Passauer v. Kelley ( 2015 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
PASSAUER V. KELLEY
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
KATHRYN J. PASSAUER, APPELLEE,
V.
SAMUEL G. KELLEY, APPELLANT.
Filed December 29, 2015. No. A-14-1007.
Appeal from the District Court for Lancaster County: STEVEN D. BURNS, Judge. Affirmed
as modified.
Andrew M. Ferguson, of Carlson & Burnett, L.L.P., for appellant.
No appearance for appellee.
MOORE, Chief Judge, and INBODY and BISHOP, Judges.
BISHOP, Judge.
Samuel G. Kelley appeals from the decree of dissolution of marriage entered in the district
court for Lancaster County, Nebraska, dissolving his marriage to Kathryn J. Passauer, formerly
known as Kathryn J. Kelley. He argues the court abused its discretion by (1) using both basic
custody and joint physical custody calculations as a deviation when setting Kathryn’s child support
obligation, and (2) using his earning capacity rather than his actual income when calculating child
support. He also appeals the alimony awarded to Kathryn. We determine the court abused its
discretion in deviating from the child support guidelines in the manner it did, and in failing to give
Samuel credit for past alimony paid. We modify the child support award, and also modify the
duration of the alimony award to reflect credit for Samuel’s payment of past alimony; judgment
affirmed as modified.
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BACKGROUND
Samuel and Kathryn were married in February 2000 in Gretna, Nebraska. They had two
sons, one born in 1998 and the other in 2001. On September 30, 2009, Kathryn filed a petition for
dissolution of marriage in the district court for Sarpy County, Nebraska. On July 6, 2011, the
district court for Sarpy County entered a decree of dissolution of marriage, granting the parties
joint legal custody of the children but placing physical custody with Samuel. The court did not
award child support, but ordered Samuel to pay Kathryn alimony of $500 per month for 3 years.
Kathryn appealed the decree, which this court vacated in an unpublished opinion filed on
November 20, 2012. Passauer v. Kelley, No. A-11-681, 2012 WL 5870592 (Neb. App. Nov. 20,
2012) (selected for posting to court Web site). We determined the district court lacked jurisdiction
because the record did not establish that Kathryn resided in Sarpy County at the time she filed her
petition. Id.
On December 10, 2012, Kathryn again petitioned for dissolution of marriage, this time in
Washington County, Nebraska, where she resided at that time. Samuel resided with the children
at his mother’s house in Lancaster County; on Samuel’s motion, the action was transferred to the
district court for Lancaster County. On May 10, 2013, the district court for Lancaster County
granted Samuel temporary physical custody of the children and ordered Kathryn to pay $500 per
month in temporary child support.
The matter proceeded to a bench trial on April 11 and June 16, 2014. Kathryn testified that
during the marriage, she operated an in-home daycare until 2006. When she and Samuel separated
in September 2009, she was not employed. She then worked performing maintenance at an
apartment complex from June or July 2011 until April 2012. She earned $10 per hour but worked
only 14 hours per month; she received her compensation in the form of a discount on her rent.
From November 2012 to June 2013 (although she testified to these dates, the W-2s received in
evidence suggest the dates were November 2011 to June 2012), she worked as a detailer for an
auto dealership in Blair, Nebraska, earning $12 per hour and working 40 to 45 hours per week.
From “September” (she did not specify the year, but the W-2s received in evidence suggest it was
2012) until August 1, 2013, she worked as a “forklift tech” for a company in Blair earning $12.50
per hour and working 40 hours per week. At the time of trial, she was “on lay-off” from the
company in Blair. Kathryn also received $2,064 in unemployment compensation in 2013. In March
2014, only one month prior to trial, she began working as a “forklift tech” for a temporary
employment agency, earning $13 per hour and working 32 to 40 hours per week.
