and alimony obligations, and also ordering him to pay $3,494 for Christina A. Miller’s
attorney fees. We affirm.
BACKGROUND
Richard and Christina were married in 1995. Together they have four children (born 1997,
2001, 2004, and 2007). Richard filed for divorce in 2015.
DECREE OF DISSOLUTION
The district court entered a decree dissolving Richard and Christina’s marriage in June
2016. It found the parties’ property settlement agreement to be fair, reasonable, and conscionable,
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and approved and incorporated the agreement into the decree. The parties agreed that Richard
would pay alimony to Christina in the amount of $400 per month for 60 months beginning July 1.
Richard and Christina were awarded joint legal custody of their minor children; Christina received
physical custody and the parties agreed upon how to allocate parenting time.
Two child support calculation worksheets were attached to the decree. One worksheet
showed Richard’s total monthly gross income was $8,333 and Christina’s total monthly gross
income was $2,000; Richard’s share of monthly support for four children was $1,882. The other
worksheet showed Richard’s total monthly gross income was $17,567 and Christina’s total
monthly gross income was $1,400; Richard’s share of monthly support for four children was
$3,124. The decree, which reflects the parties’ agreement, ordered Richard to pay child support of
$2,400 per month, beginning July 1, 2016, for the parties’ four minor children (reducing to $2,200
for three children, $1,800 for two children, and $1,300 for one child). Despite the child support
amount ordered not matching the figures contained on either of the attached worksheets, there was
no explanation in the decree as to how the ordered child support amount was determined or why
the amount deviated from the attached worksheets.
POSTDECREE PROCEEDINGS
Slightly over a year after the decree was entered in June 2016, Richard filed a “Complaint
for Modification of Decree” on July 12, 2017. He claimed his income decreased to the extent that
the application of the Nebraska Child Support Guidelines would result in “a more than 10%
decrease” in his monthly child support obligation and would result in a substantial and material
change to his percent obligations for uninsured and unreimbursed medical expenses incurred for
the minor children. He was “able to pay child support in an amount set by the Nebraska Child
Support Guidelines, without deviation, commencing July 1.” Richard alleged that he no longer had
access to employer-provided medical care, causing him to “incur significant additional expense”
and warranting a credit for child support. He alleged that his income decreased to the extent that
alimony awarded to Christina was inequitable and unreasonable. Richard requested that the district
court: (1) modify his child support obligation according to the Nebraska Child Support Guidelines;
(2) order his child support guideline percentage of all uninsured and unreimbursed medical
expenses incurred for the parties’ minor children; (3) terminate his alimony obligation; and (4)
grant him an award of attorney fees plus costs for the action.
Christina filed an “Answer and Counterclaim to Modify Decree,” denying the material
allegations of Richard’s complaint. Christina’s counterclaim alleged that the parties’ earnings had
changed, and resulted in an “upward variation” by 10 percent or more (but not less than $25),
which had lasted at least 3 months and could reasonably be expected to last for 6 more months.
She claimed an increase to Richard’s child support obligation and his percentage of childcare and
uninsured health care expense obligations was warranted and was in the best interests of the minor
children. She requested the district court (1) modify child support pursuant to the Nebraska Child
Support Guidelines, (2) adjust the above-stated expenses, and (3) award attorney’s fees incurred
in the action.
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TRIAL
Richard testified that his current financial obligation was $2,200 per month for three
children, after the oldest child “dropped off in October.” He acknowledged his monthly $400
alimony obligation, estimating that he was behind in that by “at least a few months.” He recalled
that at the time the decree was entered, the numbers used for his income for child support
calculations were somewhere between $8,000 and $12,000 a month. He denied making that much
money at that time and agreed no one, including himself, knew exactly how much money he was
making; he had filed an extension on his 2015 tax returns and they were not yet filed at the time
the decree was entered. During cross-examination on this topic, Richard said he did not know what
his income was but knew at that time from working with a colleague that “it was flowing towards
that $8,000 a month” and he had anticipated that continuing. Richard agreed that he made around
$140,000 in 2014. According to Richard’s tax return for 2015 (exhibit 1), his adjusted gross income
was $48,095.
