Bowmaker v. Rollman , 29 Neb. Ct. App. 742 ( 2021 )

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BOWMAKER v. ROLLMAN
Cite as 29 Neb. App. 742Andrew K. Bowmaker, appellee, v.
Christine A. Rollman, appellant.
___ N.W.2d ___
Filed April 13, 2021. No. A-20-466.
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. Contempt: Appeal and Error. In a civil contempt proceeding where
a party seeks remedial relief for an alleged violation of a court order,
an appellate court employs a three-part standard of review in which (1)
the trial court’s resolution of issues of law is reviewed de novo, (2) the
trial court’s factual findings are reviewed for clear error, and (3) the trial
court’s determinations of whether a party is in contempt and of the sanc-
tion to be imposed are reviewed for abuse of discretion.
4. Modification of Decree: Attorney Fees: Appeal and Error. 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.
5. Equity: Jurisdiction: Divorce: Child Support. Jurisdiction over
divorces and child support orders are within the equity powers of the
district court.
6. Courts: Equity. Where a situation exists that is contrary to the prin-
ciples of equity and which can be redressed within the scope of judicial
action, a court of equity will devise a remedy to meet the situation.
7. 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
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Cite as 29 Neb. App. 742or previous modification and (2) was not contemplated when the decree
was entered.
8. Modification of Decree: Child Support. The ultimate determination of
child support modification is entrusted to the trial court’s discretion.
9. ____: ____. In determining whether to order a retroactive modification
of child support, a court must consider the parties’ status, character, sit­
uation, and attendant circumstances.
10. 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 date of the
application for modification.
11. Modification of Decree: Child Support. In modification of child sup-
port proceedings, the children and the custodial parent should not be
penalized by delay in the legal process, nor should the noncustodial par-
ent gratuitously benefit from such delay.
12. Child Support: Time. There are circumstances to take into consider-
ation wherein a noncustodial parent may not have the ability to pay
retroactive support in addition to meeting current support obligations.
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 trial court and will be affirmed on
appeal absent an abuse of discretion.
14. Divorce: Child Support. Child support payments become a vested right
of the payee in a dissolution action as they accrue.
15. Judgments: Child Support: Proof. Although a court may not forgive
or modify past-due child support, a court may, on motion and satisfac-
tory proof that a judgment has been paid or satisfied in whole or in part
by the act of the parties thereto, order it discharged and canceled of
record, to the extent of the payment or satisfaction.
16. Child Support. The general rule for support overpayment claims is that
no credit is given for voluntary overpayments of child support, even if
they are made under a mistaken belief that they are legally required.
17. Equity: Child Support. Exceptions are made to the rule that no credit
is given for voluntary overpayment of child support when the equities of
the circumstances demand it and when allowing a credit will not work a
hardship on the minor children.
18. Child Support. Whether overpayments of child support should be cred-
ited retroactively against child support payments in arrears is a question
of law.
19. Appeal and Error. An appellate court has an obligation to reach an
independent conclusion on questions of law.
20. Divorce: Attorney Fees. In awarding attorney fees in a dissolution
action, a court shall consider the nature of the case, the amount
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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.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Justin A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., for
appellant.
John F. Eker III and Barbara J. Prince for appellee.
Riedmann, Bishop, and Welch, Judges.
Bishop, Judge.
I. INTRODUCTION
Christine A. Rollman (Christine) appeals an order of the
Douglas County District Court modifying a Kansas decree
which dissolved her marriage to Andrew K. Bowmaker
(Andrew). She claims several errors in the district court’s han-
dling of matters related to Andrew’s child support obligations,
including the court’s determination that an extrajudicial agree-
ment between the parties precluded finding Andrew in con-
tempt for alleged child support arrearages. She also challenges
the denial of her request for attorney fees. We affirm.
II. BACKGROUND
1. Kansas Decree and
Nunc Pro Tunc Order
Christine and Andrew were married on December 12, 2006.
Their son was born in 2008. On September 3, 2013, they dis-
solved their marriage through a “Decree of Divorce (With
Children)” entered in the district court for Riley County,
Kansas. The decree refers to a May 30, 2013, “Marital
Settlement Agreement” (marital agreement) “marked as
Exhibit 1.” The marital agreement was reviewed and approved
by the court. The decree also referred to a parenting plan,
which the court approved and made part of the decree. Upon
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Cite as 29 Neb. App. 742Christine’s motion, the Kansas court entered an “Order Nunc
Pro Tunc” on November 11, 2018, correcting alleged errone-
ous designations of the parties in the original decree to reflect
the rights and obligations of Christine and Andrew. The nunc
pro tunc order referred to the marital agreement signed on May
30, 2013, and filed on June 20, which was subsequently rati-
fied and confirmed by entry of the September 3 decree. The
court proceeded to identify the errors in that agreement and the
decree and modified both documents accordingly.