Kathryn’s W-2s for 2011 through 2013, one paystub from the temporary employment
agency, and her income tax returns for 2011 and 2012 were received in evidence. The W-2s for
the auto dealership showed $5,472.56 in wages for 2011 and $11,522.80 for 2012; the W-2s from
the company in Blair showed $6,757.74 in wages for 2012 and $15,795.50 for 2013; the paystub
dated March 21, 2014, from the temporary employment agency showed year-to-date earnings of
$1,654.32. Kathryn’s income tax returns showed gross income of $8,679 for 2011 and $20,349 for
2012. A summary of Kathryn’s monthly living expenses was received in evidence and showed
expenses totaling between $2,272 and $2,372, including her $500 temporary child support
obligation.
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Samuel testified that at the time of trial, he had been working for approximately a year as
a fleet manager/safety coordinator for a medical transport company, earning $55,000 per year. He
received health insurance for him and the children through his employer. Prior to working for the
medical transport company, he worked for an auto dealership in Norman, Oklahoma, from 2012
to 2013 (months not specified). His W-2s from the auto dealership showed that he earned
$17,040.20 in 2012 and $30,578.90 in 2013. During the time he worked in Oklahoma, either every
week or every other week he traveled back to Lincoln, Nebraska, where his mother cared for the
parties’ children during the week.
Samuel testified that prior to working at the auto dealership in Oklahoma, he worked at an
auto dealership in Farmington, New Mexico, from December 2011 to August 2012. During that
time, the children stayed with his mother in Lincoln, and Samuel flew to Lincoln once every two
weeks. His W-2s showed that he earned $12,719.43 from the New Mexico dealership in 2011 and
$106,518.14 in 2012. Prior to the position in New Mexico, Samuel worked for 3 years for an auto
dealership in Lincoln; his W-2 for 2011 showed he earned $88,169.76 from the dealership that
year. Samuel testified he worked for a dealership in Omaha, Nebraska, prior to working in Lincoln;
however, the record does not disclose his earnings there.
Samuel’s income tax returns for 2011, 2012, and 2013 were received in evidence. They
showed gross income of $100,889 in 2011; $123,558 in 2012; and $61,988 in 2013. A summary
of Samuel’s monthly living expenses received in evidence showed expenses totaling $4,107.
Samuel testified he had received offers of employment from businesses in other states,
including Nevada, New Mexico, Oklahoma, and Georgia, but he had not accepted any of them.
When asked if he had plans to move out of state, he testified he had “to finish this court battle
first.” Samuel explained he was not willing to travel to an out-of-state job as he had done in the
past until “this thing is set in stone . . . and done legally.”
At the conclusion of trial, the court took the matter under advisement. On August 13, 2014,
the court entered a decree of dissolution of marriage and a parenting plan. The court granted legal
and physical custody of the children to Samuel. As set forth in the parenting plan, Kathryn was
granted 4 days of parenting time every other week during the school year, and parenting time on
an alternating week basis during the summer. The court ordered Kathryn to pay child support of
$172 per month, which was a downward deviation from the guideline amount but was “specifically
approved by the Court based on the summer visitation schedule set forth in the Parenting Plan.” In
addition to child support, Kathryn was ordered to pay 25 percent of any uninsured medical
expenses exceeding $480 per child per calendar year. The court also ordered Samuel to pay
alimony of $500 per month for 60 months. No reasons were provided by the court to explain the
basis for either the amount or duration.
The court attached child support worksheets to the decree, which we briefly summarize as
they are at issue on appeal. For all of the calculations in the worksheets, the court used a gross
monthly income of $10,000 for Samuel and $2,253 for Kathryn. Using worksheet 1, the sole
custody worksheet, the court calculated Kathryn’s guideline child support obligation for two
children to be $522 per month. Using worksheet 3, the joint physical custody worksheet, the court
calculated Samuel’s guideline child support obligation for two children to be $881 per month; as
the court later explained, this represented Samuel’s child support obligation during the 3 summer
months when the parties had equal parenting time.
