Peck v. Peck ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
PECK V. PECK
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).
JUSTIN K. PECK, APPELLEE,
V.
VICTORIA LYNN PECK, NOW KNOWN AS VICTORIA
LYNN ARROWSMITH, APPELLANT.
Filed November 16, 2021. No. A-20-919.
Appeal from the District Court for Dodge County: GEOFFREY C. HALL, Judge. Affirmed.
Timothy M. Schulz, of Yost Law Firm, for appellant.
Avis R. Andrews for appellee.
PIRTLE, Chief Judge, and MOORE and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Victoria Lynn Peck, now known as Victoria Lynn Arrowsmith, appeals the order of the
Dodge County District Court modifying the decree dissolving her marriage to Justin K. Peck.
Victoria contends that the district court abused its discretion in determining that a material
change of circumstances occurred warranting a modification of the dissolution decree,
specifically dividing final decisionmaking authority between the parties, expanding Justin’s
parenting time, and ordering Victoria not to move the children from Sarpy County or Cass
County without permission of the court or mutual agreement of the parties; calculating child
support and awarding Justin an abatement; and awarding Justin $500 in attorney fees. For the
reasons set forth herein, we affirm in part, and in part reverse and remand the cause with
directions.
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II. STATEMENT OF FACTS
1. PREVIOUS PROCEEDINGS
The parties were married in November 2012. During the parties’ marriage, they had twin
sons, James Harold Peck and River Dillon Peck, born in 2015. In January 2019, the district court
entered a decree dissolving the parties’ marriage. The court awarded the parties joint legal
custody of James and River with primary physical custody awarded to Victoria. Justin was
awarded visitation every other weekend starting at 5 p.m. on Friday until 5 p.m. on Sunday and a
weeknight visitation as mutually agreed upon by the parties. The court’s child support worksheet
listed Justin’s total monthly income as $4,506 and Victoria’s total monthly income as $1,560 and
provided Justin a credit in the amount of $175 per month in health insurance premiums paid for
the minor children. Justin was ordered to pay child support in the amount of $1,028 per month
which included an adjustment based upon the basic subsistence limitations found in § 4-218 of
the Nebraska Child Support Guidelines. The child support order also included a provision that
Justin’s child support obligation would be abated to 80 percent for the months of June, July, and
August. The dissolution decree further provided that Victoria could remove the minor children
from Nebraska to Missouri Valley, Iowa. The order and parenting plan provided that if Victoria
moved from Missouri Valley, she was required to provide advance notice to Justin, and the
parties were required to attempt to resolve issues in mediation prior to returning to the court.
Justin appealed to this court; however, on May 31, 2019, his appeal was dismissed at his request.
Less than 1 month later, on June 20, 2019, Justin filed a complaint to modify the parties’
dissolution decree seeking legal and physical custody of the parties’ two minor children, or in the
alternative, that he be awarded joint legal and physical custody.
In October 2019, the district court entered a temporary order modifying Justin’s parenting
time to include every other weekend from 5 p.m. on Friday until Monday “when [Justin] shall
deliver the minor children to preschool.” On the alternating week, Justin’s weekday parenting
time was modified to specify that it was to occur from 5 p.m. to 8 p.m. in Bellevue, Nebraska,
where Victoria had moved. The parties were ordered to comply with all other terms of the
original decree.
2. MODIFICATION HEARING
The modification hearing was held in February and August 2020. Witnesses at the
hearing included Victoria; Justin; Alicia Hilker, Justin’s friend; and Renee Peck, Justin’s mother.
The following is a summary of evidence adduced at the hearing governing the status of the
parties and their children.
(a) Justin
From the time of the original dissolution to the time of the modification hearing, Justin
has resided in Fremont, Nebraska, renting his home from his parents with the expectation that he
would purchase the home at a later date. At the time the decree was entered, Justin was
employed in Omaha, Nebraska, and also working in the Navy Reserves for which he provided
income verification to the court. His income was calculated at $4,506 monthly. Justin’s
enlistment ended in January 2020, and he no longer receives income from that source. Beginning
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in January after the decree was entered, Justin took another job in Omaha making $30.26 an
hour. He then received a raise on or about July 2020. At the time of the modification, Justin’s
monthly income was calculated at that rate totaling $5,385. Starting in January 2020, Justin
stated that he provided health care coverage for the children through his new employment. This
coverage was provided so long as Justin paid his monthly union dues in the amount of $36.25.