As relevant to this appeal, the Kansas court’s initial decree
and marital agreement, along with the modifications made by
the nunc pro tunc order, required Andrew to pay the follow-
ing: $250 per month in child support beginning on September
1, 2013; “a portion equal to [his] percentage of combined
income of any required deductible amount, necessary medical,
or dental expenses of the [parties’ son] that are not covered by
such [health, dental, or hospitalization] insurance”; and “100%
of any secondary educational tuition and/or related expenses
for the [parties’ son].” Both the marital agreement and nunc
pro tunc order specifically provided that Andrew would not
be responsible for “any child care and related expenses above
and beyond the standard monthly child support obligation.”
Our record does not include any child support worksheet or
other document indicating the parties’ combined income at
the time of the Kansas orders. Christine had already moved
from Kansas at the time of the initial decree, and after other
moves, she ultimately resided in Gretna, Nebraska, in October
2016. Andrew also moved to Nebraska in 2016, at some point
after October.
2. Nebraska Proceedings
Christine registered the Kansas decree and nunc pro tunc
order in Nebraska on January 17, 2019; the marital agreement
was not included in that filing. She then filed a complaint to
modify and an application for contempt on February 26. In
her complaint to modify, she alleged that a material change
in circumstances had occurred requiring modification of the
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Cite as 29 Neb. App. 742parties’ child support obligations under the registered decree.
In her contempt pleading, she alleged that Andrew had failed to
pay child support without justification and owed her “the sum
of $16,000 through January 1, 2019.”
(a) Trial Commences February 14, 2020
Trial commenced on February 14, 2020, and at the onset,
the district court noted for the record that the court “had a
long discussion with the attorneys . . . regarding the issues
in this case” and that the parties reached an agreement as to
certain matters. An agreed-upon parenting plan and a child
support calculation were received as evidence. It was agreed
the incomes reflected in the child support calculation would be
used, but that values for retirement plans attributed to the par-
ties had to be deleted and the calculation revised. Christine was
to carry health insurance for their son, and as for non­covered
medical expenses, Christine would pay the first $250 per cal-
endar year, after which the parties would split the noncovered
medical costs based on their percentages under a revised child
support calculation. Those same percentages would be used for
dividing childcare expenses. The parties also agreed to equally
split their son’s private school tuition costs through the eighth
grade. The court orally approved the parties’ agreement and
parenting plan. At the conclusion of this hearing, the court
noted that the issues remaining were “what, if anything, the
[child support] arrearage is, whether there should be . . . retro-
active child support and what that should be, and then if attor-
ney[] fees” should be awarded. Andrew’s attorney then raised
the issue of alternating the tax exemption for the parties’ son as
set forth in the decree, but which Christine had claimed every
year. The court deferred that issue until after a determination
was made as to arrearages.
(b) Continuation of Trial and
Motion to Set Aside Agreement
Trial continued on February 26, 2020. Christine and
Andrew offered their testimony and other exhibits relating to
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Cite as 29 Neb. App. 742financial matters to address the remaining issues. Trial had to
be continued again to complete Andrew’s testimony and was
ultimately rescheduled for June 2. On May 29, prior to the June
2 hearing, Andrew filed a motion to set aside the agreed-upon
parenting plan and a notice that he was “no longer willing to
have his child support based on” the income set forth in the
agreement approved by the district court on February 14. At
the June 2 hearing, further testimony and evidence relating to
Andrew’s financial situation and relationship with the parties’
son was adduced, which we will set forth more fully later in
this opinion.
(c) District Court’s Announcement
of Decision and Order
On June 12, 2020, the parties returned for the district court’s
announcement of its decision. The court found there had been
no “material change of circumstances as to the agreement with
regard to the parenting plan.” As for child support, the court
concluded there had been a material change of circumstances
since trial commenced. It noted that “obviously, because of the
COVID-19 issues there has been a material change of circum-
stances with regard to [Andrew’s] child support obligation.”
“As such, the Court is going to allow [Christine] if she wants
to do additional discovery as to [Andrew’s] income.” The court
informed Christine’s attorney that he could continue the matter
for additional evidence. Meanwhile, the court was imputing an
income of $65,000 per year to Andrew for child support pur-
poses, and it ordered the revised child support to be effective
as of March 1. Further, the court announced that there were
“no child support arrears. The parties had an agreement.” The
court pointed out the parties’ agreement that in lieu of child
support, Andrew would pay Christine “the tuition and whatever
else request that was made by [Christine], which could be for
health reasons, for additional money, things of that nature.”
The court announced that Andrew would be allowed to claim
the tax exemption for the parties’ son for the 2020 and 2021
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cated that it was “leaving the record open” and that it was up
to Christine’s counsel whether additional discovery was needed
as to Andrew’s income. “So the child support is temporary at
this time unless you guys agree to it [being] permanent. If you
can’t agree to [it being] permanent, then we’ll set another trial
date as to the child support.” Christine’s lawyer indicated he
needed to discuss that with Christine.