In 2015 and 2016, Richard was self-employed but working for “Questar Capital” (Questar)
in securities sales and for “American Senior Benefits” (American Senior) in insurance sales. He
identified exhibit 2 as the 1099’s from those companies for 2016. That exhibit reflects income
from American Senior ($64,098.96), Questar Asset Management ($62,018.41) (Richard described
this as “residual” and “recurring revenue” that “left with” a colleague’s departure from the
company in January 2017), and Questar ($31,902.01); total income of $158,019.38 in 2016.
Richard agreed that his “[g]ross” earnings that year were almost $150,000 and that he did “a lot
better” that year. He explained that a colleague in his office was referring him clientele because
the colleague “didn’t have the licenses to handle what they needed at the time” and was trying to
help Richard. Near year’s end, the colleague “decided to go to a different firm.” Richard “also
attempted to go there, but was declined to go with him.” Richard claimed “most of this 2016
income left when [his colleague] left” because the colleague took his client base with him when
he left Questar.
Richard continued working for the same two companies in January 2017, but was unable
to generate the same type of income as he had the prior year because “the referral base stopped
and the recurring revenue stopped,” and in July he was informed that Questar was terminating his
contract. Richard testified that Questar “randomly pull[s] credit reports on financial advisors,” and
Questar pulled his credit report (in 2017) and “didn’t like what they saw.” He received a letter
from Questar in June, notifying him that Questar was terminating his association “for no cause”
effective July 14 and that the same applied to Richard’s association with “Questar Asset
Management.” Richard said he resigned July 13. A July 20 letter informed Richard that his
“FINRA registration and Registered Representative Agreement with [Questar were] terminated”
July 13. For securities sales work, Richard had to have securities licenses (“licenses” and “license”
were used interchangeably during testimony; for consistency, we will use the plural form of the
word). According to Richard, the regulating organization for financial advisors is “FINRA” and
“you have to then take your license[s] and be affiliated with a firm.” Richard had “Series 6”
licenses for about 18 to 20 years and “Series 7” licenses for about 5 to 6 years. Although his
Questar association ended, Richard still had his securities licenses but they were inactive since he
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could not use them unless he was associated with a broker-dealer, like Questar. According to
Richard, “You can’t just work out of your basement or hang a shingle up.”
Richard explained that his business had two parts, “insurance and investments . . . security
sales, investment-type of products,” and the majority of his income had been from Questar rather
than American Senior because of his securities licenses. Exhibit 3 contains Richard’s monthly
bank records from January 14 to October 13, 2017, along with a cover “Deposit Summary” sheet.
Although Richard had a credit union for servicing a loan, he claimed he had only this one bank
account. The deposit summary sheet shows that of $62,763.81 in total deposits to this bank account
for the 9-month period covered, deposits from “Income” totaled $39,323.81. Richard claimed the
rest of the deposits came from family (mostly his parents) and some friends. The summary also
shows that deposits from income excluding Questar totaled $28,465.10, meaning that Questar
income only accounted for $10,858.71 of the total deposits, while American Senior or other
“Income” totaled $28,465.10 (our review of the exhibit shows $28,263.76 in deposits from
American Senior, and $201.34 in deposits from “Raiser LLC” from July 24 through October 11).
Exhibit 4 (Richard’s American Senior commission statement) reflects commission earnings of
$29,674.95 as of September 28; Richard acknowledged that number did not exactly match what
he claimed for the year as income from American Senior.
When Richard received the letter from Questar terminating his association with the
company, he “probably applied for 15 jobs in the last several months” before trial. He applied for
seven or eight securities-related jobs but “as soon as they saw [his] credit reports, it was pretty
much over with.” At the time of trial, no firm would accept him with his credit history and his
chances of finding a broker-dealer were “pretty much zero until [his] situation improves.”
Richard indicated that only an insurance license was required to do insurance work.
However, at the time of trial, Richard was no longer working with American Senior. He testified
that he was currently working for a new software company, and was also “soliciting insurance on
a very part-time basis” for Bankers Life. He had “tried to apply for [his] securities license[s]” at
Bankers Life; exhibit 6 includes an October 4, 2017, email from Bankers Life stating that “Bankers
Life Securities” decided not to approve Richard’s request for registration after a review of his
application and background verification reports.