Justin indicated that his monthly dues would not change if only he, and not the children, were
covered under the policy. Justin stated that the amount he pays to cover himself or the children is
not calculated separately. However, Justin testified that he timely paid his union dues throughout
the course of his employment.
(b) Victoria
At the time of the original divorce decree Victoria was living in Missouri Valley and was
attending physical therapy school. She testified that she eventually discontinued her schooling
due to the difficulty she encountered in parenting and attending school at the same time. At the
time the original decree was entered, Victoria was unemployed, and her income for the child
support determination was calculated at the minimum wage of $9 per hour. At the time of the
modification trial, Victoria had remarried and moved in with her husband in Bellevue. She
testified that the timing of their move related to flooding of her Iowa home which she
documented in a letter to Justin dated March 28, 2019.
Upon moving to Bellevue, Victoria obtained employment as an appointment scheduler
earning $13 per hour. She worked between the hours of 8:30 a.m. and 4:30 p.m. and utilized her
husband, brother, parents, and grandparents to assist in providing childcare during her working
hours. Victoria quit this job after about 2 months to be a full-time mother. Victoria testified that
shortly thereafter, she began a 14-month cosmetology program. Upon completion of the
program, Victoria testified that she assumed she would earn at least $13 per hour.
Victoria testified that the two children receive health care coverage through Tricare as
dependents of Victoria’s husband. She further testified that she and her husband recently made
an offer on a home in Plattsmouth, Nebraska, and were awaiting final approval by the Veteran’s
Administration.
(c) Children
Both parties and the district court agreed that the children currently have a positive home
life, are receiving appropriate medical care, are active in church, attend school and perform well,
and actively engage in activities. At the time of trial, James was participating in dance and both
boys were expected to play baseball for the team that Justin would be coaching. When Victoria
moved to Bellevue, the boys were enrolled by both parents in preschool at Chandler View
Elementary School. The parents both attended the open house and subsequent parent-teacher
conferences at the school. Justin participated in visitation as ordered in the decree. Both parties
provided transportation to and from visitation during this time. At times, both parties appear to
have been unwilling to accommodate the other for extra visitation; however, on other occasions
they accommodated each other’s requests. Justin attends medical appointments scheduled by
Victoria for the children when he is available to do so. The parties agreed that they communicate
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regularly and are cordial with each other on most occasions. The evidence indicated that both
parties have adequate support systems with friends and family.
3. DISTRICT COURT ORDER
At the close of the evidence, the court took the matter under advisement for 20 minutes
and then provided an oral ruling regarding the modification of custody and support. In statements
made from the bench, the district court found that there was sufficient evidence showing a
material change in circumstances occurred which warranted a modification of the original
dissolution decree. Specifically, the court determined that there was a material change in
circumstances relating to Victoria’s relocation from Missouri Valley to Bellevue with the
expectation of closing on a home in Plattsmouth. Additionally, the court found that there was a
material change in circumstances as it related to the parties’ income because Victoria was not
working and Justin’s income had increased. Victoria’s income at the time of the decree was
calculated by the court utilizing an earning capacity of $9 per hour even though she was
unemployed. Victoria later obtained employment earning $13 per hour upon moving to
Nebraska. Following the modification trial, the court calculated Victoria’s earning capacity at
$13 per hour which was consistent with her wage rate in her former job and consistent with the
amount she testified she could earn upon completion of the cosmetology program. Justin’s
income at the time of the decree was calculated using his earnings from his prior employment
and his pay from the Navy Reserves. Because Justin had obtained new employment after the
decree, the court calculated his income utilizing his current earnings at the rate of $31.07 per
hour.
The court found that it was in the best interests of the children for the parties to continue
sharing joint legal custody with physical custody remaining with Victoria. However, the court
modified the original dissolution decree to provide that Victoria would have final
decisionmaking authority relating to the children’s education, medical, and dental treatment, and
Justin would have final decisionmaking authority regarding activities and religion.
The court provided that if Victoria changes the children’s school, hair color, or paints
their fingernails, Justin must be notified, and the parties are to discuss those changes. The parties
are to indicate during phone calls or video calls if they are unable to answer. The court stated that
“these parents, both [Victoria] and [Justin], need to communicate . . . . A call at the golf course, a
text message, that’s probably not sufficient.”