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The court also completed worksheet 5, showing the court’s deviations from the guideline
amount of child support. The court included two deviations: (1) a deviation of $220 representing
a credit for Samuel’s child support obligation during the 3 summer months, averaged over 12
months (in other words, the court multiplied $881 by 3 months and divided the result by 12 months
to calculate a credit to Kathryn of $220 per month) and (2) a deviation of $130 representing a credit
for Kathryn’s lack of a child support obligation during the 3 summer months (in other words, the
court multiplied Kathryn’s guideline amount of support by 3 months and divided the result by 12
months to calculate a credit to Kathryn of $130 per month). The end result was that Kathryn’s
child support obligation was $172 per month (i.e., $522 - $220 - $130 = $172).
On August 22, 2014, Samuel filed a motion for a new trial or, alternatively, to amend the
decree. Samuel argued that in calculating child support, the court improperly used his 2012 income
rather than his current income. He further argued the court failed to comply with the child support
guidelines when it made “parenting time adjustments” based on the summer parenting schedule.
Samuel also argued the court’s award of alimony was inequitable in amount and duration.
On October 7, 2014, the court denied Samuel’s motion for new trial or, alternatively, to
amend the decree. The court found that it properly determined Samuel’s earning capacity in
calculating child support. The court stated it “did not find believable the substantial reduction in
income [Samuel] claims to have occurred or that it will continue to occur in the future.” The court
also found that its alimony award was appropriate, although it offered no explanation.
The court also explained why it deviated from the guidelines in determining child support.
It explained that although it granted Samuel custody of the children, the parents had equal
parenting time during the summer. The court stated that “[f]ailing to recognize the adverse
economic impact on the mother from the summer parenting schedule would not be in the best
interest of the children.” The court stated the summer parenting schedule was similar to joint
physical custody and that Samuel would owe Kathryn a significant amount of support during the
summer months using a joint custody calculation. The court explained that, “[r]ather than deviating
in the mother’s child support, the court could have ordered the mother to pay her child support
obligation for nine months and the father to pay his for three months.” However, the court
reasoned, “calculating a deviation seemed to be the better approach.” Samuel timely appealed to
this court.
ASSIGNMENTS OF ERROR
Samuel assigns as error that the district court abused its discretion in (1) its award of child
support by using an improper calculation and deviation from the Nebraska Child Support
Guidelines; (2) determining his income for purposes of child support by using an earning capacity
based on figures from his highest earning year, when he was consistently traveling and staying out
of state for his job; (3) ordering him to pay alimony in an amount that was inequitable given his
current income; and (4) ordering him to pay alimony of $500 per month for 60 months given the
circumstances of the parties, the prolonged dissolution proceedings, and his current income.
STANDARD OF REVIEW
In actions for dissolution of marriage, an appellate court reviews the case de novo on the
record to determine whether there has been an abuse of discretion by the trial judge. Coufal v.
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Coufal, 291 Neb. 378, 866 N.W.2d 74 (2015). This standard of review applies to the trial court’s
determinations regarding custody, child support, division of property, alimony, and attorney fees.
Id. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial right and denying just results in matters
submitted for disposition. Id.
ANALYSIS
Deviation From Child Support Guidelines.
In support of his first assignment of error, Samuel argues the court abused its discretion by
combining sole and joint custody calculations to determine Kathryn’s child support obligation. He
contends the court’s deviation from the guideline amount of child support “is rooted in the
erroneous assumption that . . . it could have applied a joint custody calculation [during the summer
months], even though it granted [Samuel] full custody.” Brief for appellant at 13. According to
Samuel, rather than combining sole and joint custody calculations, the court should have applied
Neb. Ct. R. § 4-210 and reduced Kathryn’s child support payments by up to 80 percent during the
summer months. Kathryn did not file a brief; her position on any issues raised by Samuel are
unknown.
In general, child support payments should be set according to the Nebraska Child Support
Guidelines. Freeman v. Groskopf, 286 Neb. 713, 838 N.W.2d 300 (2013); Neb. Ct. R. § 4-203
(Rev. 2011). In determining the amount of child support, a trial court may consider the status and
situation of the parties, including their financial condition. Anderson v. Anderson, 290 Neb. 530,
861 N.W.2d 113 (2015). A court may deviate from the guidelines if it finds their application in a
given case would be unjust or inappropriate. Anderson, supra; § 4-203(E). A court must
specifically find that a deviation is warranted based on the evidence and state the reason for the
deviation in the decree, or complete worksheet 5 showing the deviations and include it in the court
file. Anderson, supra; § 4-203. “Deviations must take into consideration the best interests of the
child.” § 4-203.
