Hall v. Hall , 26 Neb. Ct. App. 877 ( 2019 )

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HALL v. HALL
Cite as 26 Neb. Ct. App. 877
Jennifer Jo H all, now known as
Jennifer Jo Johnson, appellant,
v. K evin James H all, appellee.
___ N.W.2d ___
Filed February 5, 2019. No. A-17-1328.
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 which will be
affirmed absent an abuse of discretion by the trial court.
2. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court bases its decision upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Child Custody: Modification of Decree: Proof. Ordinarily, custody
of a minor child will not be modified unless there has been a material
change in circumstances showing that the custodial parent is unfit or that
the best interests of the child require such action. First, the party seeking
modification must show a material change in circumstances, occurring
after the entry of the previous custody order and affecting the best inter-
ests of the child. Next, the party seeking modification must prove that
changing the child’s custody is in the child’s best interests.
4. Modification of Decree: Words and Phrases. A material change in
circumstances means the occurrence of something which, had it been
known to the dissolution court at the time of the initial decree, would
have persuaded the court to decree differently.
5. Modification of Decree. Changes in circumstances which were within
the contemplation of the parties at the time of the decree are not material
changes in circumstances for purposes of modifying a divorce decree.
6. Motions to Dismiss: Directed Verdict. A motion for directed verdict in
a jury trial is equivalent to a motion to dismiss in a nonjury trial.
7. Motions to Dismiss: Proof. In a court’s review of evidence on a motion
to dismiss, the nonmoving party is entitled to have every controverted
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fact resolved in his or her favor and to have the benefit of every infer-
ence which can reasonably be drawn therefrom, and where the moving
party’s evidence meets the burden of proof required and the mov-
ing party has made a prima facie case, the motion to dismiss should
be overruled.
8. Child Support: Rules of the Supreme Court. As a general matter,
child support obligations should be set according to the provisions of the
Nebraska Child Support Guidelines.
9. ____: ____. A court may deviate from the Nebraska Child Support
Guidelines, but only if it specifically finds that a deviation is warranted
based on the evidence.
10. ____: ____. Absent a clearly articulated justification, any deviation from
the Nebraska Child Support Guidelines is an abuse of discretion.
11. Child Support. 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.
Appeal from the District Court for Nemaha County: Julie
D. Smith, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Adam R. Little, of Ballew Hazen, P.C., L.L.O., for appellant.
Allen Fankhauser, of Fankhauser, Nelsen, Werts, Ziskey &
Merwin, P.C., L.L.O., for appellee.
Pirtle, Bishop, and A rterburn, Judges.
Pirtle, Judge.
INTRODUCTION
Jennifer Jo Hall, now known as Jennifer Jo Johnson, appeals
from the order of the Nemaha County District Court granting
the complaint to modify decree filed by Kevin James Hall
regarding child support and the district court’s granting of a
“motion for a directed verdict” which dismissed Jennifer’s
“[c]ounter-[c]omplaint” regarding child custody. She claims
the district court erred when it found that she had not presented
evidence of a material change in circumstances regarding child
custody and in its calculation of child support. For the reasons
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that follow, we affirm in part, and in part reverse and remand
with directions.
BACKGROUND
The parties were married and had one minor child as a result
of the marriage, Cameron T. Hall, born in October 2012. The
parties divorced by a decree of dissolution entered on January
21, 2016. Kevin was granted sole physical custody of Cameron
with at least 150 days of parenting time reserved for Jennifer.
Jennifer has since remarried.
Jennifer has worked for a hospital since the decree of dis-
solution was entered. At the time of the decree, she earned
$21 per hour and worked a schedule that was composed of
three 12-hour shifts each week on a 3-week rotation with 2 of
those weeks consisting of overnight shifts and 1 week consist-
ing of day shifts. At the time of the trial on the complaint and
­counter-complaint, Jennifer had gained seniority in her posi-
tion, allowing her more flexibility in choosing her shifts. She
now has a husband and two nearby friends who are able to
assist her with childcare. Her wages also have increased to an
average of approximately $5,452.35 per month.