The court also ordered that Victoria must receive court approval or mutual agreement by
Justin if she intends to move from Sarpy or Cass County. The judge orally stated as follows: “if
she moves from Sarpy or Cass County, she’s going to have to come back to this Court, unless it’s
mutually agreed to. So, there’s not going to be any moves to the ocean, to Missouri Valley
anymore, anything like that without the Court’s approval unless you agree to it.”
Justin’s parenting time was increased to include every other weekend from 6 p.m. on
Friday to 9 a.m. on Monday with exchanges to occur at a fast food restaurant in Omaha. Justin’s
parenting time also included one overnight visit per week from 6 p.m. on Wednesday to 9 a.m.
on Thursday and summer visitation including the first full week in May, all of June and July, and
the first full week in August. Virtual contact with the other parent was to occur on Tuesdays and
Thursdays.
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In determining child support, the court stated that it used Victoria’s earning capacity and
Justin’s actual income and provided a $215 reduction for the children’s health care expenses for
Justin. The court stated that: “Under my equitable powers I can do that. He gets a reduced rate
because he is in the union because you do not get to be in the union for no reason. So, I put it at a
$215 credit for that.” The court also deviated from the Child Support Guidelines by ordering that
Justin was to receive a 20 percent reduction in child support for the entire year due to his
extended parenting time during the summer months. All other matters in the parenting plan were
ordered to remain the same. The court stated:
It is my hope that I don’t see the parents here again. I don’t think it’s a bad thing that the
children spend more time with [Justin]. He seems to be a good guy. [Victoria,] you need
to not look at it as a contest of who gets more. It’s about co-parenting. These are two
boys; they need a dad.
The court also ordered Victoria to pay $500 of Justin’s attorney fees based upon the
court’s finding that the lawsuit could have been prevented or made shorter if “there was better
planning and stability. And I think that [Justin] should not have to [bear] the additional expense
of that.” The court further stated to Victoria “You’re lucky it’s only $500. It could have been
much more. They prayed for more than that.” Victoria has timely appealed to this court.
III. ASSIGNMENTS OF ERROR
Victoria’s assignments of error, consolidated and restated, contend that the district court
abused its discretion in (1) finding that there was a material change in circumstances warranting
a modification of the January 2019 decree, specifically as it related to a material change as to the
relocation from Missouri Valley to Bellevue; dividing final decisionmaking authority for
activities, religion, education, medical, and dental treatment for the children despite continuing
the original dissolution decree’s award to the parties of joint legal custody of the minor children;
expanding Justin’s parenting time; and ordering Victoria not to move the children from Sarpy
County or Cass County without permission of the court or mutual agreement of the parties; (2)
calculating child support under the Nebraska Child Support Guidelines and awarding an
abatement due to the expansion of the Justin’s parenting time; and (3) awarding Justin $500 in
attorney fees.
IV. STANDARD OF REVIEW
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. Weaver v. Weaver, 308 Neb. 373, 954 N.W.2d 619 (2021);
VanSkiver v. VanSkiver, 303 Neb. 664, 930 N.W.2d 569 (2019). A judicial abuse of discretion
requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a
litigant of a substantial right and a just result. Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195(2004).
In an appeal of an equity action, the court tries the factual questions de novo on the
record and reaches a conclusion independent of the findings of the trial court. Weaver v. Weaver,
supra. In a review de novo on the record, an appellate court reappraises the evidence as
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presented by the record and reaches its own independent conclusions with respect to the matters
at issue. Id. When evidence is in conflict, 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 rather than another. Id.In an action for modification of a marital dissolution decree, the award of attorney fees is
discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the
absence of an abuse of discretion. Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014);
Pearrow v. Pearrow, 27 Neb. App. 209, 928 N.W.2d 430 (2019).
V. ANALYSIS
(1) MATERIAL CHANGE OF CIRCUMSTANCES
Victoria’s first assigned error relates to the district court’s determination that a material
change in circumstances occurred here which warranted a change to the court’s original decree.
She contends that the district court erred in determining that there was a material change in
circumstances which supported changes in the original legal custody arrangement, parenting
time, or the court’s statements governing future moves. In her brief, Victoria argues that her
relationship with the children has remained unchanged since the time of the original decree, that
moving to Bellevue was not a material change nor did it negatively impact Justin, that the court
was aware of the move to Bellevue at the time of the temporary order and still ordered sole
physical custody with Victoria, that it is more favorable to Justin that she and the children live in
Bellevue because Justin works in Omaha, and that the children’s safety and welfare needs are
being met.