Richard testified the Bankers Life “thing wasn’t working out,” so he met with the software
company and “came to an agreement about a week and a half, two weeks ago” (before trial) and
was “in the process of starting there full time.” He believed his income from the job would be
“commission driven” but with a “draw of $5,000 a month to start with.” There would be no
benefits. Richard hoped to sell enough to make more than $60,000 per year. A written contract
was “being prepared” because it was “so new.”
The “CEO” of a software company that owns the new software company that just hired
Richard, testified that he was “life-long friends with both” Richard and Christina. The parent
company had been in operation since 2014, but the new “start-up” had just begun within the “last
two months or so.” The start-up company “is a behavior-based risk management company” created
for the financial industry; its target audience initially would be financial professionals and firms.
He had “brought on” Richard within “the last week or so” to help with sales. The CEO indicated
a contract was not finalized. Richard would be “an independent-contracted employee” with “a
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commission-based draw starting [at] $5,000 per month”; the CEO envisioned the company might
hire Richard as an employee in the future. Payment details, including Richard’s commission, were
not finalized. Richard was not receiving any other benefits.
Christina testified that while married, Richard sold financial and life insurance products,
would occasionally network to find his own clients, and did not rely on just one person to refer
business to him. Christina was employed as a sonographer and made around “[$]23 and some
change, 46, maybe” an hour and worked about 30 hours “max” per week. On whether she thought
there were any opportunities to make more than the $23 an hour she currently made, Christina
answered, “[w]ith my education as a sonographer, that pay scale is about there. Maybe [$]28 an
hour, possibly.” Exhibit 15 contains Christina’s paystub from September 29, 2017, along with a
cover sheet breaking down her year-to-date earnings and deductions over a 9-month period.
According to her summary, her average net monthly income over that 9-month period was
$1,855.04. Exhibit 16 is Christina’s tax return from 2015; her gross income for that year was
$5,096, but as noted earlier, a gross monthly income of $2,000 was attributed to her in one child
support worksheet attached to the 2016 decree, and $1,400 per month in the other worksheet.
ORDER OF MODIFICATION, MOTION FOR NEW TRIAL, AND APPEAL
The district court entered an “Order of Modification” on January 31, 2018. The court stated
that it was “[w]orth noting” that at the time of the original decree, Richard agreed to earning $8,333
per month even though his 2015 tax return only showed annual income of $48,118. The court said
that Richard claimed to have made $150,000 in 2016 “although he did not present records proving
the same.” (We note, however, that exhibit 2 contains 1099’s showing total earnings of
$158,019.38 in 2016.) The district court found that Richard’s bank deposits totaled $62,763 for
the first 9 months of 2017. It said Richard testified that he was taking a job with a “‘draw’” in the
amount of $5,000. The district court noted that, for the years leading up to the stipulated decree,
Richard’s income “seemed to vary significantly” and that his income “continues to be the subject
of significant uncertainty and variance.” It found “no substantial and material change in
circumstances justifying a change to child support and alimony, because [Richard] has not proved
that his current income is less now than it was at the time he agreed to the $8,333 figure for his
income.”
Alternatively, the district court concluded that even if Richard proved his income had
decreased since the time of the decree, a decrease did not justify a change to child support or
alimony because Richard “admitted at trial that his own mismanagement of his finances caused
him to lose his licensure for selling securities.” (We note that Richard did not lose his securities
licensure; rather, he was unable to find a brokerage house willing to associate with him and thus
his licenses were “inactive.”) The court pointed out that Richard agreed to the alimony award under
the original decree and the evidence did not suggest that a change to that award was warranted.
The district court ordered no change to child support or alimony, and ordered Richard to pay
$3,494 in attorney fees for Christina’s benefit.
Richard filed a “Motion and Notice,” seeking a new trial or to alter or amend the January
31, 2018, order; the motion was denied by the district court on March 7. Richard appeals.
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ASSIGNMENTS OF ERROR
Richard claims, consolidated and restated, that the district court erred by (1) finding no
material change in circumstances justifying a change to child support and not reducing that
obligation in accordance with the Nebraska Child Support Guidelines, (2) finding no good cause
justifying a change in alimony, and (3) ordering him to pay Christina’s attorney fees.