To address Samuel’s argument, it is helpful to again summarize how the court calculated
Kathryn’s child support obligation. Using worksheet 1 (sole custody worksheet), the court
calculated Kathryn’s guideline child support obligation to be $522 per month. Using worksheet 3
(joint physical custody worksheet), the court calculated Samuel’s child support obligation to be
$881 per month. The court reasoned that since the parties had equal parenting time during the
summer months, it could order Samuel to pay child support of $881 per month during the 3 summer
months. Then, instead of ordering Kathryn to pay $522 per month in child support for 9 months
and ordering Samuel to pay $881 per month in child support for 3 months, the court granted credits
to Kathryn for (1) the $881 per month Samuel would owe her for the 3 summer months (a total of
$2,643 or approximately $220 per month for 12 months) and (2) the $522 per month Kathryn
would not be obligated to pay for those 3 summer months (a total of $1,566 or approximately $130
per month for 12 months). The net result was that Kathryn owed child support of $172 per month
($522 - $220 - $130 = $172). Or another way to look at what the court did is to simply take
Kathryn’s obligation of $522 x 9 months ($4,698) minus Samuel’s obligation of $881 x 3 months
($2,643); this results in Kathryn’s total annual obligation being $2,055 ($4,698 - $2,643) or
$171.25 per month.
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We agree with Samuel that the calculations the court deemed “deviations” from the
guidelines were not authorized deviations. The court combined sole and joint physical custody
child support calculations in a manner not provided for in the guidelines. In essence, the court used
a sole custody calculation for 9 months of the year and a joint physical custody calculation for 3
months of the year, then averaged the results over 12 months to arrive at Kathryn’s final monthly
child support obligation. As Samuel argues, the propriety of the child support award depends upon
whether the court abused its discretion by combining sole and joint physical custody calculations
in this manner; we conclude it did abuse its discretion.
The Nebraska Child Support Guidelines contain specific provisions outlining when the
joint physical custody worksheet should be used to calculate child support. The guidelines provide
that “[w]hen a specific provision for joint physical custody is ordered and each party’s parenting
time exceeds 142 days per year, it is a rebuttable presumption that support shall be calculated using
worksheet 3 [the joint custody worksheet].” Neb. Ct. R. § 4-212 (Rev. 2011). They further provide
that “[w]hen a specific provision for joint physical custody is ordered and one party’s parenting
time is 109 to 142 days per year, the use of worksheet 3 to calculate support is at the discretion of
the court.” § 4-212. Further, “[i]f child support is determined under this paragraph, all reasonable
and necessary direct expenditures made solely for the child(ren) such as clothing and
extracurricular activities shall be allocated between the parents, but shall not exceed the proportion
of the obligor’s parental contributions (worksheet 1, line 6).” § 4-212. The mandatory allocation
of reasonable and necessary expenditures is an important aspect of using the joint physical custody
calculator. Because joint physical custody is premised on a fairly equal sharing of parenting time
throughout the year, it results in the fixed monthly child support obligation being significantly
reduced. However, that lower monthly obligation is then supplemented by the mandatory sharing
of reasonable and necessary expenditures incurred by the children.