A custody modification involves a two-step process: First, the party seeking modification
must show by a preponderance of the evidence a material change in circumstances has occurred
after the entry of the previous custody order which affects the best interests of the child; second,
the party seeking to modify must show that a modification is in the best interests of the child.
Jones v. Jones, 305 Neb. 615, 941 N.W.2d 501 (2020). A material change in circumstances “is
the occurrence of something which, had it been known to the marital dissolution court at the time
of the initial decree, would have persuaded the court to decree differently.” Weaver v. Weaver,
308 Neb. 373, 391, 954 N.W.2d 619, 632 (2021). The finding of a material change of
circumstances is a prerequisite to a modification of a child custody award. Weaver v. Weaver,
supra. Absent a material change of circumstances, a custody order will not be modified. Id. This
supports the rationale of avoiding repetitive litigation that can be unnecessary and harmful to a
child’s life. Id.In his complaint, Justin alleged that in the 6 months following the court’s prior decree, a
material change of circumstances had occurred in the following respects: (1) Victoria failed to
provide a stable environment for the children, (2) she returned to Nebraska and notified Justin
that she wanted to move to the west coast, (3) she failed to provide for the safety of the children,
(4) she failed to meet the children’s financial needs, (5) she exhibited increasingly unstable
behavior, (6) she failed to respond to Justin’s request for mediation, and (7) each party had a
change in income. Following a hearing on that complaint, notwithstanding the district court’s
finding that the children have a healthy, stable, and safe home life, the court found that there was
a material change in circumstances which justified a change in legal custody arrangements,
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parenting time, and child support. More specifically, the district court found that a material
change of circumstances occurred (a) due to Victoria’s move from Missouri Valley to Bellevue
with the expectation to move into a home in Plattsmouth and (b) the parties’ changes in income.
We will analyze those findings independently.
(a) Changes in Residence
The first basis upon which the district court determined a material change had occurred
since the original decree related to Victoria’s changes in residence. Specifically, the court found
that Victoria’s move from Missouri Valley to Bellevue, when coupled with her future plans to
move to Plattsmouth constituted a material change in circumstances warranting changes to the
original decree.
As the Nebraska Supreme Court stated in Schrag v. Spear, 290 Neb. 98, 105, 858 N.W.2d
865, 873 (2015):
We have previously observed that parental relocation cases are “among the most
complicated and troubling” cases that courts must resolve. This is so because of the
competing and often legitimate interests of the parents in proposing or resisting the move,
and because courts ultimately have the difficult task of weighing the best interests of the
child at issue “which may or may not be consistent with the personal interests of either or
both parents.” In these cases, courts are required to balance the noncustodial parent’s
desire to maintain their current involvement in the child’s life with the custodial parent’s
chance to embark on a new or better life. It is for this reason that such determinations are
matters initially entrusted to the discretion of the trial judge, and the trial judge’s
determination is to be given deference.
The court’s statement in Schrag is made in reference to relocation jurisprudence
governing the removal of a child from this state. The instant case does not present an issue of the
removal of children from Nebraska. It presents an issue of return to Nebraska. More specifically,
in connection with the initial decree where Victoria was provided sole physical custody, Victoria
requested and obtained permission from the district court to move with the children to Missouri
Valley. In the parenting plan incorporated into the original dissolution decree, the court
instructed that “[i]n the event the custodial parent plans to change the residence of the minor
children from Missouri Valley, Iowa, the custodial parent shall give advance notice of such
change of residence to the noncustodial parent,” followed by specific provisions governing the
timing of that notice and an opportunity to mediate issues which might relate to custody,
parenting time, visitation, and other access. There is no question that Victoria provided notice of
her intended move and the parties disputed why attempts to mediate any consequences failed.
Having not agreed to factors which could be implicated by the move, Justin filed a modification
complaint seeking to change custody and parenting time arrangements and the court made
certain modifications based upon its findings.
The Nebraska Supreme Court has never applied its relocation jurisprudence to a return of
a child to this jurisdiction and we are not suggesting that a full removal analysis should apply.
