Buderus v. Buderus , 30 Neb. Ct. App. 589 ( 2022 )

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www.nebraska.gov/apps-courts-epub/
02/08/2022 08:06 AM CST
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
BUDERUS v. BUDERUS
Cite as 30 Neb. App. 589Becky Teresa Buderus, appellee, v.
Patrick Scott Buderus, appellant.
___ N.W.2d ___
Filed February 8, 2022. No. A-21-260.
1. Modification of Decree: Child Support: Appeal and Error.
Modification of a dissolution decree is a matter entrusted to the discre-
tion 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 modification 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 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. Modification of Decree: Child Support: Proof. A party seeking to
modify a child support order must show a material change of circum-
stances which (1) occurred subsequent to the entry of the original decree
or previous modification and (2) was not contemplated when the decree
was entered.
4. Modification of Decree: Child Support. A decree awarding child
support will not be modified because of a change of circumstances
which was in the contemplation of the parties at the time the original
or preceding order was made, but only those anticipated changes which
were specifically noted on the record at the time the previous order was
entered will prevent modification.
5. ____: ____. Among the factors to be considered in determining whether
a material change of circumstances has occurred are changes in the
financial position of the parent obligated to pay support, the needs of
the children for whom support is paid, good or bad faith motive of the
obligated parent in sustaining a reduction in income, and whether the
change is temporary or permanent.
6. Modification of Decree: Child Support: Res Judicata. In the absence
of proof of new facts and circumstances arising since the time of the
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Cite as 30 Neb. App. 589original decree, an allowance of child support therein will be deemed
res judicata.
7. Attorney Fees. Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and accepted uni-
form course of procedure has been to allow recovery of attorney fees.
8. ____. Customarily, attorney fees are awarded only to prevailing parties
or assessed against those who file frivolous suits.
9. Divorce: Attorney Fees. A uniform course of procedure exists in
Nebraska for the award of attorney fees in dissolution cases.
10. Judgments: Attorney Fees. Silence of a judgment on the issue of attor-
ney fees must be construed as a denial of the request.
Appeal from the District Court for Dixon County: Bryan
C. Meismer, Judge. Reversed and remanded with instructions.
Logan J. Hoyt and Thomas B. Donner, of Donner Law
Offices, for appellant.
No appearance for appellee.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Patrick Scott Buderus appeals from an order of the district
court for Dixon County, Nebraska, increasing his child support
obligation from $300 per month to $591 per month and modi-
fying the procedure by which the parties settle disputes related
to daycare expenses. For the reasons that follow, we conclude
the district court abused its discretion in modifying an existing
child support order absent proof of a material change in cir-
cumstances. Accordingly, we reverse the district court’s order
and remand the cause with instructions to dismiss the com-
plaint for modification.
BACKGROUND
Patrick and Becky Teresa Buderus were married in April
2009 in Wayne County, Nebraska. Patrick and Becky had one
child together, who was born in 2012. Thereafter, in October
2012, Becky filed a complaint for dissolution of marriage.
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BUDERUS v. BUDERUS
Cite as 30 Neb. App. 589Patrick and Becky then negotiated and agreed to a “Stipulation
and Property Settlement Agreement” addressing all pertinent
issues related to the dissolution of marriage, as well as cus-
tody and child support for the minor child. The district court
approved the agreement and incorporated it into a final decree
of dissolution entered in February 2014. Except to the extent
that it was modified by the court’s final order on modifica-
tion of child support, there is no dispute that the 2014 decree
remained “in full force and effect” throughout the life of
this case.
The 2014 decree awarded the parties joint legal custody
of the minor child and awarded primary physical custody to
Becky, subject to Patrick’s reasonable parenting time as set
forth in a separate parenting plan. Importantly for purposes
of this appeal, the decree settled a factual dispute as to the
proper computation of Patrick’s income for purposes of cal-
culating child support. Attached to the decree was exhibit A,
which calculated Patrick’s income using his average monthly
income over a 3-year period from 2010 to 2012. Specifically,
Patrick’s income was computed by combining his net farm
profit reported on his schedule F tax form with an “add[-]back
of depreciation,” resulting in a total 3-year income of $57,274
and an average monthly income of $1,590.94. Applying
this amount to worksheet 1 of the Nebraska Child Support
Guidelines yielded a monthly obligation of $312 for Patrick,
and application of Neb. Ct. R. § 4-218 (rev. 2013) adjusted that
monthly obligation to $288.