As set forth above, § 4-212 refers in two places to its application to orders which contain a
“specific provision for joint physical custody.” However, this court and the Nebraska Supreme
Court have held that, in limited circumstances, the absence of such a specific provision does not
preclude the use of the joint physical custody worksheet. See Patton v. Patton, 20 Neb. Ct. App. 51,
818 N.W.2d 624 (2012) (summarizing these cases, including Elsome v. Elsome, 257 Neb. 889, 601
N.W.2d 537 (1999), which held that if joint physical custody is proven, the joint custody worksheet
should be used). In Patton, supra, the decree of dissolution and parenting plan provided for joint
legal custody, with primary physical possession with the mother. The father was granted
approximately 160 days of parenting time per year. The trial court used the joint physical custody
worksheet to calculate child support and allocated between the parties all reasonable and necessary
direct expenditures made solely for the children, such as clothing, schooling, extracurricular
activities, or school-related expenses. On appeal, this court held that although there was no specific
provision for joint physical custody, it was not an abuse of discretion to use the joint physical
custody worksheet to calculate child support, given that the father had parenting time “roughly 45
percent of the year” and the parents shared in all reasonable and necessary direct expenditures
made for the children. Id. at 64, 818 N.W.2d at 635.
The case before us is distinguishable from Patton, supra. Based on our calculations,
Kathryn will have parenting time approximately 119 days per year between summer and regular
alternating week parenting time compared to the father’s 160 days in Patton, supra. To calculate
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Kathryn’s summer parenting time, we note that the parenting plan provides that “summer” starts
7 days after the last day of school and ends 7 days before the start of school. Both children attend
Lincoln Public Schools (LPS), and using the LPS school calendars for calendar year 2015,
“summer” for purposes of the parenting plan is 70 days long (May 28 to August 5), or 10 weeks.
Using the rotating weekly summer schedule, Kathryn will have the children approximately 35 days
during the summer (70 ÷ 2 = 35), or 5 weeks. For the other 42 weeks of the year, Kathryn will
have the children every other week for 4 overnights or approximately 84 days (21 weeks x 4).
Kathryn’s total parenting time amounts to 119 days plus some holidays which may or may not
overlap with regularly scheduled parenting time. This amount of time is not appreciably different
from a “‘typical’” parenting time schedule, see Pool v. Pool, 9 Neb. Ct. App. 453, 458, 613 N.W.2d
819, 824 (2000) (describing as “‘typical’” a schedule providing for noncustodial parenting time
every other weekend, one additional weekend day a month, two evenings a week, and during the
summer from June 1 to July 31), and is significantly less parenting time than the father had in
Patton, supra. Additionally, Kathryn’s 5 weeks of summer parenting time is only one week greater
than proposed for noncustodial parents in the local rules for Lancaster County where 2 consecutive
weeks are provided early in the summer and 2 consecutive weeks later in the summer. See Rules
of Dist. Ct. of Third Jud. Dist., Appendix Form 3 (rev. June 23, 2010). Finally, as previously
discussed, using the joint physical custody calculator contemplates a sharing of miscellaneous
expenses. The decree in this case contains no provision requiring Kathryn to pay her proportionate
share of all reasonable and necessary direct expenditures for the children, such as clothing and
extracurricular activities. Other than child support, the only child-related expense Kathryn was
ordered to pay was 25 percent of any uninsured medical expenses exceeding $480 per child per
calendar year. Given that sole legal and physical custody was awarded to Samuel, and given these
significant distinctions from Patton, supra, this is not a case where the joint physical custody
worksheet could be used to adjust child support for Kathryn’s 5 weeks of summer parenting time.
Rather, the guidelines provide a mechanism to reduce a noncustodial parent’s child support
obligation during larger blocks of continuous parenting time, as discussed next.
Kathryn’s child support obligation during the summer months can be reduced pursuant to
§ 4-210, which states in part:
an adjustment in child support may be made at the discretion of the court when visitation
or parenting time substantially exceeds alternating weekends and holidays and 28 days or
more in any 90-day period. During visitation or parenting time periods of 28 days or more
in any 90-day period, support payments may be reduced by up to 80 percent.
Kathryn’s summer parenting time schedule meets this threshold. As previously discussed, Kathryn
was awarded 35 out of the 70 days comprising the summer of 2015. Consistent with the district
court’s goal of maximizing reductions in Kathryn’s child support over the course of June, July and
August, an 80 percent reduction would be the maximum reduction available under this rule.
