Windham v. Kroll

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/11/2020 08:07 AM CST
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
WINDHAM v. KROLL
Cite as 307 Neb. 947Alyssa Lee Windham, appellee, v.
Rebecca Diane Kroll, appellant.
___ N.W.2d ___
Filed December 11, 2020. No. S-20-095.
1. Modification of Decree: Child Custody: Visitation: Child Support.
The proper legal standard to apply when modifying provisions pertain-
ing to custody, visitation, or support of a minor child is a question
of law.
2. Statutes: Appeal and Error. On questions of law, an appellate court
is obligated to reach a conclusion independent of the determination
reached by the court below.
3. Modification of Decree: Child Custody: Visitation: Child Support:
Appeal and Error. Modification of a judgment or decree relating to
child custody, visitation, or support is a matter entrusted to the discre-
tion of the trial court, whose order is reviewed de novo on the record,
and will be affirmed absent an abuse of discretion.
4. Parent and Child: Words and Phrases. In loco parentis is a common-
law doctrine that gives standing to a nonparent to exercise the rights of
a natural or adoptive parent when the evidence shows the nonparent’s
exercise of such rights is in the child’s best interests.
5. Parent and Child. In order to stand in loco parentis, one must assume
all obligations incident to the parental relationship.
6. ____. In loco parentis status is not equivalent to status as a parent, and
it does not entitle a person to all the same rights that a legal parent
would enjoy.
7. ____. In loco parentis status does not, by itself, eclipse the supe-
rior nature of the parental preference accorded to biological or adop-
tive parentage.
8. Modification of Decree: Parent and Child: Child Custody: Visitation:
Child Support. Judgments establishing in loco parentis rights regarding
the custody, visitation, and support of a minor child will ordinarily not
be modified absent a material change in circumstances affecting the
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WINDHAM v. KROLL
Cite as 307 Neb. 947best interests of the child. However, if raised by the parties, whether the
in loco parentis relationship has changed is relevant to determining both
whether there has been a material change in circumstances and whether
modification is in the child’s best interests. Moreover, when modifying
custody rights as between a natural or adoptive parent and one who
stands in loco parentis, the parental preference doctrine applies.
9. 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.
10. Modification of Decree: Child Support: Property Settlement
Agreements. The fraud or gross inequity standard is inapplicable to
actions involving modification of child support, even when such support
was part of a voluntary property settlement agreement approved by the
court and incorporated into the decree.
11. Modification of Decree: Child Support. Provisions regarding the sup-
port of minor children are properly characterized as child support for
purposes of the legal standard to be applied in a modification action.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
Michael S. Kennedy, of Kennedy Law Firm, P.C., L.L.O.,
for appellant.
Jamie C. Cooper, of Johnson & Pekny, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
The primary question in this appeal is which legal standard
to apply when modifying a judgment establishing custody, visi-
tation, and support of minor children based on the common-law
doctrine of in loco parentis. The district court modified several
provisions pertaining to the support of the minor children upon
finding a material change in circumstances. We conclude the
correct modification standard was applied, and we affirm the
modification order.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
WINDHAM v. KROLL
Cite as 307 Neb. 947I. BACKGROUND
Alyssa Lee Windham and Rebecca Diane Kroll were in
a relationship for approximately 17 years, but never mar-
ried. During their relationship, Kroll gave birth to two chil-
dren, and Windham and Kroll shared parenting responsibilities.
Windham is not biologically related to the children, nor did she
adopt them.
The couple separated in 2011. Windham moved out of the
shared residence, but the parties continued to share parent-
ing duties.
1. 2012 Judgment
In January 2012, Windham filed a complaint against Kroll in
the district court for Douglas County. The operative amended
complaint alleged Windham stood in loco parentis to the minor
children and asked the court to establish custody, set a parent-
ing time schedule, allocate child-related expenses, and order
monthly child support based on the Nebraska Child Support
Guidelines. Kroll’s answer denied that Windham stood in loco
parentis to the children and asked the court to award her sole
legal and physical custody as their biological mother.
Eventually, Windham and Kroll reached an agreement as to
Windham’s in loco parentis status, child custody and visitation,
and the shared payment of certain expenses related to the chil-
dren. Both parties were represented by counsel, and the minor
children were represented by a guardian ad litem. As relevant
to the issues on appeal, the parties agreed as follows:
•  Windham stood in loco parentis to the minor children.