On June 17, 2020, the district court entered an “Order of
Modification” consistent with the findings announced from
the bench on June 12. The court again noted that Christine
“was not provided enough notice with regard to the Motion
to Set Aside” and granted her “leave to conduct additional
discovery regarding [Andrew’s] income.” The court ordered
Andrew to pay $631 per month in child support retro­active
to March 1. Andrew was also ordered to pay 56 percent of
daycare expenses, 56 percent of noncovered medical expenses
after Christine paid the first $250 of such expenses, and
50 percent of “any private school tuition fees incurred on
behalf of the [parties’ son] through the eighth grade.” Andrew
was granted the right to claim the tax exemption for the par-
ties’ son on his returns for the tax years 2020 and 2021 and
each odd-numbered year thereafter. The court further dis-
missed the contempt matter, finding there to be “no child sup-
port arrearage” because Christine and Andrew “had a private
agreement regarding [Andrew’s] payment of child support to
[Christine].” The court did not award attorney fees to either
party. All other terms from the original decree not specifi-
cally modified by the court’s order remained in full force
and effect.
Christine timely appealed.
III. ASSIGNMENTS OF ERROR
Christine claims, condensed and restated, that the district
court erred in (1) setting aside the parties’ agreements regard-
ing child support and tax exemptions; (2) making Andrew’s
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1 year earlier; (3) finding no child support arrearage, as a
result of the parties’ extrajudicial agreement regarding child
support, and thus dismissing the contempt action; and (4) fail-
ing to award Christine attorney fees.
We note, however, that Christine does not specifically argue
any error regarding the district court’s allocation of tax exemp-
tions, and we therefore decline to address it. See Dycus v.
Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020) (to be consid-
ered by appellate court, party asserting alleged error must both
specifically assign and specifically argue it).
IV. 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.[3] In a civil contempt proceeding where a party seeks reme-
dial relief for an alleged violation of a court order, an appellate
court employs a three-part standard of review in which (1) the
trial court’s resolution of issues of law is reviewed de novo, (2)
the trial court’s factual findings are reviewed for clear error,
and (3) the trial court’s determinations of whether a party is in
contempt and of the sanction to be imposed are reviewed for
abuse of discretion. McCullough v. McCullough, 299 Neb. 719,
910 N.W.2d 515 (2018).
[4] 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).
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Cite as 29 Neb. App. 742V. ANALYSIS
1. Prospective Child Support Agreement
Christine contends the district court abused its discre-
tion in setting aside the parties’ agreement related to income
figures to be used for calculating child support. That agreement
was approved by the district court on February 14, 2020, prior
to the continuation of trial. The agreement provided that for
the purpose of calculating Andrew’s child support obligation,
Andrew was agreeing to be imputed an income of $8,333 per
month or approximately $100,000 per year because of his earn-
ing history, even though his present annual salary was $65,000.
Based upon this figure, Andrew’s child support payments were
calculated to be $872 per month. In his testimony given on
February 26, Andrew affirmed that this amount matched his
understanding of the agreement.
Then, on May 29, 2020, Andrew moved the court to set aside
this agreement, just before the continuation of trial scheduled
for June 2. He asked the court to take into consideration the
“significant downturn in his business and his income.” He
requested that his child support obligation be based on his
yearly salary of $65,000, rather than the imputed $100,000
annual income agreed upon previously.
Prior to when Andrew started a business with his brother-
in-law in December 2019, the joint tax returns of Andrew and
his current wife showed a combined gross income of $123,867
for 2017 and $121,380 for 2018. Andrew did not provide a
tax return for 2019 or other tax documentation, stating that
his accountant had his W-2 wage and tax statement and that
he was “waiting for a K-1 from 2019” in order to complete
his 2019 tax return. Andrew testified his annual income was
approximately $105,000 at the time Christine filed her com-
plaint to modify in February 2019. However, he was laid off
later that year in September or October, and was unemployed
until December, when he and his brother-in-law started a
business, Summit Metal Recycling Inc. (Summit). As joint
owners, Andrew and his brother-in-law had the authority to
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Cite as 29 Neb. App. 742divide the corporation’s profits. The only salaried employees
of Summit were Andrew and his current wife. The statements
of earnings provided to the district court initially reflected an
annual salary of $100,000 in January 2020, but beginning in
February, his income was adjusted to reflect an annual salary
of $65,000. Despite this reduction, Andrew agreed to have his
income imputed at $100,000 per year “because of the history
of having a job working $100,000 and just trying to do the
right thing.”