STANDARD OF REVIEW
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 which will be affirmed absent an abuse of
discretion by the trial court. Armknecht v. Armknecht, 300 Neb. 870, 916 N.W.2d 581 (2018). The
same standard applies to the modification of child support. Id.
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. See id.
In an action for modification of a marital dissolution decree, the award of attorney fees is
discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the
absence of an abuse of discretion. Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014).
A judicial abuse of discretion exists if the 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. Armknecht v. Armknecht, supra.
ANALYSIS
CHILD SUPPORT
Richard claims the district court erred by not modifying his child support obligation. He
argues that his 2016 income does not represent his current earning capacity and that he has been
unable to find employment at the same level of income he “saw” that year. Brief for appellant at
12. He asserts that his income decreased “by more than 60% after 2016,” in reference to the amount
of deposits from income in 2017 and evidence that his income “would remain around $5,000 [per
month] due to his new position.” Id. He also claims that at the time the divorce decree was entered,
the parties did not anticipate that he would need to find employment “with substantially lower
income in a field outside of selling securities.” Id. at 13. Richard contends the district court
therefore abused its discretion by finding that no material change in circumstances had occurred
since the entry of the decree.
A party seeking to modify a child support order must show a material change in
circumstances which (1) occurred subsequent to the entry of the original decree or previous
modification and (2) was not contemplated when the decree was entered. Fetherkile v. Fetherkile,
299 Neb. 76, 907 N.W.2d 275 (2018). The party seeking the modification has the burden to
produce sufficient proof that a material change of circumstances has occurred that warrants a
modification and that the best interests of the child are served thereby. Id.
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
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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. Id. Further, the Nebraska Child Support Guidelines state that if applicable, earning
capacity may be considered in lieu of a parent’s actual, present income and may include factors
such as work history, education, occupational skills, and job opportunities. See Fetherkile v.
Fetherkile, supra. But, the paramount concern in child support cases, whether in the original
proceeding or subsequent modification, remains the best interests of the child. Id.
In determining that no material change in circumstances had occurred in this case, the
district court pointed out that Richard agreed at the time of the decree to attribute $8,333 per month
in gross income to himself even though his 2015 tax return showed only an annual income of
$48,118 (this reflects only business income; Richard’s total income was $51,495 when adding
“Gambling Winnings” of $3,377; his adjusted gross income was $48,095). Notably, the order
stated, “For the years leading up to the stipulated Decree, [Richard’s] income seemed to vary
significantly. [Richard’s] income continues to be the subject of significant uncertainty and
variance.” The court thereafter concluded there was no “substantial and material change in
circumstances justifying a change to child support and alimony, because [Richard] has not proved
that his income is less now than it was when he agreed to the $8,333 figure for his income.” This
statement is true when considering that Richard’s business income in 2015 was only $48,118 when
he agreed to attribute to himself a monthly gross income of at least $8,333 in June 2016; his alleged
2017 “income” to date was $62,763.81, which is higher than it was when Richard agreed to the
child support ordered in the decree. We acknowledge, however, that Richard testified he agreed to
the higher amount in the decree because he was forecasting higher earnings in 2016, whereas
currently, he is forecasting lesser earnings. Nevertheless, it is evident that the district court was
persuaded that Richard’s income had varied significantly in the years before the decree, and that
same kind of income fluctuation merely continued; hence, no material change in circumstances.
As noted in the legal principles set forth above, one factor to be considered in determining
whether a material change in circumstances has occurred is whether there has been a change in
Richard’s financial position, including whether the change is temporary or permanent. See
Fetherkile v. Fetherkile, supra. Making that determination is more difficult when an individual’s
income has fluctuated significantly in past years because of the nature of that individual’s work.
In such cases, a change in financial position based on higher or lower earnings in a given year can
be expected, and income averaging can be used to determine a reasonable monthly income when
calculating child support. See Neb. Ct. R. ch. 4, art. 2, worksheet 1, fn.5 (rev. 2015) (in event of
substantial fluctuations of annual earnings of either party during immediate past 3 years, income
may be averaged). Therefore, the fact that Richard’s income was less in 2017 than it was in 2016
does not necessarily constitute a material change in circumstances, since it is possible his income
could increase again by the following year. In other words, the current downswing in his income
could be temporary, and when averaging his income over 3-year periods, there may be minimal
changes to his averaged earnings. But Richard’s position at trial and his argument on appeal
involves more than his claim of reduced income in 2017; he contends this his inability to associate
with a brokerage house where he could sell securities has had a material impact on his ability to
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earn an income comparable to his former earnings. In other words, his earning capacity has been
adversely affected and there is a suggestion that it could be permanent.