•  The parties would share joint legal and physical custody of
the children, and Windham would have regular parenting time
pursuant to a stipulated parenting plan.
•  Each party would pay 50 percent of any school or employment­
related childcare expenses and 50 percent of any nonreim-
bursed medical, dental, and vision expenses.
•  The minor children would attend private primary and sec-
ondary school, and each party would pay 50 percent of “any
tuition, school supplies, school dues, after-school programs,
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WINDHAM v. KROLL
Cite as 307 Neb. 947sports and other extracurricular activities incurred for the
benefit of the minor children.”
•  Each party would continue making monthly contributions of
$166 to the minor children’s college savings plans.
The district court approved the parties’ settlement agreement
and stipulated parenting plan, and it incorporated the same into
the judgment entered on October 10, 2012. No party appealed
from the 2012 judgment.
2. 2015 Stipulated Modification
In October 2015, the parties filed a complaint character-
ized as a joint stipulation for modification. They stipulated
there had been a material change in circumstances that war-
ranted adding a provision to the parenting plan directing that
neither party would use or be under the influence of alco-
hol or controlled substances during their parenting time. The
district court approved this stipulated modification, and no
party appealed.
3. 2017 Complaint to Modify
In October 2017, Kroll filed a complaint to modify, seek-
ing sole legal and physical custody of both minor children.
She alleged there had been a material change in circumstances
in that Windham had been charged with abusing the children
and had used alcohol in their presence and while transporting
them. Kroll also sought an award of monthly child support.
Windham’s answer denied the relevant allegations.
(a) Temporary Orders
In February 2018, while Kroll’s complaint for modifica-
tion was pending, the court entered a “Stipulated Temporary
Order” reflecting the parties’ agreement to temporarily modify
custody and parenting time and to order temporary child sup-
port. Kroll was given sole physical and legal custody of the
children, and Windham was awarded specific parenting time.
Windham was ordered to pay temporary child support of
$1,300 per month, and Kroll was ordered to pay the first $480
in nonreimbursed medical expenses, with the parties splitting
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WINDHAM v. KROLL
Cite as 307 Neb. 947such expenses 50-50 thereafter. Responsibility for “school or
employment-related expenses and tuition” was reallocated so
that Kroll paid 60 percent and Windham paid 40 percent.
In May 2019, Windham moved to reduce her temporary child
support payment, alleging she had lost her previous job and
was earning less at her new job. The parties stipulated to a tem-
porary order entered in June 2019 which reduced Windham’s
monthly child support obligation to $1,149 and reallocated
responsibility for nonreimbursed medical expenses exceeding
$480 so that Windham paid 45 percent and Kroll paid 55 per-
cent. This temporary order specifically directed that Windham
was “no longer responsible for her portion of the minor chil-
dren’s reasonable and necessary direct expenses, including,
but not limited to, clothing and extracurricular expenses.” It
also ordered that “until further Order of the Court, [Windham]
shall remain responsible for her portion of the children’s school
tuition, supplies, and dues.”
(b) Counterclaim
In August 2019, Windham was allowed to file a counter-
claim for modification. The counterclaim alleged there had
been a material change in circumstances since the entry of
the 2012 judgment, in that Windham’s income had decreased
and was likely to remain decreased. She asked the court to
calculate any child support using the Nebraska Child Support
Guidelines. She also asked the court to reduce the amount
of her “contribution toward out-of-pocket expenses, includ-
ing childcare, medical expenses, private school tuition, extra-
curricular expenses, and contribution to the children’s college
savings plan.”
4. Trial on Complaint to
Modify and Counterclaim
In November 2019, trial was held on Kroll’s complaint to
modify and Windham’s counterclaim. The parties advised the
court they had successfully mediated their dispute as to cus-
tody and parenting time, and they agreed Kroll should have
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WINDHAM v. KROLL
Cite as 307 Neb. 947sole legal and physical custody of the minor children. They
also agreed Windham should have regular parenting time pur-
suant to a phased schedule, and they agreed to certain safety
and communication provisions. The parties asked the court to
modify custody and visitation in accordance with their agree-
ment and to approve and adopt their modified parenting plan.