With these calculations in mind, the parties stipulated that
Patrick be ordered to pay child support in the amount of $250
per month from March 2014 to August 2015 and $300 per
month thereafter. The agreement provided that these amounts
were “based upon the income of the parties as [s]et forth on
the ‘Summary of 2010, 2011 and 2012 Tax Returns’ attached to
said Exhibit ‘A’.” The parties further stipulated that “good cause
exists to deviate from the Nebraska Child Support Guidelines
to provide child support in the amount set forth herein.”
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BUDERUS v. BUDERUS
Cite as 30 Neb. App. 589In addition to child support, the agreement also stipulated
that each party pay an equal share of “work related day care
expenses.” The agreement included a detailed procedure which
was to be followed “[i]n the event the parties are unable to
agree on the amount and/or terms for payment of such work
related day care expenses.” First, “within 90 days of the date
of incurring work related day care expenses, the party who
incurred such day care expenses shall file a statement with the
Clerk of the District Court showing all work related day care
expenses paid together with supporting documentation.” The
same party “shall concurrently deliver a copy thereof by United
States first class mail postage prepaid to the other party.” Then,
“[w]ithin 30 days of such filing, the other party shall pay . . .
or, shall file with the Clerk of the District Court an objection
to such work related day care expenses and shall” serve a copy
of such objection to the other party in the same manner as
above. If the party who incurred daycare expenses fails to file
a claim within 90 days, “it shall be conclusively presumed that
no such work related day care expenses were incurred prior to
such time period.”
In October 2019, the State filed a motion to intervene “for
the purpose of allowing the State [to] enforce the child support
order in this matter.” The court granted the State’s motion, and
the State filed a complaint for modification of child support.
The complaint alleged that modification was justified on the
grounds that Patrick’s child support obligation varied “by more
than the percentage amount or other criteria established by
Supreme Court rule.” The State ultimately requested the 2014
decree “be modified so as to increase [Patrick’s] child support
obligation.”
In August 2020, the State filed a motion to dismiss its own
complaint on the grounds that Patrick “has provided addi-
tional financial information which, if accepted without objec-
tion and/or found to be true, would not support modification
of [Patrick’s] child support order.” On the same day, Becky
filed an objection to the State’s motion, requesting that the
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BUDERUS v. BUDERUS
Cite as 30 Neb. App. 589court allow her to prosecute the State’s complaint as opposed
to filing a new complaint for modification in her own behalf.
The court sustained Becky’s objection and allowed her to move
forward on the State’s complaint for modification.
Thereafter, Patrick filed an answer and counterclaim to the
complaint, requesting that the complaint be dismissed and
seeking a downward modification of child support. However,
in his brief on appeal, Patrick admits that he “did not argue for
or produce evidence supporting a downward modification at
trial.” Brief for appellant at 8. Patrick also requested that he be
awarded attorney fees from the date the court allowed Becky
to prosecute the action, arguing further litigation was unneces-
sary at that point because this case could be resolved through a
“simple application of the child support guideline rules.”
A trial on the complaint for modification of child support
was held in February 2021, wherein Patrick and Becky were
the only witnesses to testify. The central dispute was the proper
computation of Patrick’s income for purposes of calculating
child support. The parties generally agreed, and the evidence
confirmed, that Patrick received approximately $3,000 per
month in “custom hire” income from Plum Creek Dairy, along
with variable amounts of income arising out of Patrick’s farm-
ing operation raising and selling livestock.
Patrick’s counsel argued that if Patrick’s monthly income is
computed in the same manner as in the 2014 decree, then his
income is substantially the same as it was in 2014. In support
of this contention, Patrick submitted exhibit 117, which is a
summary of Patrick’s tax returns from 2017 to 2019. Therein,
like in the 2014 decree, Patrick’s income was computed by
combining his net farm profit reported on schedule F with an
add-back of depreciation, resulting in a total 3-year income
of $56,426 and an average monthly income of $1,599.17.
Application of this amount to worksheet 1 of the child sup-
port guidelines yielded a monthly obligation of $325 for
Patrick, and application of § 4-218 of the child support guide-
lines adjusted that monthly obligation to $318. This is $18
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Cite as 30 Neb. App. 589higher than Patrick’s stipulated obligation and $30 higher than
Patrick’s adjusted obligation as it was calculated in 2014.