The Nebraska Child Support Guidelines provide, “If applicable, earning capacity may be
considered in lieu of a parent’s actual, present income and may include factors such as work
history, education, occupational skills, and job opportunities.” Neb. Ct. R. § 4-204 (rev. 2015).
“Earning capacity is not limited to wage-earning capacity, but includes moneys available from all
sources.” Id. Additionally, as noted earlier, the guidelines provide that 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 parent. See Neb. Ct. R. ch. 4, art. 2,
worksheet 1, fn.5 (rev. 2015). In Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007), the
Nebraska Supreme Court concluded that a 3-year average tended to be the most common approach
in cases where a parent’s income fluctuates.
Therefore, to consider whether Richard’s earning capacity has been affected, we first
consider his average earnings over 3-year periods of time. The record before us only provides
income information for Richard from 2014 to the time of the modification trial in October 2017.
Richard testified that he earned $140,000 in 2014. His 2015 tax return shows an adjusted gross
income of $48,095. The 1099’s for 2016 total $158,019, and Richard supplied evidence of his net
deposits for 2017, which totaled $62,763.81 (net) through the middle of October 2017. He had
recently begun a job that he claimed would be paying him $5,000 per month; adding 3 months of
earnings at that rate to his net deposits results in about $77,763.81 total income for 2017.
Averaging Richard’s income for 2014, 2015, and 2016, equals $115,371 per year ($9,614.25 per
month). Averaging his income for 2015, 2016, and 2017, equals $94,626 per year ($7,885.50 per
month). Therefore, based solely on income averaging in the most recent 3 years, Richard has
demonstrated a reduction in income which might constitute a material change in circumstances.
However, a change in the financial position of the parent obligated to pay support is not
the only consideration when determining whether there has been a material change in
circumstances warranting modification; other factors to be considered include: 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. See Fetherkile v.
Fetherkile, supra. Further, a party seeking to modify a child support order must show a material
change in circumstances which was not contemplated when the decree was entered. See id.
Richard claims that at the time the divorce decree was entered, the parties did not anticipate
that he would need to find employment “with substantially lower income in a field outside of
selling securities.” Brief for appellant at 13. Richard spoke of his “ongoing” financial issues:
monthly expenses were higher than income, which had dropped dramatically; he sold “the house”
for a loss of about $100,000 and now owed “around $111,000” as a result of the “short sale” on
his home. He also had a “back tax debt to the IRS,” which was about $96,000 at the time of the
divorce, but was now over $100,000. He was working with the IRS on a payment plan. He had
“personally” paid “the State debt” of $20,000 off during divorce proceedings. Christina’s counsel
questioned Richard about his credit issues:
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Q. So those tax years that resulted in the tax arrearages that have impacted your
credit rating, those were years when you took gross income, you put it in your bank
account, and you didn’t pay quarterly estimated tax payments; correct?
A. Yeah, part of my income back in those . . . “we” took some qualified distributions
from IRAs and didn’t pay taxes on that, as well.
Q. And wasn’t that because you were living a lifestyle beyond your means?
A. That could have been part of it.
....
Q. So wouldn’t you agree with me, sir, that the debt issues and your credit crisis
that resulted in [Questar] terminating your contract was your own fault?
A. It was part my fault.
Richard suggested that Christina was also responsible and that they owed back taxes related to tax
years from when they were married.
It is evident that Richard’s credit issues already existed at the time of the divorce. He was
aware of the substantial tax arrearages for which he acknowledged at least partial responsibility.
He agreed to take the marital home in the stipulated property settlement agreement, which states
that it “is anticipated that [Richard] shall sell the house and pay any deficiency related to the sale
and indemnify [Christina] on same.” (Emphasis supplied.) Therefore, at the time of the decree,
Richard was already aware of these two significant obligations, along with other debts he agreed
to pay. Yet, despite Richard’s awareness of his responsibility for these debts, there is nothing in
the record to demonstrate that he acted in good faith to aggressively pay down those debts despite
his earnings of $158,019 in 2016, and his continued earnings through Questar and American Senior
into 2017.