The parties were unable to agree on how to modify support-
related provisions in light of the stipulated custody change. So
the matter proceeded to trial on Kroll’s request for monthly
child support and Windham’s request to reduce her responsibil-
ity for certain child-related expenses.
(a) Kroll’s Testimony
The children were in eighth and sixth grade at the time of
trial. Kroll testified that both children had attended a private
religious grade school since kindergarten and that their tuition
was approximately $3,000 per year for each child. Kroll esti-
mated tuition for a private religious high school would be
approximately $11,000 per year each. But she testified that
actual tuition would depend on the amount of financial aid
awarded by the school, which considered the children’s aca-
demic achievements, the parents’ financial resources, and the
children’s willingness to engage in workstudy programs.
Kroll acknowledged she was seeking monthly child support
from Windham based on their agreement that Kroll should
have sole custody, and Kroll expected that as the primary
physical custodian, she would be 100 percent responsible for
the children’s clothing and daily food needs. But Kroll asked
the court not to modify Windham’s responsibility for other
child-related expenses under the 2012 judgment, reasoning that
provisions regarding school tuition and expenses, college sav-
ings, and extracurricular activities were “outside the province
of child support.”
(b) Windham’s Testimony
Windham asked the court to approve the mediated agree-
ment giving Kroll sole legal and physical custody. She also
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307 Nebraska Reports
WINDHAM v. KROLL
Cite as 307 Neb. 947asked the court to order her to pay monthly child support based
on the Nebraska Child Support Guidelines. But Windham asked
the court to modify the expense-sharing provisions of the 2012
judgment so that she was no longer responsible for 50 percent
of the children’s school tuition and no longer required to pay
$166 per month into the children’s college savings accounts.
Windham acknowledged that she had stipulated to these
provisions in the 2012 judgment, but claimed they should be
modified because of the change in custody and because her
financial circumstances had changed. With respect to the latter,
she testified she had been terminated from her previous job and
earned less money at her new job. Windham submitted a pro-
posed child support calculation to the court that would require
her to pay $1,050 per month for two children. Windham testi-
fied that if ordered to pay this amount of monthly child sup-
port, she could not also afford to pay half the expenses related
to school tuition or contribute to the children’s college savings
plans at the same level she had in the past.
5. 2020 Order of Modification
On January 6, 2020, the court entered an order of modifica-
tion. The order approved and incorporated the parties’ medi-
ated parenting plan, finding it was in the children’s best inter-
ests. Pursuant to that plan, Kroll was awarded sole legal and
physical custody of the minor children, subject to Windham’s
regular parenting time.
The court found the agreed-upon changes to custody and
parenting time amounted to a material change in circumstances
supporting modification of several support-related provisions,
and it modified the 2012 judgment to (1) order Windham to
pay monthly child support of $1,050 for two children and
$763.80 per month when only one child remains entitled to
support, (2) eliminate the provision requiring monthly con-
tributions to the children’s college savings plans, and (3)
­reallocate responsibility for the children’s “tuition and educa-
tional expenses” so that Windham would pay 331⁄3 percent of
such expenses and Kroll would pay 662⁄3 percent. The order of
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WINDHAM v. KROLL
Cite as 307 Neb. 947modification also stated that any term of the 2012 judgment
“not modified herein or by subsequent order” would remain in
full force and effect.
Kroll filed this timely appeal, which we moved to our
docket on our own motion.
II. ASSIGNMENTS OF ERROR
Kroll assigns that the district court erred by modifying the
terms of the October 2012 judgment relating to (1) allocation
of school tuition and expenses and (2) contributions to the chil-
dren’s college savings funds.
Kroll’s primary argument on appeal is that the district
court applied the wrong legal standard when it modified these
provisions based on a material change in circumstances. She
contends that because the provisions were voluntarily agreed
to by the parties and incorporated into a consent judgment
from which neither party appealed, the provisions could not be
modified absent a showing of fraud or gross inequity. 1
III. STANDARD OF REVIEW
[1,2] The proper legal standard to apply when modifying
provisions pertaining to custody, visitation, or support of a
minor child is a question of law. 2 On questions of law, an
appellate court is obligated to reach a conclusion independent
of the determination reached by the court below. 3
[3] Modification of a judgment or decree relating to child
custody, visitation, or support is a matter entrusted to the dis-
cretion of the trial court, whose order is reviewed de novo on
the record, and will be affirmed absent an abuse of discretion. 4
1
See, generally, Carlson v. Carlson, 299 Neb. 526, 909 N.W.2d 351 (2018);
Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006).