Becky’s counsel, on the other hand, argued, “[I]t’s quite
apparent that [Patrick’s] income went up substantially from
2014 . . . . His uncontroverted testimony today is he gets
two payments of $1,500 per month. That is double what
he was making then.” Accordingly, in her proposed child
support calculation, Becky listed Patrick’s monthly income
as $3,000, resulting in the requested monthly obligation of
$508. However, Becky testified that in 2014, Patrick received
roughly “[t]he same amount as he’s claiming now” in compen-
sation from Plum Creek Dairy. Indeed, Patrick’s tax returns
from 2015 to 2019 indicate that he was at all times receiving
approximately $3,000 per month, which he reported as custom
hire income on schedule F. Thus, there is apparently no dis-
pute as to Patrick’s gross monthly income in connection with
his duties at Plum Creek Dairy. Rather, the dispute pertains to
the propriety of computing Patrick’s monthly income using his
net farm profit as reported on schedule F, which accounts for
Patrick’s additional income from livestock sales and deducts
Patrick’s reported farm expenses.
Patrick testified that at the time of trial, he raised around 50
head of beef cattle on the 7 acres where he lived and owned 25
to 30 dairy cows and “then about that many calves” at Plum
Creek Dairy. Patrick admitted that his livestock operation had
expanded since 2014, at which time he raised only three beef
cows on the 7 acres and owned only nine dairy cows. Patrick
clarified that although he owned a number of dairy cows, the
livestock he owned generated income only when they were
sold, and that he did not generate income from milk produc-
tion at Plum Creek Dairy. Patrick further testified that his
schedule F income would include any proceeds from livestock
sales in a given year. Indeed, Patrick’s tax returns indicate
he earned between $3,000 and $12,500 per year from sales
of livestock.
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BUDERUS v. BUDERUS
Cite as 30 Neb. App. 589Becky expressed skepticism as to the propriety of Patrick’s
reporting his income on schedule F, accusing Patrick of doing
so to avoid paying taxes and child support. Becky repeatedly
characterized Patrick’s farming operation as a “hobby farm,”
emphasizing her belief that Patrick “claims to be a ‘farmer’
so that this Court will allow him to deduct depreciation from
his hobby farm.” However, Patrick testified that his tax returns
were correct to the best of his knowledge and were at all times
prepared by his professional accountant. Moreover, Patrick
testified that his income had been reported in the same manner
since prior to the 2014 decree.
In addition to modifying child support, Becky requested
a modification to the language in the 2014 decree regarding
payment of daycare expenses. Specifically, Becky requested
that the court “delete the provision that I have to mail receipts
to [Patrick], file copies with the Clerk of the District Court
and try to get [Patrick] to agree with the amount that he has
to pay.” Becky testified that Patrick had made only a single
$100 contribution to daycare expenses in the 7 years since the
divorce. In September 2020, Becky filed an affidavit in support
of the present modification, in which she attested to the day-
care expenses she incurred and attached receipts to that effect.
However, there is no indication that Becky ever attempted to
utilize the procedure set forth in the 2014 decree prior to the
modification proceedings in this case. Becky testified that at
some point in the past, she “sent text messages with the receipt
of daycare, and it really hasn’t changed”; however, Patrick
testified that he received “[o]ne text” in the 7 years since
the divorce.
In March 2021, the court entered an “Order on Modification
of Child Support” noting that Patrick “alleges that a recalcu-
lation of child support is improper because his income has
not changed since the 2014 Order.” The court added, “[I]t is
not lost on this Court that the income dispute of the parties
in 2021 is basically the same as the income dispute in 2015
[sic] (computation of [Patrick’s] income), and that in 2015
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BUDERUS v. BUDERUS
Cite as 30 Neb. App. 589[sic] the parties negotiated and agreed to the current obliga-
tion.” (Emphasis in original.) Rather than identifying a mate-
rial change in circumstances justifying modification, the court
reasoned as follows:
The Court feels that it has the equitable power and duty
to come to a decision that is fair to all involved including
the minor child of the parties. For that reason, the Court
finds that a recalculation of child support is warranted in
this case and [that] the application for a modification of
child support shall be granted.
The court acknowledged that Patrick’s 2018 and 2019 tax
returns “outline income from Livestock . . . as well as income
(approximately $36,000.00 each year) from ‘custom hire.’”
Ultimately, the court concluded that “equity will be best served
by calculating [Patrick’s] income by deducting standard taxes
from his ‘custom hire’ income, instead of just looking at Line 7
(Adjusted Gross Income) of his tax returns.”
Having decided to abandon the method of computing
Patrick’s monthly income which was negotiated and agreed
to in 2014, the court turned to recalculating child support.
