Caniglia v. Caniglia

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930 285 NEBRASKA REPORTS
in § 21-2014(21). For evidence to be relevant to the standing
issue in this case, the evidence must show whether shares of
WBI were registered in Bruce’s name or whether Bruce was a
beneficial owner of shares to the extent of rights granted by a
nominee certificate on file with WBI. The exhibits at issue do
not contain information regarding these facts. Thus, we deter-
mine that the district court did not abuse its discretion when it
did not receive these exhibits into evidence.
CONCLUSION
The district court did not err when it determined that Bruce
and Annette lacked standing to bring this action for the judicial
dissolution of WBI. The district court did not abuse its discre-
tion when it did not admit exhibits 19, 20, and 22 through 27
into evidence. Accordingly, we affirm the order of the district
court which dismissed the complaint.
Affirmed.
McCormack, J., participating on briefs.
Wright, J., not participating.
Cynthia R ae Caniglia, appellant, v.
Jason Arthur Caniglia, appellee.
___ N.W.2d ___
Filed May 17, 2013. No. S-12-794.
1. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
2. Modification of Decree: Appeal and Error. Modification of a dissolution decree
is a matter entrusted to the discretion of the trial court, whose order is reviewed
de novo on the record, and which will be affirmed absent an abuse of discretion
by the trial court.
3. Parent and Child: Child Support. Support of one’s children is a fundamental
obligation which takes precedence over almost everything else.
4. Statutes. Absent a statutory indication to the contrary, words in a statute will be
given their ordinary meaning.
5. Modification of Decree: Minors. A decree in a divorce case, insofar as minor
children are concerned, is never final in the sense that it cannot be changed.
6. Statutes. Statutes relating to the same subject, although enacted at different
times, are in pari materia and should be construed together.
Nebraska Advance Sheets
CANIGLIA v. CANIGLIA 931
Cite as 285 Neb. 9307. ____. All statutes relating to the same subject are considered as parts of a homo-
geneous system, and later statutes are considered as supplementary to preced-
ing enactments.
8. Modification of Decree: Child Support: Proof. A party’s responsibility under
Neb. Rev. Stat. § 42-364.17 (Reissue 2008) for reasonable and necessary medical,
dental, and eye care; medical reimbursements; daycare; extracurricular activity;
education; and other extraordinary expenses of the child to be made in the future
may be modified if the applicant proves that a material change in circumstances
has occurred since entry of the decree or a previous modification.
9. Evidence: Appeal and Error. Where credible evidence is in conflict on a mate-
rial issue of fact, the appellate court considers, and may give great weight to, the
fact that the trial court heard and observed the witnesses and accepted one ver-
sion of the facts rather than another.
Appeal from the District Court for Sarpy County: William
B. Zastera, Judge. Affirmed.
Margaret M. Zarbano for appellant.
Kristina B. Murphree and Steven J. Riekes, of Marks, Clare
& Richards, L.L.C., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Cassel, J.
INTRODUCTION
In this appeal from an order modifying a dissolution
decree’s financial arrangements for a child, the primary ques-
tion is whether Nebraska law allows the allocation of a child’s
extraordinary expenses, based on Neb. Rev. Stat. § 42-364.17(Reissue 2008), to be modified. Because extraordinary expenses
are merely an incident of the parents’ responsibility to support
their child, these expenses can be modified. And considering
the modifications ordered by the district court in light of the
evidence, we find no abuse of discretion. We affirm the modi-
fication of the parties’ dissolution decree.
BACKGROUND
The marriage of Cynthia Rae Caniglia and Jason Arthur
Caniglia was dissolved by consent decree in June 2010. This
decree required Jason to pay child support for the parties’
minor child in the amount of $722 per month and to be
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responsible for half of “extra curricular [sic] activities, educa-
tion . . . and other extraordinary expenses of the minor child,”
pursuant to § 42-364.17. A subsequent order nunc pro tunc
ordered each party to pay 50 percent of work-related child-
care expenses.
After entry of the divorce decree, Jason became unemployed.
He filed a petition to modify the decree, requesting, among
other things, modification of child support and of his responsi-
bility for extraordinary expenses and childcare expenses.
Following a hearing on Jason’s petition for modification,
the district court entered a modification order finding that
there had been a material change in circumstances warranting
a change in child support and some of Jason’s other financial
obligations to the child. The court reduced Jason’s child sup-
port obligation to $375 per month and his responsibility for
work-related daycare expenses to 36 percent. The court left
Jason responsible for 50 percent of extracurricular activities,
education, and other extraordinary expenses, but modified the
provision addressing these expenses “to the extent that the cus-
todial parent may not incur extra expenses not currently being
paid, without the approval of the non-custodial parent.”