However, upon continuation of trial, Andrew subsequently
testified that the coronavirus pandemic severely impacted his
business, saying that “[t]he Coronavirus has basically wiped
out [his] customer base.” He stated that his wife was no ­longer
working as an employee of Summit because he “couldn’t
afford her anymore” despite receipt of $147,000 from his
brother-in-law as an investment in the corporation. He also
received a loan of $33,000 from the “payroll protection” pro-
gram established by the “CARE[S] Act” after his wife was
furloughed to cover payroll expenses. Even with these loans,
Andrew affirmed that he was “struggling to pay” his $65,000
salary. With respect to Summit’s finances, Andrew offered a
profit-and-loss statement reflecting the monthly profits and
losses of Summit through May 2020. This statement indicated
that from January through May, Summit experienced a net
loss of $107,169.91, although we note a total of $35,000 in
expenses classified as “Owner Distribution.”
Christine asserts the district court abused its discretion
in setting aside the agreement the parties had reached at the
beginning of trial which established the figures to be used
in the calculation of Andrew’s child support obligation. She
argues in part that “setting aside agreements made on the
record in the middle of a trial is contrary to the public policy
on settlements.” Brief for appellant at 25. It is true that our
public policy favors the settlement and compromise of dis-
putes. See Holoubek v. Romshek, 16 Neb. App. 677, 749
N.W.2d 901 (2008). There is no dispute the parties came to
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day of trial, regarding the parenting plan and the figures to
be used in calculating Andrew’s child support obligation. The
record also plainly demonstrates the parties agreed the only
disputes remaining after that same hearing were “the possibil-
ity of retro­active child support, the arrearages with regard to
the contempt on child support, and attorney[] fees.” Andrew’s
dispute over his imputed income also came well after the dis-
trict court entered its scheduling order.
[5,6] However, despite the court’s initial approval of the
parties’ agreement, the court did not enter an order incorporat-
ing the income figures into the calculation of child support,
because the trial was continued for further hearing. Proceedings
were still ongoing at the time Andrew filed his notice on May
29, 2020, and the final trial date did not take place until June
2. With the case still pending, it remained in the court’s equi-
table power to consider the unexpected financial circumstances
caused by the coronavirus pandemic when deciding whether or
not to set aside the parties’ earlier agreement. See Drennen v.
Drennen, 229 Neb. 204, 426 N.W.2d 252 (1988) (jurisdiction
over divorces and child support orders within equity powers of
district court). And “[w]here a situation exists that is contrary
to the principles of equity and which can be redressed within
the scope of judicial action, a court of equity will devise a
remedy to meet the situation.” Yori v. Helms, 307 Neb. 375,
387, 949 N.W.2d 325, 336 (2020). We find no abuse of dis-
cretion in the court’s remedy here, which was its decision to
set aside the parties’ earlier agreement regarding Andrew’s
imputed income due to the unusual intervening circumstances
and evidence brought to the court’s attention before the case
was fully submitted.
Christine claims, however, that equity requires enforcement
of the agreement, as Andrew provided very little notice and
“it would simply waste the money the parties spent on their
attorneys to secure those agreements” over the “one year and
four months” Christine has waited “to see the benefit of her
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Cite as 29 Neb. App. 742bargain.” Brief for appellant at 30. She argues that setting
aside the agreed upon child support figures caused her ineq-
uity through her being “‘blindsided’” by Andrew’s dispute
and being denied “the benefit of her bargain” paid for by
her time and attorney fees. Id. While we can appreciate her
argument, we cannot ignore or discount the unforeseeable
impact the coronavirus pandemic has caused throughout 2020
and into the present. At the time of the parties’ agreement in
February 2020, the true extent of the coronavirus’ economic
effects on businesses was neither fully known nor anticipated.
In addition, to balance out Andrew’s late dispute over his
imputed income, the district court provided Christine leave
to pursue additional discovery regarding Andrew’s finances
and ordered the child support award to be “temporary . . .
unless [she] agree[d] to it permanent[ly].” Christine chose not
to pursue that option, electing instead to accept and directly
appeal the district court’s order. We do not see the court’s
decision to set aside the agreement and give Christine leave
to conduct additional discovery to be, as Christine character-
izes it, an invitation “for endless litigation on matters that had
been resolved before the trial . . . even began.” Id. Rather,
the court’s decision recognized the extraordinary circum-
stances that materialized over the course of this action and
attempted to balance the equities accordingly. In light of the
coronavirus pandemic and the options for further discovery
made available to Christine, the district court’s decision not to
enforce the parties’ earlier agreement did not cause inequity
to Christine.