Instead, we are confronted with the issue of whether Victoria’s return to Bellevue from Missouri
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Valley amounted to a material change in circumstances as that term has been defined, and, on
this record, we hold that it did not.
Contrary to the district court’s conclusions here, although we recognize that moving and
relocating, whether interstate or intrastate, can present complicated and troubling scenarios for
the parents and children, we view the scenario presented in the instant case as neither
complicated nor troubling because it does not appear to pit competing interests of the parents,
nor suggest of adverse consequences to the parties’ minor children.
Justin’s complaint to modify came only 6 months after the court entered its original
decree. At that time, Victoria was awarded custody, was living in Missouri Valley, was
unemployed, and was attending school. The record reveals that subsequent to that decree being
entered, she moved to Bellevue to live with her future husband following a flooding event in
Missouri Valley which impacted her home. The record further reveals that after their marriage,
Victoria and her husband decided to move to a larger home in Plattsmouth. But unlike exigencies
created by moves in some cases, we fail to see adverse consequences to Justin or the children as
a result of Victoria’s decisions here.
First, at the time Victoria moved to Bellevue, the children had not been enrolled in school
due to their young ages, so the move had no disruptive impact on their educational pursuits. In
fact, both Justin and Victoria executed enrollment paperwork for the children to attend preschool
in Bellevue and testified that the children were doing well in preschool. Second, Victoria’s move
to Bellevue to live with her future husband demonstrates a natural progression in her relationship
and afforded her the opportunity to stop working, by choice, so as to be more available for her
children. Third, there was evidence provided by both parties on how well the children were
doing. According to the record, both boys were healthy, were up-to-date on their medical
appointments, were able to participate in activities with both parents including, but not limited
to, trips to the park, the zoo, and the parents’ respective churches. Further, there was no evidence
which even suggested that Victoria’s new husband was a cause for concern as it relates to the
children. As the district court noted in its pronouncements from the bench, “[the children are]
healthy. For all [indications] they’re doing good” and “It sounds like [the children] have a
positive home life.” Fourth, Victoria’s move from Missouri Valley to Bellevue (eventually to
Plattsmouth if that move occurs) appears to have had no adverse impact on Justin who lives in
Fremont and works in Omaha. The evidence indicated that the distance between Fremont, where
Justin lives, and Missouri Valley and Bellevue or Plattsmouth was roughly the same and closer
to Justin’s primary work location in Omaha. In short, we fail to see how Victoria’s moves here
created competing interests in relation to Justin or the children or in any way adversely impacted
Justin’s ability to maintain his relationship with the children. And finally, as it relates to
Victoria’s request to move with her husband and children to a bigger house in Plattsmouth, even
the district court agreed that the move would provide a better school system for the children
while not suggesting of any adverse impact on Justin or the children.
We view Victoria’s change in residence to Bellevue followed by her request to move to
Plattsmouth as consistent with, and motivated by, improvement of quality of life, employment,
marriage and the needs of the children with no corresponding adverse impact on Justin or the
children. As such, we hold that the district court abused its discretion in finding that Victoria’s
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change in residences constituted a material change in circumstances which warranted
modification of the custody arrangement under the original decree.
(b) Change in Income
The district court’s second basis for finding that a material change in circumstances
occurred was due to the parties’ change in income. Although we agree that a material change in
income occurred here warranting a modification of child support as discussed in the next section
of this opinion, we fail to see how a change in income warrants a modification of the original
child custody arrangement. The district court appeared to use this factor as an additional
justification for making changes to the original joint legal custody arrangement and parenting
time for Justin, and for its admonition to Victoria to not make future moves from Sarpy County
or Cass County without seeking permission from the court. To the extent that the district court
was separately utilizing the parties’ change in income as a basis to modify the decree to change
custody, we find the court abused its discretion in doing so. As such, because we have found
there was no material change in circumstances to justify modifying the decree as it relates to
custody, we hold that the court abused its discretion in modifying provisions in the original
decree governing joint custody and parenting time. And as to the court’s admonition as to future
moves within the State of Nebraska, the Nebraska Supreme Court has held within the context of
removal jurisprudence, “an award of custody to a parent should not be interpreted as a sentence
to immobility.” State on behalf of Riley G. v Ryan G., 306 Neb. 63, 75, 943 N.W.2d 709, 719
(2020). The parties have not directed us to any caselaw which provides the district court with
authority to restrict intrastate moves without advance permission from the court and our
independent research has uncovered none. This is not to say future moves could not result in a
material change in circumstances as it relates to relevant inquiries in connection with our
modification jurisprudence; however, we hold the district court abused its discretion in requiring
Victoria to acquire permission from the court prior to making a move in the manner the district
court fashioned the order here.