Application of § 4-210 would result in Kathryn owing only $104.40 per month ($522 x .20) during
those summer months. However, to remain consistent with the district court’s goal of allocating
the reduction over the course of the year, rather than paying $522 per month from September
through May, and $104 per month from June through August, Kathryn’s child support obligation
is calculated to be $418 per month ($4,698 for September through May plus $417.60 for June
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through August; total of $5,011.12 ÷ 12 = $417.59). Kathryn’s child support for two children is
therefore modified to reflect a monthly obligation of $418 commencing August 13, 2014 (date of
entry of decree). Child support for one child shall be $314, which we calculated by using the
guideline amount of $392 and reducing it by 80 percent for June through August, then allocating
the reduction over the course of the year ($3,528 for September through May plus $235.20 for
June through August; total of $3,763.20 ÷ 12 = $313.60).
Based on the foregoing, we conclude the district court abused its discretion when it
deviated from the child support guidelines in the manner it did, which in essence was by using sole
custody calculations for the school year and joint physical custody calculations for the summer
instead of applying the reduction permitted pursuant to § 4-210. Accordingly, Kathryn’s child
support obligation is modified as set forth herein. In determining the modified child support, we
have relied upon the income figures used by the district court because we conclude there was no
abuse of discretion in the court’s determination of income attributable to each party. We explain
why next.
Income for Purposes of Child Support.
Samuel also argues the court abused its discretion in basing its child support calculation on
his earning capacity rather than his actual, current income. He contends there was no evidence he
was “capable of realizing a higher earning capacity through reasonable effort while maintaining
custody of the parties’ two (2) minor children.” Brief for appellant at 14. He points out that the
court based his earning capacity on his income from positions that “required significant out of state
travel that was incompatible with [his] responsibilities as a parent with legal custody of two minor
children.” Brief for appellant at 14. According to Samuel, Kathryn presented no evidence that he
“could earn a high income in any job in Nebraska.” Brief for appellant at 15. He asserts his current
job is the “only job [he] could secure while caring for [his children].” Brief for appellant at 15.
The Nebraska Child Support Guidelines provide that “[i]f applicable, earning capacity may
be considered in lieu of a parent’s actual, present income and may include factors such as work
history, education, occupational skills, and job opportunities. Earning capacity is not limited to
wage-earning capacity, but includes moneys available from all sources.” Neb. Ct. R. § 4-204 (Rev.
2008). “Use of earning capacity to calculate child support is useful ‘when it appears that the parent
is capable of earning more income than is presently being earned.’” Freeman v. Groskopf, 286
Neb. 713, 720, 838 N.W.2d 300, 307 (2013), quoting Rauch v. Rauch, 256 Neb. 257, 590 N.W.2d
170 (1999). Likewise, child support may be based on a parent’s earning capacity when a parent
voluntarily leaves employment and a reduction in that parent’s support obligation would seriously
impair the needs of the children. Claborn v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004).
Generally, however, earning capacity should be used to determine a child support obligation only
when there is evidence that the parent can realize that capacity through reasonable efforts. Johnson
v. Johnson, 290 Neb. 838, 862 N.W.2d 740 (2015).
We conclude the district court did not abuse its discretion in determining that Samuel’s
earning capacity was $10,000 per month, or $120,000 per year. As Samuel points out, $120,000
was his approximate annual income for 2012, when he worked at auto dealerships in Oklahoma
and New Mexico. Samuel’s actual annual income at the time of trial was only $55,000, which he
earned working as a fleet manager/safety coordinator at a medical transport company in Lincoln.
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Although Samuel’s current income was significantly lower than $120,000, Samuel testified he had
received a number of job offers, which he had declined. While those offers were out of state,
Samuel’s testimony implied he would pursue similar offers in the future. When asked if he had
plans to move out of state, he testified he had “to finish this court battle first” and explained he
was not willing to travel to an out-of-state job as he had done in the past until “this thing is set in
stone . . . and done legally.” The implication was that once the “court battle” was over, he would
return to a job similar to the jobs he had in the past. We also note that the district court was in the
best position to judge the witness’ credibility. See Binder v. Binder, 291 Neb. 255, 864 N.W.2d
689 (2015) (although an appellate court’s review in dissolution cases is de novo, if credible
evidence is in conflict on a material issue of fact, the appellate court considers and may give weight
to the fact that the trial judge heard and observed the witnesses and accepted one version of the
facts than another).