[7,8] While Christine contests the district court’s character-
ization of the coronavirus pandemic as an independent mate-
rial change in circumstances to set aside the agreement, we
note this characterization was not necessary. 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,
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Cite as 29 Neb. App. 742307 Neb. 275, 948 N.W.2d 768 (2020). Both Christine and
Andrew have agreed that a material change in circumstances
occurred to justify the district court’s modification of the origi-
nal decree, and the district court found the same. However,
the ultimate determination of child support modification is
entrusted to the trial court’s discretion. See Windham v. Kroll,
307 Neb. 947, 951 N.W.2d 744 (2020).
Christine also asserts that the evidence and testimony
offered by Andrew regarding his income and the financial
health of Summit “should be viewed with some suspicion.”
Brief for appellant at 33. She contends “[t]here was no cred-
ible evidence” regarding Andrew’s financial situation or the
effect of the coronavirus pandemic on his downturn in busi-
ness to justify the district court’s decision to set aside the
figures for child support agreed to by the parties. Id. at 34.
Andrew testified that his salary was $65,000 per year at the
time of the parties’ agreement in February 2020, but that
he agreed to have his income imputed at $100,000 because
he hoped to return to that level of income. However, his
statements of income indicate his monthly income remained
consistent with an annual salary of $65,000 through May
2020. Additionally, the profit-and-loss statement shows that
in the first 5 months of 2020, Summit sustained a profit of
$48,887.20 in January, a loss of $159,069.28 in February,
a loss of $4,844.90 in March, a profit of $16,013.22 in
April, and a loss of $8,156.15 in May. These figures totaled
a net loss of $107,169.91. Christine further points out that
Summit’s “Payroll Expense is already $53,916.68 through
May 29, 2020,” despite the fact that Andrew is the only
employee after he furloughed his wife earlier in 2020. Brief
for appellant at 33. The profit-and-loss statement also indi-
cates expenses labeled “Cash In” totaling $8,800 and “Owner
Distribution” of $5,000 and $10,000 in April and May 2020.
Christine highlights that “simple math dictates that there
would have been a profit [in May 2020] had there not been an
owner distribution of $10,000.00.” Id. at 34.
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Cite as 29 Neb. App. 742We note that many of the issues raised by Christine stem
from Andrew’s changed position regarding his imputed income
and Christine’s subsequent election to accept the district court’s
order as final to pursue this appeal rather than engage in fur-
ther discovery. Christine did not question Andrew for expla-
nations of the discrepancies she now identifies on appeal or
the extent of the coronavirus pandemic’s effect on Summit’s
scrap metal business; nor did she seek any of Summit’s bal-
ance sheets, bank account statements, or other documentation
of Summit’s financial health after the district court granted
leave for additional discovery. As we have already described,
these matters were open to further exploration and examination
through the court’s decision to grant Christine leave to conduct
additional discovery.
The record before us reflects an essentially unchallenged
presentation of evidence regarding Andrew’s finances, although
Christine now uses this appeal to highlight the incomplete-
ness of the record and inconsistencies in that evidence. We
are mindful that where the evidence is in conflict, an 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. See Tilson v. Tilson,
307 Neb. 275, 948 N.W.2d 768 (2020). Here, the trial court
accepted Andrew’s evidence and found him credible. Despite
being given the opportunity to do so, Christine neither chal-
lenged that evidence at trial nor pursued additional discovery
to contest Andrew’s characterization of Summit’s financial
health. Given these circumstances, we find the district court
did not abuse its discretion in ordering Andrew’s income to
reflect an annual salary of $65,000.
2. Retroactive Child Support
Christine also claims on appeal that the district court abused
its discretion in setting Andrew’s retroactive child support to be
effective as of March 1, 2020, rather than a year earlier, follow­
ing the filing of her complaint to modify in February 2019.
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Cite as 29 Neb. App. 742[9-13] In determining whether to order a retroactive modifi-
cation 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.Generally, the children and the custodial parent should not be
penalized by delay in the legal process, nor should the non-
custodial parent gratuitously benefit from such delay. See id.However, there are circumstances to take into consideration
wherein the noncustodial parent may not have the ability to
pay retroactive support in addition to meeting current support
obligations. Roberts v. Roberts, 25 Neb. App. 192, 903 N.W.2d
267 (2017). The initial determination regarding the retroactive
application of a modification order is entrusted to the discre-
tion of the trial court and will be affirmed on appeal absent an
abuse of discretion. Id.Christine claims the district court abused its discretion
because Andrew failed to prove he was unable to pay the modi-
fied child support retroactively to March 2019. She asserts that
Andrew “did not give credible testimony,” brief for appellant
at 35, and “refused to provide any documentation to verify he
could not pay retroactive child support and still meet his cur-
rent obligations,” specifically identifying that Andrew “never
showed any documents to verify that he lost 30 percent to one-
third of his income” and “refused to provide income tax infor-
mation,” id. at 36. She argues that the district court erred when
it “took his word at face value, even though his testimony was
proven incorrect.” Id.
We have previously described Andrew’s testimony and the
evidence regarding his income and Summit’s financial health.