Although the June 29, 2017, termination letter from Questar to Richard informed him in a
nondescript way of an impending termination “for no cause,” Richard’s own testimony gave a
more complete context of the reasons why he lost that job. He described how Questar did not react
positively to his credit report in 2017, and he received the termination letter only “about a week
later” after Questar’s review. He agreed that Questar terminated his contract because of his credit
problems. And part of his credit history apparently problematic in Questar’s view were the “house
and tax -- back taxes” and the “IRS” lien. As discussed above, these were obligations known to
Richard at the time of the decree. And despite significant earnings in 2016, Richard did not present
evidence of how those earnings were spent; in particular, how he used that financially favorable
year to maintain a credit standing he should have known would be necessary for him to keep his
securities licenses active.
Instead of producing evidence to support how his substantial 2016 income had been spent,
Richard provided only his bank records covering January 14 to October 13, 2017. In reviewing
those records, we note the following sampling of expenditures within that timeframe: (1) $2,940
in charges at restaurants or bars; (2) $726 in golf charges; and (3) $15,699 in cash withdrawals.
All the while, Richard rarely paid for his child support and alimony obligations. DHHS Payment
History Reports (exhibits 10 and 11) reflect that as of October 23, 2017, he owed $14,229.09 for
child support and $3,220.50 for alimony. Evidently, at least in 2017, Richard chose to spend a
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great amount of income on other things rather than paying toward debts or court-ordered
obligations. The evidence supports the district court’s assessment that Richard’s own actions,
specifically financial mismanagement, were taken in bad faith and led to his negative credit score
which resulted in the loss of his job at Questar.
Therefore, regardless of whether a material change in circumstances could be established
based on Richard’s earning capacity being diminished by his current inability to use his securities
licenses, we agree with the district court’s alternative determination that even if Richard proved
his income had decreased, it did not justify a modification. It is invariably concluded that a
reduction in child support is not warranted when an obligor parent’s financial position diminishes
due to his or her own voluntary wastage or dissipation of his or her talents and assets and a
reduction in child support would seriously impair the needs of the children. See Fetherkile v.
Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).
Voluntary wastage or dissipation of talents and assets could be imparted from evidence of
Richard’s mismanagement of finances as the true cause of his decrease in income since the entry
of the decree. Richard concedes in his appellate brief that Christina still makes the same amount
of income she made at the time the decree was entered, and at trial Christina indicated that her
parents had to help her accommodate the times when Richard had not provided any support.
Richard did not show evidence to refute that a reduction of child support would seriously impair
the children’s needs. After a de novo review of the record and considering the circumstances of
this case, we conclude the district court did not abuse its discretion by declining Richard’s request
to modify child support.
For the sake of completeness, we note that Richard also argues that if the district court
concluded that no material change had occurred and Richard should still be attributed a monthly
gross income of $8,333, then “[t]he decision to impose a $2,200 per month obligation on [Richard]
was an unjustified deviation [from the guidelines] and an abuse of discretion.” Brief for appellant
at 21. “According to the [guidelines], [Richard’s] obligation ought to be set at $1,607.00.” Id. And
“[t]he court gives no justification for why it imposed an additional obligation.” Id. We first point
out that the district court in the present modification proceedings did not impose any child support
obligation whatsoever; rather, it left intact the parties’ agreement as set forth in their dissolution
decree. Further, any basis for the deviation from the child support worksheets at the time of the
decree should have been reflected in the decree. However, as previously pointed out, the decree
failed to provide any explanation for the deviation at that time. Notably, the parties’ original decree
was prepared by one of the attorneys for the parties, and approved by the other attorney; the same
attorneys represent the parties currently. The decree was submitted to the district court with a
waiver of a final hearing for purposes of having the decree signed and entered by the court. Richard
cannot now complain of an unexplained child support deviation in the present case when he
obviously agreed to the unexplained deviation when the decree was entered. The issue is only
whether a material change in circumstances has occurred since the entry of the decree warranting
a change in the child support obligation agreed upon in the decree, an issue already addressed
above.
