Garza v. Garza ( 2014 )

Nebraska Advance Sheets
GARZA v. GARZA 213
Cite as 288 Neb. 213Donna L. Garza, now known as Donna L. Faust Aman,
appellee and cross-appellant, v. Arturo Garza,
appellant and cross-appellee.
___ N.W.2d ___
Filed May 23, 2014. No. S-13-606.
1. Modification of Decree: Child Support: Appeal and Error. 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. The same standard applies to the modifica-
tion of child support.
2. Modification of Decree: Attorney Fees: Appeal and Error. In an action for
modification of a marital dissolution decree, the award of attorney fees is dis-
cretionary with the trial court, is reviewed de novo on the record, and will be
affirmed in the absence of an abuse of discretion.
3. Attorney Fees. Attorney fees and expenses may be recovered only where pro-
vided for by statute or when a recognized and accepted uniform course of proce-
dure has been to allow recovery of attorney fees.
4. ____. Customarily, attorney fees are awarded only to prevailing parties or
assessed against those who file frivolous suits.
5. Divorce: Attorney Fees. A uniform course of procedure exists in Nebraska for
the award of attorney fees in dissolution cases.
6. ____: ____. In awarding attorney fees in a dissolution action, a court shall con-
sider the nature of the case, the amount involved in the controversy, the services
actually performed, the results obtained, the length of time required for prepa-
ration 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: Gary B.
Randall, Judge. Affirmed.
Wendy J. Ridder, of Law Offices of Daniel P. Bracht, P.C.,
L.L.O., for appellant.
Benjamin M. Belmont, of Brodkey, Peebles, Belmont &
Line, L.L.P., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Heavican, C.J.
I. INTRODUCTION
Arturo Garza filed an application to modify child sup-
port and parenting time. The district court found a material
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change in circumstances, made certain changes to the parties’
parenting time, and reduced Garza’s child support obligation.
Garza appeals, and Donna L. Garza, now known as Donna L.
Faust Aman (Faust Aman), cross-appeals. We affirm.
II. BACKGROUND
Garza and Faust Aman were married in July 2005. The par-
ties separated in December of that same year, and Faust Aman
filed for divorce on December 22. One child, a son, was born
of the marriage in December 2005, after Faust Aman filed
for divorce. A decree and parenting plan was entered on May
2, 2007.
The original decree and parenting plan awarded sole primary
and legal custody to Faust Aman. As relevant to the current
application for modification, Garza was awarded alternating
weekend visitation and was ordered to pay $500 per month in
child support.
In approximately February 2010, Garza, who had been
unemployed, moved from Omaha, Nebraska, to Lenexa,
Kansas, to take a new job. On February 2, 2012, Garza filed
an application, and later an amended application, for modifica-
tion of the decree and parenting plan, alleging that his move to
Kansas was a material change in circumstances. On March 2,
Faust Aman filed an answer; on March 5, she filed a motion
for an order to show cause why Garza should not be held in
contempt of court for “willfully and contemptuously violating
the terms and conditions of the Decree of Dissolution.”
Following a hearing, Garza was found in contempt because
he owed Faust Aman $7,683.89 in child support, $10,601 for
childcare expenses, and $31,000 for the divorce property settle-
ment. Garza was allowed to purge the contempt by paying
$3,000 in child support; being current in his payments of child
support and childcare expenses when making his regular pay-
ments in April, May, and June; and paying attorney fees. Garza
was purged of the contempt on May 7, 2012.
In the midst of the contempt proceedings, on or about March
30, 2012, Garza was laid off from his job. On September 12,
Garza filed a second amended application for modification.
He alleged a material change in circumstances for various
Nebraska Advance Sheets
GARZA v. GARZA 215
Cite as 288 Neb. 213reasons, notably his relocation to Lenexa, the fact that the
minor child was now school age, Faust Aman’s new job, and
the loss of his job.
Garza was still out of work at the time of the trial on his
application for modification. Garza testified that he had been
looking for a job since he was laid off and testified that he
had searched in Lenexa, Omaha, and surrounding areas. Garza
testified that he was willing to take a job in a field other than
his chosen field of medical equipment planning and that he had
even applied for food services jobs, all to no avail.
Garza has numerous complaints about Faust Aman and his
access to their son. As relevant to this appeal, Garza com-
plains that after moving to Lenexa, he asked Faust Aman on
more than one occasion to transport their son to Mound City,
Missouri, or roughly halfway between Omaha and Lenexa,
so that Garza could exercise his visitation. But Faust Aman
informed Garza that she was “‘not able to meet [him] half-
way.’” She testified that oftentimes, she could not meet with
her “upper management” until late in the day, and that there-
fore, she was not able to leave work early on Friday afternoons
on a regular basis.