(2) CHILD SUPPORT CALCULATION
Next, although Victoria does not contend that the court erred in finding a material change
in circumstances occurred which warranted a change in Justin’s child support obligation, she
does contend that the district court erred in calculating child support under the Nebraska Child
Support Guidelines and awarding an abatement due to the expansion of Justin’s parenting time.
Victoria first contends that the court erred when it calculated her income utilizing an
earning capacity at $13 per hour despite her unemployed status at the time of the modification.
She alleges that this calculation was speculative and unfair. We disagree.
Neb. Ct. R. § 4-204 states that the 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. The use of earning capacity in calculating child
support is useful when it appears that the parent is capable of earning more income than is
presently being earned. Roberts v. Roberts, 25 Neb. App. 192, 903 N.W.2d 267 (2017). A court
may deviate from the guidelines, but only if it specifically finds that a deviation is warranted
based on the evidence. Id. Without a clearly articulated justification, any deviation from the
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guidelines is an abuse of discretion. Id. The deviation must be specifically stated in its order or
the court must complete and file worksheet 5. Id.Victoria testified to earning $13 per hour as an appointment scheduler and that she would
“assume” she would make at least $13 per hour at the time she completed her cosmetology
program. Although she is currently unemployed, history has shown she is capable of earning $13
per hour, is currently obtaining education that will likely allow for earnings of at least that much,
and has the opportunity and present ability and apparent desire to obtain future employment.
Although at the time of the modification trial Victoria had chosen to be a stay at home parent,
her current status did not necessitate a child support calculation at a rate lower than what she
testified she was capable of earning before she made that choice and what she believed she
would make upon completion of the cosmetology program in which she was presently enrolled.
Having chosen to pursue the cosmetology program while currently conducting herself as a
stay-at-home mother, we cannot say that the prospect of future employment was speculative or
unfair. Following our de novo review of the record, we find that the district court’s calculation of
Justin’s child support obligation utilizing Victoria’s earning capacity calculated at the rate of $13
per hour is consistent with the guidelines. Accordingly, Victoria’s claim that the court erred in
assessing her earnings utilizing this earning capacity fails.
Victoria next contends that the district court erred in awarding Justin a $215 credit to his
child support obligation for his contributions to the children’s health insurance premiums. In its
pronouncement from the bench, the district court stated it awarded Justin a $215 credit on his
child support obligation for his contributions to the children’s health insurance premiums. In
doing so, the district court stated, “I gave him some health insurance for the children. Under my
equitable powers, I can do that.”
Section 4-215 of the Child Support Guidelines provides:
The increased cost to the parent for health insurance for the child(ren) of the
parent shall be prorated between the parents. When worksheet 1 is used, it shall be added
to the monthly support from line 7, then prorated between the parents to arrive at each
party’s share of monthly support on line 10 of worksheet 1. The parent requesting an
adjustment for health insurance premiums must submit proof of the cost for health
insurance coverage of the child(ren). The parent paying the premium receives a credit
against his or her share of the monthly support. If not otherwise specified in the support
order, “health insurance” includes coverage for medical, dental, orthodontic, optometric,
substance abuse, and mental health treatment.
The Nebraska Supreme Court ruled that parents claiming a deduction for health insurance
must present evidence of the amount paid for the children.
[T]he parent claiming a deduction for health insurance must show that he or she has
incurred an increased cost to maintain the coverage for the children over what it would
cost to insure himself or herself. The party claiming the deduction must show how much
of the health insurance premium is attributable to the children.
Noonan v. Noonan, 261 Neb. 552, 565, 624 N.W.2d 314, 325 (2001).
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Contrary to the district court’s finding here, Justin provided no evidence that he paid a
premium on behalf of the children and even expressly indicated that he paid no increase in
premium on the children’s behalf under his new employment arrangement. Having failed to offer
proof of paying health insurance premium costs on behalf of the children, the court erred in using
a $215 payment and credit on lines 8 and 11 of worksheet 1.