Kevin was earning $3,200 a month, or approximately $18.46
per hour, at the time of the decree. Kevin now earns $17 per
hour. Kevin testified that he could earn up to $22 per hour if he
commuted to Omaha or Lincoln, Nebraska, but that in order to
care for Cameron, he chose not to commute.
The decree called for Jennifer to have parenting time with
Cameron every other week from Thursday in the morning to
Sunday at 7 p.m. She would also have Cameron 1 day a week
during the weeks she did not have weekend parenting time with
him. Jennifer could also take 2 weeks of vacation per year with
Cameron, and the parties rotated various holidays on even and
odd years. However, the parties have often modified this plan
to accommodate Jennifer’s work schedule. Jennifer will send
her work schedule to Kevin to let him know what days she will
be able to have Cameron. She is also able to occasionally have
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Cameron after school for a couple of hours. Jennifer testified
that during the transitions between the parties, Cameron ques-
tions, resists, and is sometimes anxious about them. She also
testified that the transitions have caused strained communica-
tion between her and Kevin, as well as miscommunication as to
when and where Cameron should be picked up.
The district court granted a “directed verdict” in favor of
Kevin with regard to modification of custody, finding that
there had been no material change in circumstances which
would warrant modification. In determining child support, the
district court found that Kevin’s reduction in income was not
voluntary for the purposes of changing the child support calcu-
lations. The district court used the parties’ new income levels
and adjusted their deductions. In the decree for dissolution, the
district court called for a deviation in the child support and
used worksheet 3 of the Nebraska Child Support Guidelines
to calculate the child support given the 150 days of parenting
time that Jennifer would have. The district court found that a
continuation of the deviation and the use of worksheet 3 was
appropriate. However, the district court reduced the number of
days that Jennifer was given credit for from 150 to 115. The
final child support calculation changed Jennifer’s payment
from $350 to $451 per month. The district court found that this
change was a change of more than 10 percent and, thus, consti-
tuted a material change which required modification.
ASSIGNMENTS OF ERROR
Jennifer alleges that the district court abused its discretion
in failing to find that a material change in circumstances had
occurred since the decree was entered, in failing to find that
it was in the child’s best interests to modify the decree, and
in entering a child support calculation inconsistent with the
Nebraska Child Support Guidelines.
STANDARD OF REVIEW
[1,2] Modification of a dissolution decree is a matter
entrusted to the discretion of the trial court, whose order is
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reviewed de novo on the record, and which will be affirmed
absent an abuse of discretion by the trial court. Hopkins v.
Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). An abuse of
discretion occurs when a trial court bases its decision upon
reasons that are untenable or unreasonable or if its action is
clearly against justice or conscience, reason, and evidence.
Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
ANALYSIS
Modification of Custody.
[3-5] Ordinarily, custody of a minor child will not be modi-
fied unless there has been a material change in circumstances
showing that the custodial parent is unfit or that the best inter-
ests of the child require such action. Whilde v. Whilde, 298
Neb. 473, 904 N.W.2d 695 (2017). First, the party seeking
modification must show a material change in circumstances,
occurring after the entry of the previous custody order and
affecting the best interests of the child. Id. Next, the party
seeking modification must prove that changing the child’s
custody is in the child’s best interests. Id. A material change
in circumstances means the occurrence of something which,
had it been known to the dissolution court at the time of the
initial decree, would have persuaded the court to decree dif-
ferently. Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d
541 (2004). Changes in circumstances which were within the
contemplation of the parties at the time of the decree are not
material changes in circumstances for purposes of modifying
a divorce decree. McDonald v. McDonald, 21 Neb. Ct. App. 535,
840 N.W.2d 573 (2013), citing Desjardins v. Desjardins, 239
Neb. 878, 479 N.W.2d 451 (1992).