As noted previously, the district court found Andrew’s testi-
mony and evidence to be credible concerning his ability to
pay retroactive child support. Based on the record before us,
and giving weight to the fact that the trial court heard and
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cretion in setting Andrew’s modified child support obligation
to commence on March 1, 2020.
3. Child Support Arrearage
Christine contends the district court erred when it found
Andrew not to be in contempt due to Andrew’s payment of
certain expenses in lieu of child support pursuant to an extra­
judicial agreement between Christine and Andrew.
In a civil contempt proceeding where a party seeks remedial
relief for an alleged violation of a court order, an appellate
court employs a three-part standard of review in which (1) the
trial court’s resolution of issues of law is reviewed de novo, (2)
the trial court’s factual findings are reviewed for clear error,
and (3) the trial court’s determinations of whether a party is in
contempt and of the sanction to be imposed are reviewed for
abuse of discretion. McCullough v. McCullough, 299 Neb. 719,
910 N.W.2d 515 (2018). Accordingly, we will first consider
whether the parties’ agreement for payments in lieu of child
support was legally permissible, thus allowing credits against
the child support owed. We will then consider whether any of
the district court’s factual findings related to the credits were
clearly erroneous. Finally, we will consider whether the court
abused its discretion when it concluded Andrew was not in
contempt and dismissed the contempt action.
(a) Payments for Expenses in
Lieu of Child Support
[14,15] As a precursor to our analysis, we are mindful that
child support payments become a vested right of the payee
in a dissolution action as they accrue. See Ybarra v. Ybarra,
28 Neb. App. 216, 943 N.W.2d 447 (2020). Also, a court
may not forgive or modify past-due child support. Dartmann
v. Dartmann, 14 Neb. App. 864, 717 N.W.2d 519 (2006).
However, a district court may, on motion and satisfactory
proof that a judgment has been paid or satisfied in whole or in
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Cite as 29 Neb. App. 742part by the act of the parties thereto, order it discharged and
canceled of record, to the extent of the payment of satisfac-
tion. Id. However, in this case, Andrew did not motion the
district court to discharge his child support obligation under
the Kansas decree, and the district court did not order that
obligation discharged. The issue of Andrew’s arrearages was
raised by Christine’s contempt action, and the district court’s
order solely concerned whether or not Andrew was in con-
tempt of his obligation under the Kansas decree. Our review is
likewise limited to whether the district court abused its discre-
tion in dismissing the contempt matter.
[16-19] In considering the question of contempt, we address
whether the voluntary payments made by Andrew outside the
terms of the Kansas court’s orders can be credited against
Andrew’s child support obligation. Nebraska courts have
allowed the granting of a credit against child support arrear-
ages in certain circumstances. See, e.g., Berg v. Berg, 238 Neb.
527, 471 N.W.2d 435 (1991) (affirming credit given against
father’s child support arrearage for period when father had
two of four children in his possession and continued paying
mother full child support amount); Speicher v. Speicher, 6
Neb. App. 439, 572 N.W.2d 804 (1998) (affirming trial court’s
order offsetting father’s child support arrearage with his inter-
est in marital home). A voluntary overpayment of child support
occurs when a party pays above and beyond what is required
by a child support order. In Nebraska, the general rule for
support overpayment claims is that no credit is given for vol-
untary overpayments of child support, even if they are made
under a mistaken belief that they are legally required. Jameson
v. Jameson, 13 Neb. App. 703, 700 N.W.2d 638 (2005). See,
also, Johnson v. Johnson, 290 Neb. 838, 862 N.W.2d 740(2015); Palagi v. Palagi, 10 Neb. App. 231, 627 N.W.2d 765(2001). However, exceptions to this general rule are made
when the equities of the circumstances demand it and when
allowing a credit will not work a hardship on the minor chil-
dren. See Jameson v. Jameson, supra. Whether overpayments
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support payments in arrears is a question of law. Palagi v.
Palagi, supra. An appellate court has an obligation to reach an
independent conclusion on questions of law. Id.We conclude that the equities of the present case demand
allowing certain credits for Andrew’s payments and that allow-
ing such credits will not work a hardship on the parties’ son,
the one minor child in this case. Notably, Andrew did not
unilaterally modify the Kansas court’s order; rather, the par-
ties mutually agreed to Andrew’s payment of expenses in lieu
of child support payments. The district court determined there
was no arrearage in child support because “the parties had
a private agreement regarding [Andrew’s] payment of child
support to [Christine].” In finding no arrearages, the court
described that Andrew “was supposed to pay the tuition and
whatever [other] request that was made by [Christine], which
could be for health reasons, for additional money, things of
that nature.”