However, the court did not rely on exhibit 104, which was the
child support worksheet Becky offered at trial listing Patrick’s
monthly income of $3,000. Rather, the court resorted to a prior
child support worksheet attached to exhibit 100, which identi-
fied a monthly income of $2,835 for both Patrick and Becky.
The court determined that this latter worksheet “closely approx-
imates the Court-Determined income of the parties . . . and
calculates a child support obligation of $591.00 for [Patrick],
which shall be the new amount Ordered by the Court.”
With regard to Becky’s request to modify “the childcare
language,” the court ordered that Patrick and Becky “divide the
work or school related daycare and transport expenses equally.”
The court then established a simplified procedure under which
Becky “is Ordered to provide receipts for actual expenses at
least every 90 days, and [Patrick] is Ordered to remit pay-
ment for his one-half share within 30 days of receiving the
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BUDERUS v. BUDERUS
Cite as 30 Neb. App. 589receipts.” The court added that “[a]ny provision of the prior
Court’s Order not specifically altered by this Order shall
remain in full force and effect.” Patrick now appeals.
ASSIGNMENTS OF ERROR
Patrick assigns that the district court erred in (1) modify-
ing the decree of dissolution of marriage when there was no
material change in circumstances and (2) failing to rule upon
Patrick’s request for attorney fees and failing to order attor-
ney fees.
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. Garza v. Garza, 288 Neb.
213, 846 N.W.2d 626 (2014). The same standard applies to the
modification of child support. Id.[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. Id.ANALYSIS
[3-6] A party seeking to modify a child support order must
show a material change of 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. Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d
551 (2009). A decree awarding child support will not be modi-
fied because of a change of circumstances which was in the
contemplation of the parties at the time the original or preced-
ing order was made, but only those anticipated changes which
were specifically noted on the record at the time the previous
order was entered will prevent modification. Id. Among the
factors to be considered in determining whether a material
change of circumstances has occurred are changes in the
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Cite as 30 Neb. App. 589financial position of the parent obligated to pay support, the
needs of the children for whom support is paid, good or bad
faith motive of the obligated parent in sustaining a reduction
in income, and whether the change is temporary or permanent.
Rauch v. Rauch, 256 Neb. 257, 590 N.W.2d 170 (1999). In the
absence of proof of new facts and circumstances arising since
the time of the original decree, an allowance of child support
therein will be deemed res judicata. Id.Upward Modification of Child Support.
Under the 2014 decree, Patrick and Becky agreed to com-
pute Patrick’s monthly income using the method set forth in
exhibit A attached to the decree. This stipulated computation
combined Patrick’s net farm profit reported on schedule F over
a 3-year period, added back the amount of reported depre-
ciation for each year, and then calculated an average monthly
income from the total. Under this method of computation,
Patrick’s average monthly income was $1,590.94 in 2014.
Application of this amount to worksheet 1 from the child sup-
port guidelines yielded a monthly child support obligation of
$288 for Patrick. However, the parties stipulated that good
cause existed to deviate from the child support guidelines,
and they agreed to a compromised child support obligation of
$250 per month for roughly the first year and $300 per month
thereafter. Thus, at the time of trial on the complaint for modi-
fication of child support, Patrick’s child support obligation was
$300 per month.
The complaint for modification of child support in this case
alleged that modification was justified on the grounds that
Patrick’s child support obligation varied “by more than the
percentage amount or other criteria established by Supreme
Court rule.” Under Neb. Ct. R. § 4-217, there is a rebuttable
presumption of a material change in circumstances when an
application of the child support guidelines would result “in
a variation by 10 percent or more, but not less than $25,
upward or downward, of the current child support obliga-
tion.” Accordingly, in this case, there would be a rebuttable
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Cite as 30 Neb. App. 589presumption of a material change in circumstances if applica-
tion of the child support guidelines would result in a variation
of $30 or more in Patrick’s child support obligation.
As shown in exhibit 117, using the method of computation
set forth in the 2014 decree, Patrick’s average monthly income
was $1,599.17 at the time of trial. Application of this amount
to worksheet 1 from the child support guidelines yielded a
monthly contribution of $318 for Patrick—only $18 more than
his then-current child support obligation of $300 per month.
Accordingly, the evidence does not demonstrate a material
change in circumstances under § 4-217. Rather, the record
makes clear that Patrick’s monthly income, when computed
according to the stipulated method of computation set forth in
the 2014 decree, remained more or less the same.