Cynthia timely appeals. Pursuant to statutory authority, we
moved the case to our docket.1
ASSIGNMENTS OF ERROR
Cynthia alleges, reordered and restated, that the district
court erred in (1) modifying the extraordinary expenses provi-
sion arising under § 42-364.17, (2) determining that there was
a change in circumstances warranting a reduction in Jason’s
child support and childcare contribution percentage, and (3)
modifying the decree of dissolution to require Jason to contrib-
ute only to expenses of which he approves.
STANDARD OF REVIEW
[1] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.2
1
See Neb. Rev. Stat. § 24-1106 (Reissue 2008).
2
United States Cold Storage v. City of La Vista, ante p. 579, ___ N.W.2d
___ (2013).
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Cite as 285 Neb. 930[2] 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.3 The same
standard applies to the modification of child support.4
ANALYSIS
Modification of Extraordinary
Expenses P rovision
We begin by quoting the pertinent language of § 42-364.17,
which states that “[a] decree of dissolution . . . shall incor-
porate financial arrangements for each party’s responsibility
for reasonable and necessary medical, dental, and eye care,
medical reimbursements, day care, extracurricular activity,
education, and other extraordinary expenses of the child and
calculation of child support obligations.”
Cynthia rather tersely argues that modification of child sup-
port is addressed in Neb. Rev. Stat. § 42-364(6) (Cum. Supp.
2012) and Neb. Ct. R. § 4-217 and that “[t]here is nothing in
statute that allows for modification of the provisions under
§42-364.17.”5 Although she does not amplify the connection,
we understand her argument on brief as asserting that neither
§ 42-364(6) nor § 4-217 expressly refers to extraordinary
expenses or § 42-364.17. At oral argument, Cynthia simply
adhered to a straightforward argument that expenses allocated
under § 42-364.17 are not subject to modification.
[3,4] Contrary to Cynthia’s argument on brief, the language
of § 42-364(6) is broad enough to encompass extraordinary
expenses of a child. The first sentence of § 42-364(6) permits
“[m]odification proceedings relating to support, custody, par-
enting time, visitation, other access, or removal of children
from the jurisdiction . . . .” (Emphasis supplied.) Cynthia
provides no authority for the proposition that “support” under
§ 42-364(6) does not include the items listed in § 42-364.17.
3
Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009).
4
See Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009).
5
Brief for appellant at 9.
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Support of one’s children is a fundamental obligation which
takes precedence over almost everything else.6 Absent a statu-
tory indication to the contrary, words in a statute will be given
their ordinary meaning.7 “Support” is commonly defined as “a
means of livelihood, sustenance, or existence.”8 The common
meaning of “support” clearly includes all of the incidents of
a child’s needs. Of course, one incident of “support” is the
regular monthly payment established under the guidelines.9
But the guidelines recognize other incidents of “support” that
are wholly10 or partly11 outside of the monthly installment.
The expenses stated in § 42-364.17—including, among others,
extracurricular, education, and other extraordinary expenses—
merely represent other incidents of “support” to be addressed
in a dissolution decree.
The omission of the words “extraordinary expenses” in
§ 4-217 provides no support for Cynthia’s argument. Section
4-217 merely provides a formula permitting a rebuttable pre-
sumption of a material change in circumstances. Elsewhere,
the child support guidelines contemplate that extraordinary
or unusual expenses will be addressed outside the guide-
lines’ framework.12
[5] Under our case law, provisions of a divorce decree relat-
ing to children can always be modified. As we have stated, “A
decree in a divorce case, insofar as minor children are con-
cerned, is never final in the sense that it cannot be changed.”13
Consistent with this principle, Nebraska courts have ordered
6
Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004).
7
J.M. v. Hobbs, 281 Neb. 539, 797 N.W.2d 227 (2011).
8
Webster’s Third New International Dictionary of the English Language,
Unabridged 2297 (1993).
9
See Neb. Ct. R. § 4-207.
10
See Neb. Ct. R. § 4-214.
11
See Neb. Ct. R. § 4-215(B) (rev. 2011).
12
See Neb. Ct. R. § 4-203 (rev. 2011).
13
Wulff v. Wulff, 243 Neb. 616, 619, 500 N.W.2d 845, 849 (1993).