Following trial on the application for modification, the
district court found Garza’s move to Kansas was a material
change in circumstances. But the district court noted that
the move on Garza’s part was voluntary. As such, it denied
Garza’s request that Faust Aman should have to transport
the couple’s son to the halfway point for visitation so long
as Garza remained unemployed, but granted his request for
transportation under limited circumstances once Garza was
again employed. Specifically, once Garza was again employed,
Faust Aman would be required to meet Garza at a location
chosen by the parties, but only for the return trip on the last
alternating weekend visitation of a month when that visitation
ended on a Sunday.
Garza’s request to lower his child support obligation to the
minimum $50 per month payment was denied. The district
court did lower his child support obligation from $500 to $305
per month.
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Finally, Garza was ordered to pay Faust Aman attorney fees
of $2,500, due when he was again employed. Garza’s request
for attorney fees was denied.
Garza appeals, and Faust Aman cross-appeals.
III. ASSIGNMENTS OF ERROR
On appeal, Garza assigns, restated and renumbered, that the
district court erred in (1) splitting transportation for visitation
as it did, (2) calculating the reduction in Garza’s child support
obligation, and (3) awarding Faust Aman attorney fees.
On cross-appeal, Faust Aman assigns, consolidated, that
the district court erred in reducing Garza’s child support
obligation.
IV. STANDARD OF REVIEW
[1] 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.1 The same standard applies to
the modification of child support.2
[2] 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.3
V. ANALYSIS
Three issues are presented by this appeal: (1) visitation
transportation, (2) child support, and (3) attorney fees.
1. Visitation Transportation
In his first assignment of error, Garza assigns that the
district court erred in its order regarding visitation transpor-
tation. On this point, the district court ordered Faust Aman
to meet Garza halfway between Omaha and Lenexa to pick
up the couple’s son at the end of each visit, to commence
after Garza is again employed. Garza instead sought an order
1
Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (2013).
2
Id.3
Finney v. Finney, 273 Neb. 436, 730 N.W.2d 351 (2007).
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GARZA v. GARZA 217
Cite as 288 Neb. 213requiring Faust Aman to meet him halfway for each visit,
effective immediately.
We agree that Garza’s move to Lenexa was a material
change in circumstances.4 But we find no error in the dis-
trict court’s order on transportation. Garza voluntarily moved
to Lenexa. And Faust Aman testified as to the reasons why
transporting their son halfway to Lenexa was not feasible for
her. Reviewing the record de novo for an abuse of discretion,
we find the district court’s order was not error. Garza’s first
assignment of error is without merit.
2. Child Support
In his second assignment of error, Garza assigns that the
district court erred in calculating his child support obligation.
On cross-appeal, Faust Aman assigns that the district court
erred in finding a material change in circumstances support-
ing any reduction in child support and further erred in reduc-
ing Garza’s child support obligation under the doctrine of
unclean hands.
(a) Faust Aman’s Assignments of
Error on Cross-Appeal
We first address Faust Aman’s claim that there was no mate-
rial change in circumstances that would support a reduction in
Garza’s child support obligation.
We agree with Garza that his lack of employment is a mate-
rial change in circumstances. At trial in March 2013, Garza
presented evidence that he was laid off from his employment
in late March 2012 and that he had been searching for a job
since that time. Garza also presented testimony that he had
received unemployment from the State of Kansas and later
from the federal government, though at the time of trial, he
was ineligible for benefits. He testified he could reapply at a
later date.
Having concluded there was a material change in circum-
stances, we turn to Faust Aman’s argument that the district
court erred by not finding Garza to have unclean hands. The
4
See Neb. Rev. Stat. § 42-364 (Cum. Supp. 2012). See, also, Watkins v.
Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
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218 288 NEBRASKA REPORTS
doctrine of unclean hands can be invoked to bar a petitioner’s
claim for relief, when the “evidence shows that the petitioner
is able to pay the arrearage or is unable to pay through some
unintentional conduct on his part.”5
The record shows that Garza was unemployed at least twice
over the last few years. There is no evidence that this unem-
ployment was due to any bad faith on his part. As such, we
cannot conclude that the district court erred in failing to find
that Garza had unclean hands. Faust Aman’s second assign-
ment of error on cross-appeal is without merit.
(b) Garza’s Assignments of
Error on Appeal
We now turn to Garza’s various assignments of error regard-
ing his child support obligation. They can be summarized into
three groups: the district court erred in (1) making certain
deductions from Faust Aman’s income, (2) calculating Garza’s
income and in not deviating from the Nebraska Child Support
Guidelines for Garza’s travel expenses, and (3) not lower-
ing Garza’s child support obligation to a minimum $50 sup-
port level.
(i) Faust Aman’s Income
Garza makes several arguments regarding the district court’s
calculation of Faust Aman’s income. He argues that the district
court erred in not including Faust Aman’s bonus and in deduct-
ing from Faust Aman’s income her 401K contribution and her
dental and vision insurance premiums. All of Garza’s argu-
ments are without merit.