[6,7] The district court disposed of the “[c]ounter-
[c]omplaint” for modification of custody by granting Kevin’s
oral “motion for a directed verdict” at the end of all the evi-
dence. A motion for directed verdict in a jury trial is equiva-
lent to a motion to dismiss in a nonjury trial. See Kreus v.
Stiles Service Ctr., 250 Neb. 526, 550 N.W.2d 320 (1996).
This was a nonjury trial. In a court’s review of evidence on
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a motion to dismiss, the nonmoving party is entitled to have
every controverted fact resolved in his or her favor and to
have the benefit of every inference which can reasonably
be drawn therefrom, and where the moving party’s evidence
meets the burden of proof required and the moving party has
made a prima facie case, the motion to dismiss should be
overruled. See id. For the reasons stated below, we cannot say
the district court erred in granting the motion.
First, Jennifer argues that the district court improperly
excluded evidence regarding the material change in circum-
stances. Jennifer specifically notes that the district court sus-
tained several objections to testimony related to the decree
and the understanding each party had of the decree and that
the district court did not allow testimony regarding the fitness
of the parents. With regard to the objections, any error alleged
is harmless error because the district court allowed Jennifer
to recall the impacted witness to ask the questions that she
believed were improperly excluded a second time. During
the additional direct examination, Kevin had only two objec-
tions which were sustained: one for speculation on an alleg-
edly overbroad question and one for leading the witness. As
such, it is unclear what additional evidence was excluded, as
Jennifer alleges, that was not later introduced in the additional
direct examination.
Similarly, it is not clear how the exclusion of evidence
regarding the fitness of the parents harmed Jennifer’s case.
Neither party had alleged that the other was an unfit parent.
Jennifer testified that she thought Kevin was a good parent.
This fact has not changed since the original entry of the decree,
and thus, it is not a material change. As such, additional testi-
mony as to the fitness of the parents, without some correlation
to an allegation of a material change, would not be relevant
to the issue at hand. Therefore, we determine that the district
court did not err in excluding this evidence.
Jennifer next argues that there are three material changes in
circumstances that are grounds for a modification: (1) changes
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in Jennifer’s work schedule, including flexibility in setting
her work schedule and the availability of a stronger support
system; (2) the number of transitions required in order for
Jennifer to exercise her parenting time is having a negative
effect on Cameron’s behavior; and (3) the number of transi-
tions and Jennifer’s varying work schedule create opportunities
for ongoing conflict and negatively impacts the parties’ ability
to communicate effectively.
The evidence shows that at the dissolution hearing in 2016,
the parties had agreed to custody, visitation, and child support
resulting in a parenting plan the parties provided to the court.
At that time, the parties contemplated that Jennifer’s schedule
would require significant flexibility from the parenting plan in
order to have adequate parenting time. Since the time of the
decree, Jennifer has remained with the same employer, keep-
ing a relatively similar schedule in terms of hours and shifts
she must work, and she works with Kevin to schedule her
parenting time. The schedule of visitation has not changed and
continues as contemplated by the parties. However, Jennifer
argues that now that she has seniority, she is better able to
move her schedule around so that it fits her parenting time and
thus would be able to have more parenting time. She concedes
that this increase in seniority was foreseeable at the time of
the decree, indicating that she took it into consideration when
creating the parenting plan and that it is only the fact that it
occurred so quickly which was not anticipated and is at issue.
The implication of this line of argument is that if the gain in
seniority had occurred at the expected pace, then it would not
have been a material change in circumstances—even though
the impact of that change, the ability to dictate a schedule,
is the same whether it occurred quickly or at an expected
pace. Further, although Jennifer testified that she currently
has seniority and is able to make these adjustments to her
schedule, the evidence of her schedule in the months prior to
the trial show that she was not able to maintain the current
parenting plan’s scheduled visits without accommodations. As
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such, it appears that Jennifer’s schedule is not quite as flex-
ible as she represented in her testimony. Thus, we cannot say
that the change in seniority would constitute a material change
in circumstances.