Victoria next argues that court erred in determining Justin’s retirement deduction in
calculating his monthly child support obligation. In its calculation, the court provided Justin with
a 4 percent deduction for retirement contributions on line 2.c. of worksheet 1.
Section 4-205 of the Child Support Guidelines provides:
The following deductions should be annualized to arrive at monthly net income:
....
(C) Retirement. Individual contributions, in a minimum amount required by a
mandatory retirement plan. Where no mandatory retirement plan exists, a deduction shall
be allowed for a continuation of actual voluntary retirement contributions not to exceed 4
percent of the gross income from employment or 4 percent from the net income from
self-employment.
This court has previously required evidence to be presented at trial in order to receive the 4
percent deduction for retirement contributions. Drabbels v. Drabbels, 25 Neb. App. 102, 902
N.W.2d 705 (2017) (finding that parent failed to present evidence that she currently makes
contributions to a retirement plan or to prove amount of contributions made and therefore
deduction was improper).
The district court provided both parties with a retirement deduction of 4 percent of gross
income but did not make any specific findings of fact relating to this deduction. Neither party
provided the district court with evidence relating to a mandatory retirement plan, nor was there
evidence submitted regarding actual voluntary retirement contributions. Although Justin
submitted paystubs, there is no indication that any contribution is being made to a retirement
plan on the deductions page. Additionally, no testimony was provided that either party is
enrolled in a retirement plan or would become enrolled in one. Accordingly, we hold the district
court erred in providing a retirement deduction on line 2.c. of worksheet 1. And although Justin
did not cross-appeal the issue of the court erroneously allowing a retirement deduction for
Victoria, we find the inclusion of that deduction without direct evidence of contribution to be
plain error.
Lastly, Victoria contends that it was an error to order a yearlong abatement of the child
support due to the additional parenting time awarded to Justin under the modified custody
arrangement. We agree. Because we found that there was no material change in circumstances
warranting a modification of custody and parenting time, as provided above, we additionally find
that it was an error for the court to adjust the child support award to account for the award of
additional time. Therefore, due to the court improperly awarding additional parenting time, the
change in support based on that award is likewise improper and the yearlong abatement is
reversed.
Based upon the aforementioned determinations, we find that the court’s calculation of
Justin’s monthly child support obligation was in error. Accordingly, we reverse the district court
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regarding its determination as to the revised child support obligation and remand for the district
court to recalculate the child support obligation after removing the retirement deduction, health
insurance credit, and yearlong abatement.
(3) ATTORNEY FEES
Victoria’s final assignment of error is that the district court abused its discretion in
awarding Justin $500 in attorney fees.
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 recovery of attorney
fees. Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014); Schriner v. Schriner, 25 Neb. App.
165, 903 N.W.2d 691 (2017). A uniform course of procedure exists in Nebraska for the award of
attorney fees in dissolution cases, modification actions, or other cases involving domestic
relations. See, Neb. Rev. Stat. § 42-351(1) (Reissue 2016); Garza v. Garza, supra.
Here, having determined that the district court abused its discretion in determining that a
material change of circumstances existed warranting a change in the parties’ custody
arrangement, Justin did not prevail at the district court level on most of his claim. And although
we find some alteration to Justin’s child support obligation was warranted, said alteration
resulted in only a slight increase to Justin’s child support obligation. We find that the district
court abused its discretion in ordering Victoria to pay $500 of Justin’s attorney fees.
VI. CONCLUSION
In sum, we conclude that the district court abused its discretion in determining that a
material change of circumstances existed warranting the modification of the custody, parenting
time, and final decisionmaking authority. Accordingly, we reverse the district court’s order
modifying the legal custody of the minor children adjusting final decisionmaking authority and
modifying parenting time. We further find that the district court abused its discretion in
prohibiting Victoria from leaving Sarpy or Cass County without the district court’s permission or
by Justin’s agreement and reverse and vacate that portion of the modification decree. We further
reverse and vacate the district court’s award of attorney fees payable by Victoria to Justin.
Finally, although the court properly determined that a modification of child support was
warranted, we reverse the court’s determination of child support and remand for the district court
to recalculate the child support obligation after removing the retirement deduction, health
insurance credit, and yearlong abatement.
AFFIRMED IN PART, AND IN PART REVERSED
AND REMANDED WITH DIRECTIONS.
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