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CANIGLIA v. CANIGLIA 935
Cite as 285 Neb. 930modification of child custody,14 child support,15 visitation,16
supervised parenting time,17 responsibility for childcare
expenses,18 and uninsured medical expenses.19
[6,7] Extraordinary expenses are no different than these
other, clearly modifiable issues relating to children. Although
§ 42-364.17 was enacted much later than the original statutory
scheme governing child support,20 § 42-364.17 is now part of
this same statutory scheme. Statutes relating to the same sub-
ject, although enacted at different times, are in pari materia
and should be construed together.21 All statutes relating to the
same subject are considered as parts of a homogeneous system,
and later statutes are considered as supplementary to preced-
ing enactments.22 Considering that Neb. Rev. Stat. §§ 42-364to 42-364.16 (Reissue 2008 & Cum. Supp. 2012) explicitly
govern child support, which is undoubtedly modifiable,23 we
see no reason why provisions based on § 42-364.17 should not
be treated as a subset of child support and thus be subject to
modification as well.
An appellate court will not look beyond a statute to deter-
mine legislative intent when the words are plain, direct, or
unambiguous.24 The words of § 42-364.17 are plain, direct, and
unambiguous—the financial matters it governs are part of the
14
See, e.g., Capaldi v. Capaldi, 235 Neb. 892, 457 N.W.2d 821 (1990);
Schnell v. Schnell, 12 Neb. App. 321, 673 N.W.2d 578 (2003).
15
See, e.g., Incontro v. Jacobs, supra note 4.
16
See, e.g., Smith-Helstrom v. Yonker, 253 Neb. 189, 569 N.W.2d 243(1997).
17
See, e.g., Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526 (2001).
18
See, e.g., Mace v. Mace, 9 Neb. App. 270, 610 N.W.2d 436 (2000).
19
See, e.g., Marcovitz v. Rogers, 267 Neb. 456, 675 N.W.2d 132 (2004).
20
Compare Neb. Rev. Stat. § 42-353 (Cum. Supp. 2012).
21
Mahnke v. State, 276 Neb. 57, 751 N.W.2d 635 (2008).
22
Id.23
See Incontro v. Jacobs, supra note 4.
24
Moyera v. Quality Pork Internat., 284 Neb. 963, 825 N.W.2d 409 (2013).
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support that parents must provide to their children. Thus, we do
not consider the legislative history of § 42-364.17.
[8] We view § 42-364.17 in the context of the statutory
scheme governing child support. In this context, it is clear
that there is no persuasive reason for treating extraordinary
expenses any differently from other issues relating to children.
Thus, we hold that a party’s responsibility under § 42-364.17
for reasonable and necessary medical, dental, and eye care;
medical reimbursements; daycare; extracurricular activity; edu-
cation; and other extraordinary expenses of the child to be
made in the future may be modified if the applicant proves that
a material change in circumstances has occurred since entry of
the decree or a previous modification.
Our conclusion is consistent with the approach taken by
other states. We have found no state that prohibits the modifi-
cation of extraordinary expenses provisions in divorce decrees.
To the contrary, numerous states actively allow such modifica-
tion.25 In the interest of brevity, we have cited only a small but
representative selection of court opinions upholding the modi-
fication of extraordinary expenses provisions.
The district court did not err in determining that it had the
power to modify the extraordinary expenses provision of the
parties’ divorce decree.
Change in Circumstances
Cynthia also assigns error to the district court’s determi-
nation that there was a change in circumstances warranting
reduction in Jason’s child support and childcare contribution.
Essentially, she argues that he was at fault for his unemploy-
ment and should not have been granted a reduction in his
financial obligations to the minor child.
At the time of the divorce decree, Jason was employed by
Kellogg USA Inc. (Kellogg). Prior to entry of the decree, he
25
See, e.g., Chauvin v. Chauvin, 69 So. 3d 1192 (La. App. 2011); Pratt v.
Ferber, 335 S.W.3d 90 (Mo. App. 2011); Schorr v. Schorr, 96 A.D.3d 583,
948 N.Y.S.2d 14 (2012); Kaplan v. Bugalla, 188 S.W.3d 632 (Tenn. 2006);
Bjelland v. Bjelland, Nos. 2008-CA-000523-MR, 2008-CA-001852-MR,
2010 WL 2573879 (Ky. App. June 25, 2010) (unpublished opinion).
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Cite as 285 Neb. 930was convicted of third degree domestic assault and sentenced
to 130 days in jail. So as not to lose his job, he served much
of his jail sentence on the weekends. He began doing so
prior to entry of the decree. In September 2010, Jason took
a 2-month leave from work at the advice of his psychiatrist,
during which time he addressed his mental health issues and
alcoholism and completed his jail sentence. Kellogg did not
reinstate Jason after his leave, and in February 2011, it termi-
nated his benefits.
Based on the evidence presented before the district court,
there are two plausible explanations why Kellogg did not recall
Jason and ultimately terminated his employment. We review
the evidence in support of each explanation in turn.