Jennifer further asserts that her friends and her new hus-
band represent a support network that did not exist at the time
of the decree. She alleges they would assist her by watch-
ing Cameron if she did need to work during her parenting
time. However, Jennifer indicated that at the time the parties
entered into the decree, they had specifically contemplated
whether she would be able to have someone other than herself
watch Cameron while she was working. This consideration is
included in the parenting agreement, because Kevin has the
right of first refusal to care for Cameron if Jennifer is work-
ing on her weekends. Although the parties did not contemplate
the specific individuals now identified by Jennifer, it was clear
that they considered and rejected allowing others to care for
Cameron if they were available to do so. Therefore, the addi-
tion of these new individuals has not impacted the consider-
ations in the decree and do not constitute a material change
in circumstances.
The second alleged material change is how the transitions
are impacting Cameron. Jennifer testified that Cameron often
did not want to leave the parent he was with at the time. It
is to be expected that children will have some difficulty with
transitions. However, the number of transitions were consid-
ered at the time of the decree. The parenting plan allows for
two transitions each week for the specified parenting time, as
well as whatever transitions are necessary when the parties
exercise their right of first refusal to care for Cameron. As
such, the number of transitions and their impact on Cameron
were not material changes in circumstances because the par-
ties contemplated the number of transitions at the time of the
original decree.
Finally, Jennifer alleges that the contentious communications
between her and Kevin are a material change in circumstances.
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Although this court has previously recognized that conflict
between parties can constitute a material change in circum-
stances, see, Schriner v. Schriner, 25 Neb. Ct. App. 165, 903
N.W.2d 691 (2017), and State on behalf of Maddox S. v.
Matthew E., 23 Neb. Ct. App. 500, 873 N.W.2d 208 (2016), it does
not appear that the alleged conflict rises to the level present in
those other cases. Much of the communication revolved around
the present litigation or around the activities that Cameron
participated in that the parties desired to attend. As such, the
evidence represents communication that either was atypical
or would continue even if Jennifer’s proposed parenting plan
was put into action. Therefore, this conflict did not constitute a
material change in circumstances.
Individually and collectively, the alleged changes do not rise
to the level of a material change in circumstances. However,
Jennifer also alleges that the district court failed to properly
consider the best interests of the child. Because we have deter-
mined that there was no material change in circumstances,
there is no need to go to this second step of the analysis. See
Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695 (2017).
Therefore, the district court did not abuse its discretion in
rejecting the complaint to modify child custody.
Modification of Child Support.
[8-10] As a general matter, child support obligations should
be set according to the provisions of the Nebraska Child
Support Guidelines. Gress v. Gress, 274 Neb. 686, 743 N.W.2d
67 (2007). A court may deviate from the Nebraska Child
Support Guidelines, but only if it specifically finds that a devi-
ation is warranted based on the evidence. Id. Absent a clearly
articulated justification, any deviation from the Nebraska Child
Support Guidelines is an abuse of discretion. Id.
Jennifer alleges that the district court erred in failing to cal-
culate Kevin’s income at a higher level, in failing to properly
calculate Kevin’s deduction for retirement, and in failing to
use the correct division of days on worksheet 3.
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[11] In determining income, the court may use earning
capacity in lieu of a parent’s actual, present income. See Neb.
Ct. R. § 4-204 (rev. 2016). 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 obliga-
tion would seriously impair the needs of the children. Claborn
v. Claborn, 267 Neb. 201, 673 N.W.2d 533 (2004). Jennifer
argues that Kevin should be credited with a higher income
because he could commute to Omaha or Lincoln and earn a
larger income and because his present earnings were not in
evidence beyond his own testimony. It is undisputed in this
case that Kevin reduced his income by deciding to no longer
commute to Lincoln or Omaha where he would be able to
garner higher wages. However, as noted in Kevin’s brief, the
parties had previously agreed that Cameron would attend the
public schools in Johnson, Nebraska, thus requiring Kevin
to reside nearby. He lives and works a few miles away in
Auburn, Nebraska. As such, using the actual income of Kevin
was appropriate.