Samuel also contends that his current job is the “only job [he] could secure while caring
for [his children]” and that there was no evidence presented that he “could earn a high income in
any job in Nebraska.” Brief for appellant at 15. However, Samuel ignores that as recently as 2011,
he earned $88,169.76 working part of the year at an auto dealership in Lincoln (he left his job in
Lincoln and began working for the New Mexico dealership in December 2011). Samuel testified
he worked for the Lincoln dealership for 3 years and for a dealership in Omaha prior to that.
Therefore, the evidence does not support his contention that work similar to his out-of-state
positions is unavailable in Nebraska. Likewise, while Samuel argues on appeal that an out-of-state
position is “incompatible with [his] responsibilities as a parent with legal custody of two minor
children,” brief for appellant at 14, we note that he had sole physical custody of the children when
he was working for the dealerships in Oklahoma and New Mexico.
We also note that in arguing the court abused its discretion in relying on his earning
capacity rather than his actual income, Samuel ignores that the monthly income the court used for
Kathryn when calculating child support was significantly higher than any income she had earned
on an annual basis for the prior 3 years. The court determined Kathryn’s monthly income to be
$2,253, which works out to $13 per hour for 40 hours per week and $27,036 per year. At trial in
April 2014, Kathryn testified she had begun working for a temporary employment agency in March
2014, earning $13 per hour for between 32 and 40 hours per week. Her next most recent position
was working as a “forklift tech” for a company in Blair; however, that position ended on August
1, 2013. Her W-2 from the company in Blair showed she earned $15,795.50 in wages in 2013; she
also received $2,064 in unemployment compensation in 2013. Her income tax returns for 2012
and 2011 showed gross income of $20,349 and $8,679, respectively.
Therefore, while the district court based its child support calculation on an earning capacity
that was significantly higher than Samuel’s current income, it also used an income figure for
Kathryn that, on an annual basis, was significantly higher than her annual income in any of the
prior 3 years. Notably, we completed the sole custody worksheet using Kathryn’s highest actual
annual income of $20,349 and Samuel’s actual income of $55,000, and the result was that Kathryn
owed Samuel child support of $531 per month, substantially similar to the $522 figure the court
reached using higher income figures for Kathryn and Samuel. We need not address the effect that
using the higher income figures had on Samuel’s child support obligation using the joint physical
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custody worksheet, since we have modified the child support using § 4-210 rather than a joint
physical custody worksheet.
Alimony.
Samuel next argues the court abused its discretion in ordering him to pay $500 per month
in alimony for 60 months. He has two assignments of error related to alimony and two sections of
argument in his brief; however, the assignments of error and arguments are related, so we address
them together. Samuel argues the alimony award was inequitable given his current income, the
length of the parties’ separation, and the parties’ circumstances. He contends he has been “forced
to give up his career in the auto service industry and take substantially lower paying employment
in Lincoln,” brief for appellant at 16, and that Kathryn has had “ample opportunity to make herself
available for employment or receive proper training for employment.” Brief for appellant at 17.
He also notes he paid $500 per month in alimony for approximately 12 months following the prior
decree of dissolution of marriage that was vacated and which had ordered alimony for 3 years
(Kathryn testified Samuel stopped paying alimony in June 2012, and the prior decree was entered
in July 2011).
Under Neb. Rev. Stat. § 42-365 (Reissue 2008), courts should consider four factors relative
to alimony: (1) the circumstances of the parties, (2) the duration of the marriage, (3) the history of
contributions to the marriage, and (4) the ability of the supported party to engage in gainful
employment without interfering with the interests of any minor children in the custody of each
party. Courts should also consider the income and earning capacity of each party, as well as the
general equities of the situation. Binder v. Binder, 291 Neb. 255, 864 N.W.2d 689 (2015). The
main purpose of alimony is to assist a former spouse for a period necessary for that individual to
secure his or her own means of support; reasonableness is the ultimate criterion. Id. In reviewing
an alimony award, an appellate court does not decide whether it would have awarded the same
amount of alimony as the trial court, but instead whether the trial court’s award is untenable such
as to deprive a party of a substantial right or just result. Id.