Cynthia focuses on the evidence that termination of Jason’s
employment was caused by his conviction for third degree
domestic assault and his absenteeism. She cites solely to
Jason’s testimony at an earlier hearing—over 1 year prior
to the modification hearing—during which he stated that
Kellogg “terminated” his employment “[b]ecause [he] had to
serve some jail time, and it was an attendance policy out at
Kellogg’s, they have a strict attendance policy and [he] went
over the attend­ nce points.”
a
At the modification hearing, however, there was no tes-
timony that Jason’s employment was terminated due to his
conviction or alleged “absenteeism.” Much to the contrary,
Jason denied losing his job for employee misconduct, absen-
teeism, or other fault of his own and stated that he believed his
employment was terminated due to his mental health issues. As
for Jason’s leave from work, his psychiatrist testified that she
gave him a medical release from work for 2 months. According
to Jason, because of this medical release, he believed he had
medical authorization to be absent from work. Consistent with
this belief, once Jason’s condition improved and he received
authorization to return to work, he immediately informed
Kellogg that he could return to work on October 25, 2010. Yet
Kellogg did not reinstate him. From that date through January
2011, Kellogg neither recalled Jason to work nor gave notice
that his employment was terminated. In fact, Jason testified
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that Kellogg records showed his status during those months as
varying from “suspended indefinitely” to “illness with medi-
cal documentation.” It was not until February 11 that Jason
received notice that his employment had been terminated, at
which time he found alternative employment. In Jason’s new
employment, his gross yearly income was $25,971, as com-
pared to $44,344 at the time of the divorce decree.
[9] Although the evidence adduced at the modification hear-
ing supports two conflicting explanations for Jason’s loss of
employment, we give weight to the version accepted by the
district court. Where credible evidence is in conflict on a mate-
rial issue of fact, the appellate court considers, and may give
great weight to, the fact that the trial court heard and observed
the witnesses and accepted one version of the facts rather
than another.26 In the order of modification, the district court
explicitly accepted the evidence that Jason’s employment was
not terminated due to fault of his own, noting that “the loss of
[Jason’s] job at Kellogg’s was not willful on his part.” The dis-
trict court did not abuse its discretion in concluding that Jason
was not responsible for his loss of employment and consequent
reduction in income. Likewise, the district court did not abuse
its discretion in finding a change in circumstances sufficient
to reduce Jason’s child support and childcare contribution per-
centage. This assignment of error lacks merit.
Modification of Custodial Parent’s
Decisionmaking Authority
In Cynthia’s final assignment of error, she argues that the
district court abused its discretion in modifying the divorce
decree so that Jason would be responsible for a portion of
extraordinary expenses, including extracurricular activities,
only if he agreed to the expenses. She contends that this
deprives her of a custodial parent’s right and responsibility “to
make decisions regarding the welfare of the minor child includ-
ing extracurricular activities.”27 It is important to note that the
26
Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004).
27
Brief for appellant at 12.
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Cite as 285 Neb. 930court’s change applied only to “extra expenses not currently
being paid.” Thus, the court’s order did not affect ongoing
expenses already in place.
At the modification hearing, Jason presented evidence that
Cynthia incurred educational and extracurricular expenses for
the minor child “just to make everything as expensive as pos-
sible for [him].” While Cynthia denied doing so, it was within
the province of the district court to assess her credibility and
to accept or reject this testimony. By modifying the extraordi-
nary expenses provision so as to require Jason’s approval for
additional expenses, the court obviously adopted the view that
Cynthia had used her decisionmaking authority in a vindictive
manner. We accord weight to the district court’s acceptance of
this evidence.
In light of the evidence that Cynthia incurred extraordinary
expenses solely to create financial strain for Jason, we cannot
say that it was an abuse of discretion to modify the extraordi-
nary expenses provision to require Jason’s approval. We affirm
the modification of the divorce decree as ordered by the dis-
trict court.
CONCLUSION
In the absence of any persuasive reason why extraordinary
expenses should be treated differently than any other issue
regarding children, we hold that a party’s responsibility under
§ 42-364.17 for reasonable and necessary medical, dental,
and eye care; medical reimbursements; daycare; extracurricular
activity; education; and other extraordinary expenses of the
child to be made in the future may be modified if the applicant
proves that a material change in circumstances has occurred
since entry of the decree or a previous modification. Giving
weight to the district court’s acceptance of the evidence that
Jason’s employment was not terminated due to his own mis-
conduct and that Cynthia incurred extracurricular expenses so
as to financially burden Jason, we find no abuse of discretion
in the determination that there was a change in circumstances
warranting modification of the parties’ divorce decree. We
affirm the order of modification.
Affirmed.