We also find the argument that Kevin’s income was not
in evidence to be unpersuasive. First, Kevin testified that his
income was $17 per hour. Second, exhibit 14, the child support
calculation prepared by Kevin and offered as an “aid to the
[c]ourt,” contains a copy of one of Kevin’s current pay stubs
which lists his income as $17 per hour. Thus, it aids us in con-
firming Kevin’s testimony regarding his income. Finally, we
would also note that both exhibit 14 and exhibit 34, Jennifer’s
proposed child support calculation offered as an “aid to the
[c]ourt,” used the same figure for Kevin’s monthly income
which is derived from the $17 per hour wage. Because the par-
ties both put forward the same figure to be relied upon by the
district court, we find it was sufficiently proved that Kevin’s
income was $17 per hour. Therefore, using $17 per hour as the
basis to calculate his monthly income was appropriate.
Jennifer next argues that the district court improperly
included a deduction of $117.87 per month for retirement as
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part of Kevin’s child support calculation. The child support
guidelines allow a deduction equal to the minimum amount of
contribution in a mandatory plan or a continuation of the actual
amount of voluntary contributions not to exceed 4 percent of
gross employment income. See Neb. Ct. R. § 4-205 (rev. 2016).
The district court came to the amount of $117.87 because it is
4 percent of Kevin’s gross income. Jennifer is correct in stating
that there was no testimony regarding retirement deductions
and that the only evidence entered was exhibit 16, Kevin’s
2016 tax returns, which do not show retirement savings of the
level ordered. However, the pay stub in exhibit 14 shows that
Kevin was making contributions to a 401K retirement plan.
Further, Jennifer and Kevin, again, each used the same number
that the district court did in their proposed child support cal-
culations. Aside from Jennifer’s supplying this number to the
district court to use in the calculation, there was no testimony
elicited by Jennifer that this number was incorrect. As such, we
cannot say that allowing Kevin a deduction of $117.87 where
such amount was within the bounds dictated by the child sup-
port guidelines was inappropriate.
Finally, Jennifer argues that the district court abused its
discretion by using an incorrect division of days on the child
support worksheet. The original child support calculation used
worksheet 3 and put the division of time as 150 days for
Jennifer and 215 days for Kevin. When the district court cal-
culated the child support for the modification, it used work-
sheet 3 and determined the division of time as 115 days for
Jennifer and 250 days for Kevin. However, the district court
found no material change in circumstances to exist warranting
a change in custody or an adjustment to the division of parent-
ing time prescribed in the original, agreed-upon parenting plan.
As such, there is no basis for the district court to adjust the
days attributed to each party on the child support calculation.
We note that the evidence demonstrates that the parties have
adhered to the original parenting plan but have also been flex-
ible in allowing Jennifer additional time due to the differences
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in the parties’ work schedules. Accordingly, we find the district
court abused its discretion by departing from the agreed-upon
parenting time provided for in the parenting plan for purposes
of calculating child support.
Because we have determined that the child support calcula-
tion did not use the original division of days, we reverse the
order as to this issue only and remand the cause to the district
court to recalculate the child support using the division of
150 and 215 days of parenting time. The use of the incomes
and deductions in the calculation of child support is other-
wise affirmed.
CONCLUSION
We conclude the district court did not abuse its discretion
in finding there had been no material change in circumstances
as to warrant a change of custody or the visitation schedule in
the parenting plan. We further conclude the district court did
not abuse its discretion in using the parties’ current income
and deductions in its child support calculation. However,
the district court, in its child support calculation, did abuse
its discretion by altering the division of parenting days pre-
scribed by the parenting plan. Thus, the order of the district
court is affirmed in part, and in part reversed and remanded
with directions to recompute child support in accordance with
this opinion.
A ffirmed in part, and in part reversed
and remanded with directions.