As an initial matter, we have already addressed Samuel’s argument that the court abused
its discretion in determining that his earning capacity was $120,000 per year. As we explained
above, the court did not abuse its discretion in relying on that figure for purposes of calculating
child support. For the same reasons, it did not abuse its discretion in using that figure when
determining an appropriate amount of alimony. We find no abuse of discretion in the amount of
monthly alimony ordered. We consider next the duration of the award.
Samuel’s remaining arguments focus on the consideration that at the time of trial, it had
been nearly 5 years since the parties separated, during which period Kathryn had the ability to
establish her own means of support. We are also mindful that the parties were married in 2000,
separated in 2009, and were initially divorced in July 2011. The 3-year alimony award in the
since-vacated Sarpy County decree has now, 3 years later, been replaced with a 5-year alimony
award that seems to give no credit for the roughly 1 year of alimony Samuel appears to have paid
following entry of the July 2011 decree. While there is a sense of inequity in the duration of this
alimony award, especially considering Samuel has full custody of the children and a previous
district court determined 3 years was an appropriate duration for alimony, this court is limited to
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reviewing the district court’s decision for an abuse of discretion. With that in mind, we consider
the facts presented in the record before us.
The summary of Kathryn’s monthly living expenses received in evidence showed expenses
of between $2,272 and $2,372, including her $500 temporary child support obligation. While the
district court set child support at only $172, we have modified the child support award to $418 per
month. Using the revised amount of child support and adding that amount to her other stated
monthly obligations, Kathryn’s monthly expenses are between $2,190 and $2,290. Using the
income figure that the district court used in calculating child support, Kathryn’s net income after
taxes is $1,853.77. Therefore, Kathryn’s net income of $1,853.77 is not enough to meet her
monthly expenses of between $2,190 and $2,290.
Furthermore, as the district court determined, Samuel has a substantially higher earning
capacity than Kathryn. Using the earning capacity determined by the trial court, Samuel’s net
income after taxes is $7,149, and he will receive child support in addition to the income he receives
from employment. His monthly living expenses total $4,107.
We also note that although the evidence does not disclose the parties’ employment history
for the entire length of the marriage, it revealed that for the 3 years ending December 2011, Samuel
worked for an auto dealership in Lincoln; prior to that, he worked for a dealership in Omaha. By
contrast, Kathryn testified she operated an in-home daycare until 2006 and at the time the parties
separated in September 2009, she was unemployed. Therefore, it is clear that Samuel was the
primary source of the parties’ financial support during the marriage, which leads to the reasonable
inference that Kathryn is in need of alimony for a period of time to secure her own means of
support. Although 5 years of alimony is perhaps a longer duration than we might typically see for
a 9-year marriage (separated in 2009), we cannot say it was an abuse of discretion for the district
court to enter such an award given the large disparity in earning capacity and Kathryn’s lack of
sustained employment history. However, we do find that it was an abuse of discretion to not credit
Samuel for the 12 months of alimony he paid in accordance with the since-vacated 2011 decree,
which decree did not require Kathryn to pay child support to Samuel even though he was at that
time awarded physical custody of the children. During that 1-year period in which Kathryn was
receiving alimony and not paying child support, she had the full benefit of alimony assistance
while attempting to transition into gainful employment. It was an abuse of discretion by the district
court to not credit Samuel for alimony previously paid. Accordingly, we modify the alimony
award’s duration from 60 months to 48 months.
CONCLUSION
For the foregoing reasons, we modify the district court’s child support award to $418 per
month as set forth herein, and we modify the duration of the alimony award from 60 months to 48
months. We otherwise affirm the judgment of the district court as modified.
AFFIRMED AS MODIFIED.
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