Of significance, the record before us includes a copy of a
bankruptcy petition filed by Christine in 2017 and accompany-
ing schedules dated in August of that year. This petition, signed
by Christine, included the following declaration:
[Christine] is entitled to receive $250.00/month in child
support per her divorce decree. However, [Christine]
states that in lieu of paying child support, her ex-husband
contributes to half of their son’s medical, school tuition,
and childcare expenses. [Christine] states that she is not
owed any arrearages based on this agreement.
An attached schedule to the bankruptcy petition estimated that
Andrew paid approximately $300 per month. At trial, Christine
characterized this agreement as an “understanding” that “hap-
pened . . . over time.” She claimed that she and Andrew never
“truly said, like, in lieu of [child support,] . . . [b]ut that’s
what it turned into.” She affirmed that she understood these
payments to be in lieu of child support and believed Andrew
to understand the same. Several exhibits evidenced direct
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Cite as 29 Neb. App. 742payments made by Andrew to Christine through other means,
including by cash, check, and online payments.
As described previously, the Kansas decree and subsequent
order nunc pro tunc required Andrew to pay $250 per month
in child support through the Kansas child support payment
center. He was also to pay “a portion equal to [his] percent-
age of combined income of any required deductible amount,
necessary medical, or dental expenses of the [parties’ son]
that are not covered by . . . insurance[,]” and “100% of any
secondary educational tuition and/or related expenses for the
[parties’ son].” The order did not impose an obligation on
Andrew for primary school tuition or daycare expenses, yet
he contributed to these and other expenses upon Christine’s
request. Christine primarily contests the crediting of private
school tuition and medical costs against Andrew’s child sup-
port obligation.
(i) Private School Tuition Expenses
Christine contends that it was the parties’ mutual decision
that their son should attend a private school and that therefore,
allowing Andrew to be credited for his half of tuition payments
caused “the tuition costs, in effect, [to fall] 100 percent on”
her. Brief for appellant at 38. She asserts that the tuition pay-
ments should be treated as voluntary overpayments of child
support and that no credit should be given against Andrew’s
child support obligation for his half of their son’s tuition.
We note that this court has previously rejected a father’s
request for a credit against his child support for his pay-
ments toward his daughter’s university expenses. See Palagi
v. Palagi, 10 Neb. App. 231, 627 N.W.2d 765 (2001). In doing
so, this court found the father “knowingly and voluntarily paid
these additional large expenses in spite of [the mother’s] dec-
lination to ‘accept’” the payments in lieu of child support. Id.
at 242, 627 N.W.2d at 774. Further, we described the father as
“predisposed all along to fund [his daughter’s] education.” Id.Christine suggests that the “rule in Palagi should be applied
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Cite as 29 Neb. App. 742to the case at bar, because the parties made a joint decision to
enroll [their son] in a private school with tuition expenses.”
Brief for appellant at 39. However, we find the existence of
the parties’ agreement that Andrew would pay tuition, along
with other expenses paid in lieu of child support which he was
not court ordered to pay, distinguishes this case from Palagi v.
Palagi, supra. The equities in this case favor the allowance of
a credit for the tuition payments against Andrew’s child sup-
port obligation.
(ii) Medical Expenses
As for Andrew’s contribution to medical expenses in the
amount of $1,075.87, we agree with Christine that the origi-
nal Kansas decree obligated Andrew to pay some percentage
of uncovered medical expenses and that “obligation . . . is
separate and in-addition-to the child support obligation.” Brief
for appellant at 38. Since Andrew was obligated under the
Kansas decree to pay for such expenses in addition to child
support, any payments made for such expenses should be dis-
regarded in determining credits for child support. To the extent
Andrew may have underpaid or overpaid his share of such
expenses based upon his percentage of the parties’ combined
income, we are unable to consider the same, since our record
does not include any figures concerning the parties’ combined
income at the time of the Kansas decree. We conclude these
payments should not be credited against Andrew’s child sup-
port obligation.
(iii) Other Payments
Regarding all other payments, the record provides little
description of their intended purpose or eventual use. Christine
indicated in her testimony that Andrew would pay her varying
amounts at different times after the entry of the Kansas decree,
lower than the required $250 per month. She described that
Andrew would pay a share of certain other bills and expenses,
such as daycare, while also occasionally giving her cash when
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have previously described, we find that to any extent these
payments constituted overpayments of child support, Andrew
should be credited for these payments as well.
(b) Factual Determinations
Related to Credits
At $250 per month, Andrew’s obligation under the original
child support order totaled $19,500 when accounting for the
78 months from September 2013, when the Kansas decree
was entered, until March 1, 2020, when the modified child
support became effective. At trial, Christine offered a certi-
fied copy of the records maintained at the Kansas child sup-
port payment center that indicated Andrew made no payment
of child support through that payment center. In finding no
arrearages, the district court described that Andrew “was sup-
posed to pay the tuition and whatever [other] request that was
made by [Christine], which could be for health reasons, for
additional money, things of that nature.” As discussed previ-
ously, to the extent the district court’s reference to “health
reasons” included medical payments made by Andrew in its
consideration of credits against child support, it was error to
do so.