First, the district court did not err in not including
Faust Aman’s bonus, which was speculative in nature, in her
income.6 Nor did the district court err in deducting her 401K
contribution. Though Faust Aman had not currently been mak-
ing such a contribution, she testified that this was due to
Garza’s failure to be current on his child support obligation.
Finally, the district court did not err in allowing a deduction
5
Voichoskie v. Voichoskie, 215 Neb. 775, 779, 340 N.W.2d 442, 445 (1983).
6
See Noonan v. Noonan, 261 Neb. 552, 624 N.W.2d 314 (2001).
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GARZA v. GARZA 219
Cite as 288 Neb. 213for dental and vision insurance premiums, both of which are
permitted under the guidelines.7
(ii) Garza’s Income and
Travel Expenses
Garza next argues that the district court erred in calculating
his monthly income and in not allowing him a deviation from
the guidelines for his travel expenses. We disagree.
First, a review of the record demonstrates that the district
court calculated Garza’s earning capacity, and not his actual
earnings, at $1,720 a month. Based upon the evidence pre-
sented, this was appropriate.8
Garza also argues that the district court should have devi-
ated from the guidelines as a result of some of his travel
expenses. Again we disagree. Deviation from the guidelines is
discretionary,9 and we cannot conclude that the district court
was wrong, given the evidence that Garza voluntarily moved
to Lenexa.
(iii) Minimum Support Level
Finally, Garza argues that the district court should have low-
ered his child support obligation to the minimum support level
of $50 per month. We disagree.
Neb. Ct. R. § 4-209 outlines the minimum support order.
The purpose of § 4-209 is to provide for some support even in
cases of very low income in order to reinforce the duties and
obligations of being a parent.
But this case does not present a low-income situation, and
thus, § 4-209 has no application. Instead, as noted above,
Garza’s monthly income was properly calculated at $1,720 a
month. Even with a child support obligation of $305 a month,
Garza’s monthly income would not fall below the minimum
levels of $973 established by Neb. Ct. R. § 4-218 (rev. 2014).
Garza’s argument is without merit, as is his second assign-
ment of error.
7
Neb. Ct. R. § 4-215(A) (rev. 2011).
8
See Neb. Ct. R. § 4-204.
9
Neb. Ct. R. § 4-210.
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3. Attorney Fees
Finally, Garza argues that the district court erred in awarding
Faust Aman attorney fees.
[3-5] 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 recov-
ery of attorney fees.10 Customarily, attorney fees are awarded
only to prevailing parties or assessed against those who file
frivolous suits.11 A uniform course of procedure exists in
Nebraska for the award of attorney fees in dissolution cases.12
Thus, there was authority, in this modification of a dissolution
decree case, for the awarding of attorney fees.
[6] 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 diffi-
culty of the questions raised, and the customary charges of the
bar for similar services.13
The Nebraska Court of Appeals has further held that
it is not strictly necessary for an applicant for attorney
fees to introduce specific evidence to support an award
of attorney fees, but before an award of attorney fees
will be affirmed on appeal, the record must contain
the information that shows that the award is within the
range of the trial court’s discretion. . . . If the contents
of the record, i.e., pleadings, introduced discovery docu-
ments, time spent in court as shown by the court record,
and doubtless many other items which will support the
award, do show the allowed fee not to be unreason-
able, then that fee would not be untenable or an abuse
of discretion.14
10
Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999).
11
Id.12
See Nimmer v. Nimmer, 203 Neb. 503, 279 N.W.2d 156 (1979).
13
See Boamah-Wiafe v. Rashleigh, 9 Neb. App. 503, 614 N.W.2d 778(2000).
14
Id. at 519, 614 N.W.2d at 789.
Nebraska Advance Sheets
GARZA v. GARZA 221
Cite as 288 Neb. 213The best practice will always be to provide an affidavit or
other evidence such as testimony or exhibits as detailed above,
and we certainly encourage doing so. With such evidence, a
party is assured that both the trial court and the appellate court
will not be required to scour a record in an effort to support
attorney fees in any particular case.
We will not absolutely require the filing of an affidavit. As
the Court of Appeals noted in Boamah-Wiafe v. Rashleigh,15
“if the contents of the record . . . do show the allowed fee not
to be unreasonable, then that fee would not be untenable or an
abuse of discretion.” But we emphasize that the filing of an
affidavit or presentation of other evidence will always be the
preferable way to support the award of attorney fees. Litigants
who do not file an affidavit or present other evidence risk the
loss of attorney fees, because of the difficulty of discerning
such information from the record alone.
We cannot conclude that this fee was unreasonable. The
original application to modify was filed over 2 years ago.
Three different applications to modify were filed. Counsel for
Faust Aman pursued and succeeded in having Garza held in
contempt for failing to pay child support, the property settle-
ment, and other expenses. Discovery was conducted, includ-
ing depositions.
We find no merit to Garza’s final assignment of error.
VI. CONCLUSION
The decision of the district court is affirmed.
Affirmed.
15
Id.