However, the court decided to abandon the stipulated
method of computing Patrick’s income, and instead, it applied a
“Court-Determined” monthly income of $2,835, which yielded
a monthly child support obligation of $591. Although it is not
entirely clear how the court arrived at a monthly income of
$2,835, the court ostensibly computed Patrick’s monthly income
by “deducting standard taxes from his ‘custom hire’ income,
instead of just looking at Line 7 (Adjusted Gross Income) of
his tax returns.” We know that Patrick’s custom hire income
was $36,000 in 2019. To arrive at $2,835 per month, the court
apparently calculated “standard taxes” at a total of $165 per
month, or $1,980 per year. Not only is the court order vague as
to how it arrived at these amounts, but the court’s computation
neglects to account for Patrick’s income from livestock sales
and his reported farm expenses. In addition to the $36,000 in
custom hire income, Patrick’s 2019 schedule F also includes
$12,446 in income from livestock sales and $32,152 in total
farm expenses, yielding a net farm profit of $16,294.
In 2014, the parties stipulated that Patrick’s monthly income
for purposes of calculating child support would be derived
from a 3-year average of his net farm profit from schedule F
with an add-back of depreciation. The record simply fails to
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Cite as 30 Neb. App. 589demonstrate a material change in circumstances justifying a
modification in the stipulated method of computing Patrick’s
monthly income. When the stipulated method of computation
is applied to the most recent 3 years of Patrick’s tax returns,
the result is a variation of less than $25 from his then-current
obligation of $300 per month.
Accordingly, it was an abuse of discretion for the district
court to abandon the stipulated method of computation and
modify Patrick’s child support obligation without identifying a
material change in circumstances justifying such modifications.
Thus, we reverse the district court’s upward modification of
Patrick’s child support obligation.
Resolution of Disputes Regarding
Daycare Expenses.
Similar to the court’s modification of child support, the court
did not identify any material change in circumstances justify-
ing a modification of the stipulated procedure for resolving dis-
putes related to daycare expenses. While the evidence indicated
that Patrick has failed to contribute his share of daycare expenses
under the 2014 decree, there was no indication that Patrick’s
failure in this regard constituted a material change in circum-
stances which was not contemplated by the parties at the time
of the 2014 decree. Rather, the 2014 decree included a detailed
procedure to follow in the event of such a dispute. Far from
indicating a material change in circumstances, this evidences
an explicit contemplation of future disputes regarding daycare
expenses. Accordingly, the procedure set forth in the 2014
decree, if employed, was capable of resolving these disputes
without the court’s modification, and it was an abuse of discre-
tion for the court to modify the 2014 decree absent a material
change in circumstances not contemplated at the time.
Attorney Fees.
[7-9] Patrick also assigns that the district court erred in
failing to rule upon his request for attorney fees and failing
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Cite as 30 Neb. App. 589to award attorney fees. Attorney fees and expenses may be
recovered only where provided for by statute or when a rec-
ognized and accepted uniform course of procedure has been
to allow recovery of attorney fees. Garza v. Garza, 288 Neb.
213, 846 N.W.2d 626 (2014). Customarily, attorney fees are
awarded only to prevailing parties or assessed against those
who file frivolous suits. Id. A uniform course of procedure
exists in Nebraska for the award of attorney fees in dissolution
cases. Id.[10] Although the pleadings do not include a request for
attorney fees, Patrick made such a request at trial prior to the
court’s taking the matter under advisement. However, the court’s
final order is silent on the issue of attorney fees. Accordingly,
Patrick emphasizes that the court’s “failure to even address the
matter requires some consideration by this Court.” Brief for
appellant at 20. However, the Nebraska Supreme Court has
held that silence of a judgment on the issue of attorney fees
must be construed as a denial of the request. Murray v. Stine,
291 Neb. 125, 864 N.W.2d 386 (2015). See Olson v. Palagi,
266 Neb. 377, 665 N.W.2d 582 (2003).
In light of this authority, we construe the court’s silence as a
denial of Patrick’s request for attorney fees. Thus, the question
before us is whether it was an abuse of discretion for the court
to deny Patrick’s request for attorney fees, and we find that it
was not. Although we disagree with the court’s decision on the
issue of modification, under the court’s ruling, Patrick was not
the prevailing party. As such, it was not an abuse of discretion
for the court to deny Patrick’s request for attorney fees.
CONCLUSION
We conclude the district court abused its discretion in modi-
fying the 2014 decree without identifying any material change
in circumstances justifying such modifications. Accordingly,
we reverse the district court’s order and remand the cause with
instructions to dismiss the complaint for modification.
Reversed and remanded with instructions.