A spreadsheet summarizing Andrew’s direct payments
to Christine from September 3, 2013, through June 29,
2019, totaled $13,887.44. Included in these payments were
$1,075.87 paid by Andrew for half of their son’s uncovered
medical expenses and $4,080 for half of his private primary
school tuition. In addition to these payments, Christine and
Andrew testified that Andrew at times made cash payments to
Christine, although Christine conceded that she did not “know
how much [Andrew] paid [her] in cash.” Our record includes
an estimation providing that from September 2013 until an
unspecified month in 2019, Andrew paid approximately
$3,300 to Christine in cash. In addition to this cash amount,
the estimation includes an asserted $500 credit for 2 months in
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Cite as 29 Neb. App. 7422019 when the parties’ son lived with Andrew; the doc­ument
reflects a sum totaling $3,800. Finally, beginning August
4, 2019, and continuing through February 9, 2020, Andrew
made direct online payments to Christine totaling $2,550.
Combined, Andrew paid Christine approximately $20,237.44
from September 2013 until March 1, 2020. When subtracting
out the $1,075.87 paid for medical expenses, Andrew paid
Christine approximately $19,161.57 for their son’s expenses in
lieu of child support.
(c) Contempt
We turn now to the question of whether the district court
abused its discretion by finding Andrew was not in contempt
of the parties’ decree and in dismissing the contempt matter
against him. Accounting for credits permitted, we have deter-
mined that Andrew paid $19,161.57 in various expenses that
the district court could properly credit against Andrew’s child
support obligation of $19,500, which would have accrued from
September 1, 2013, until March 1, 2020. Deducting Andrew’s
payments from the child support obligation results in a deficit
of $338.43.
Here, as we have previously noted, we are determining only
whether the district court abused its discretion in concluding
Andrew was not in contempt of court related to his child sup-
port obligation under the Kansas decree. Therefore, in addition
to our own math calculation set forth above, we are also mind-
ful that as of August 2017, Christine averred in her bankruptcy
documents that no child support arrearage existed at that point
in time. So, when considering the timeframe from September
2017 until March 1, 2020 (30 months), child support of $7,500
would have accrued under the Kansas decree. Undisputed
evidence shows Andrew paid $7,826.98 to Christine during
that timeframe. Accordingly, we cannot say the district court
abused its discretion in concluding Andrew was not in con-
tempt of the Kansas court’s child support order and in dismiss-
ing Christine’s contempt action.
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Cite as 29 Neb. App. 7424. Attorney Fees
Christine asserts that the district court abused its discretion
in not awarding her attorney fees.
[20] In an action for modification of a marital dissolution
decree, the award of attorney fees is discretionary with the
trial court and will be affirmed in the absence of an abuse of
discretion. See Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626(2014). It has been held that in awarding attorney fees in a dis-
solution 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 dif-
ficulty of the questions asked, and the customary charges of the
bar for similar services. Id.Christine argues that Andrew “treated [her] unfairly and
inequitably during the proceedings” when he “failed to respond
to certain discovery requests” yet was “permitted to testify
about his reasons that he should not pay retroactive child sup-
port and a possible arrearage.” Brief for appellant at 43. She
claims that this permitted Andrew to “unfairly surprise [her]
with his testimony and documents” while “the issues became
moving targets.” Id. She further highlights the difference in
income and earning capacity between herself and Andrew.
Christine offered an affidavit as to her outstanding attorney
fees, indicating that she incurred $9,383.05 in fees for trial
preparation and would incur additional fees for trial.
As set forth above, we did not find inequity in the district
court’s handling of the issues regarding Andrew’s income and
general financial health. The economic effects of the corona-
virus pandemic provided sufficient justification for the district
court to reopen the calculation of Andrew’s child support obli-
gation. The court granted Christine leave to conduct further
investigation into Andrew’s claim about the adverse finan-
cial impact of the coronavirus pandemic; however, Christine
elected to pursue this appeal instead. Based on the record
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in not awarding Christine attorney fees in this case.
VI. CONCLUSION
Although we conclude the district court erred to the extent
it may have included Andrew’s payment of medical expenses
for the parties’ son in its consideration of credits to be applied
to Andrew’s child support obligation, we nevertheless find the
record supports the court’s ultimate conclusion that no child
support arrearage existed based upon the parties’ private agree-
ment. Therefore, the court did not abuse its discretion in find-
ing Andrew was not in contempt of the Kansas court’s child
support order and in dismissing the contempt action. We also
find no error in the court’s decision related to child support
prospectively and retroactively, nor in its decision declining to
award attorney fees to either party. The district court’s June 17,
2020, modification order is affirmed.
Affirmed.