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ALIMONY
Richard was ordered to pay alimony of $400 per month for 60 months. On appeal, he argues
that the district court erred when it did not find good cause for a reduction or termination of that
obligation when his income decreased from 2016 to 2017.
Pursuant to Neb. Rev. Stat. § 42-365 (Reissue 2016), alimony orders may be modified or
revoked for good cause shown. See Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009).
Good cause means a material and substantial change in circumstances and depends upon the
circumstances of each case. Metcalf v. Metcalf, supra. Good cause is demonstrated by a material
change in circumstances, but any changes in circumstances which were within the contemplation
of the parties at the time of the decree, or that were accomplished by the mere passage of time, do
not justify a change or modification of an alimony order. Id. The moving party has the burden of
demonstrating a material and substantial change in circumstances which would justify the
modification of an alimony award. Id. To determine whether there has been a material and
substantial change in circumstances warranting modification of a divorce decree, a trial court
should compare the financial circumstances of the parties at the time of the divorce decree with
their circumstances at the time the modification at issue was sought. See id. See, also, Pope v.
Pope, 251 Neb. 773, 559 N.W.2d 192 (1997) (material change of circumstances required to justify
modifications of child support are analogous to good cause requirement necessary to modify
alimony).
A consent decree is usually treated as an agreement between the parties; it is accorded
greater force than ordinary judgments and ordinarily will not be modified over objection of one of
the parties. See Desjardins v. Desjardins, 239 Neb. 878, 479 N.W.2d 451 (1992). As the district
court noted, Richard agreed to the alimony award under the original decree of dissolution.
Christina objects to the proposed change in alimony.
We previously concluded that while Richard’s financial position has changed, it was due
to his own fault by his voluntary wastage and dissipation of his talents and assets. Thus, any
decrease in his income cannot be attributed to good cause. See Pope v. Pope, supra (petition to
modify or terminate alimony will be denied if change in financial condition is due to fault or
voluntary wastage or dissipation of one’s talents and assets). Whether Christina’s income
substantially increased is not in dispute. Given the foregoing, a reduction or termination of
Richard’s alimony obligation was not warranted. The district court did not abuse its discretion in
concluding the same.
ATTORNEY FEES
Richard asserts that the district court awarded attorney fees to Christina without
considering “the results obtained, the services performed, or the length of time required to prepare
and present the case.” Brief for appellant at 22. He alleges that the district court made no finding
that his suit was frivolously filed and did not award fees on the basis that Christina was the
prevailing party. He claims that the award of attorney fees in this case “broke from the custom” of
awarding those fees. Id.
Attorney fees and expenses may be recovered only where provided for by statute or when
a recognized and accepted uniform course of procedure has been to allow recovery of attorney
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fees. Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014). The Nebraska Supreme Court has
recognized that an award of attorney fees is appropriate in an action for modification of a
dissolution decree. See id. Thus, there was authority in this modification action for awarding
attorney fees.
It has been held that in awarding attorney fees in a dissolution action, a court shall consider
the nature of the case, the amount involved in the controversy, the services actually performed, the
results obtained, the length of time required for preparation and presentation of the case, the
novelty and difficulty of the questions raised, and the customary charges of the bar for similar
services. Garza v. Garza, supra.
Customarily in dissolution cases, attorney fees and costs are awarded only to prevailing
parties or assessed against those who file frivolous suits. Schroeder v. Schroeder, 26 Neb. Ct. App.
227, 918 N.W.2d 323 (2018). In an action for modification of a marital dissolution decree, the
award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and
will be affirmed in the absence of an abuse of discretion. Garza v. Garza, supra.
In the district court’s order of modification it found:
[Christina] has no funds with which to pay her attorney. It is clear . . . that [Richard]
does not pay his alimony or child support routinely or on time until [Christina] brings a
contempt action. And while the Court has addressed the contempt matters in a separate
order, the Court is mindful of the history of this case in making its attorney fee award.
We find no abuse of discretion by the district court in awarding attorney fees to Christina.
Richard filed the action to modify the decree barely over a year after it had been entered. Although
Christina was not successful in her counterclaim against Richard, she was successful in defending
Richard’s attempt to reduce his child support and alimony obligations. We cannot say the district
court’s decision to award attorney fees to Christina was an abuse of discretion.
CONCLUSION
We affirm the judgment of the district court.
AFFIRMED.
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