2
See Reinsch v. Reinsch, 259 Neb. 564, 611 N.W.2d 86 (2000).
3
Benjamin M. v. Jeri S., ante p. 733, 950 N.W.2d 381 (2020).
4
See, Tilson v. Tilson, ante p. 275, 948 N.W.2d 768 (2020); Whilde v.
Whilde, 298 Neb. 473, 904 N.W.2d 695 (2017); State on behalf of Jakai C.
v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (2015); Caniglia v. Caniglia,
285 Neb. 930, 830 N.W.2d 207 (2013).
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WINDHAM v. KROLL
Cite as 307 Neb. 947IV. ANALYSIS
1. Modification of In Loco Parentis
Custody, Visitation, and Support
Most of our appellate decisions involving the modification
of child custody, visitation, and support arise in the context of
dissolution and paternity actions, where it is well-established
that provisions in a decree or order relating to custody, visita-
tion, and support may be modified upon a showing of a mate-
rial change in circumstances affecting the best interests of the
child. 5 The instant modification did not arise in a dissolution
or a paternity action; instead, it arose in an action to establish
custody, support, and visitation rights based on Windham’s
common-law status as one who stood in loco parentis to the
minor children.
[4-7] In loco parentis is a common-law doctrine that gives
standing to a nonparent to exercise the rights of a natural or
adoptive parent when the evidence shows the nonparent’s
exercise of such rights is in the child’s best interests. 6 In order
to stand in loco parentis, one must assume all obligations inci-
dent to the parental relationship. 7 In loco parentis status is not
equivalent to status as a parent, however, and it does not entitle
a person to all the same rights that a legal parent would enjoy. 8
Moreover, in loco parentis status does not, by itself, eclipse the
superior nature of the parental preference accorded to biologi-
cal or adoptive parentage. 9
The parties’ briefing generally assumes that once a ­judgment
is entered establishing the custody, visitation, and support
5
See, e.g., Tilson, supra note 4; State on behalf of Fernando L. v. Rogelio L.,
299 Neb. 329, 907 N.W.2d 920 (2018).
6
See, State on behalf of Tina K. v. Adam B., ante p. 1, 948 N.W.2d 182(2020); Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (2016); Latham
v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (2011), disapproved on
other grounds, Windham, supra note 6.
7
State on behalf of Tina K., supra note 6.
8
Id.9
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WINDHAM v. KROLL
Cite as 307 Neb. 947rights and responsibilities of one who stands in loco parentis,
any subsequent modification of that judgment will be governed
by the same legal standards and principles that govern modifi-
cation of similar provisions in a dissolution or paternity decree.
With two important caveats, we agree.
In dissolution, separation, and paternity actions, issues
regarding the custody, visitation, and support of minor children
are governed largely by statute. 10 There currently is no statu-
tory scheme governing the rights and responsibilities of one
who stands in loco parentis. But this court has consistently
held that even absent statutory authorization, a district court
has equitable jurisdiction to determine the rights and responsi-
bilities of one who stands in loco parentis to a child, including
custody, visitation, and support. 11 And once such rights and
responsibilities have been established by a district court, we
have recognized they can be modified. 12 But our cases make
clear that when modifying the rights and responsibilities of one
who stands in loco parentis, courts may also need to consider
whether the in loco parentis relationship has changed 13 and
whether the parental preference doctrine applies. 14
10
See, Neb. Rev. Stat. §§ 42-341 to 42-381 (Reissue 2016 & Cum. Supp.
2018) (dissolution); Neb. Rev. Stat. §§ 43-1401 to 43-1418 (Reissue 2016,
Cum. Supp. 2018 & Supp. 2019) (paternity).
11
See, Windham, supra note 6 (one who stands in loco parentis has right
to seek custody and visitation, but parental preference doctrine still
applies); Latham, supra note 6 (common-law doctrine of in loco parentis
confers standing to seek custody and visitation when in best interests of
child). See, also, Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d
587 (2014) (holding Nebraska common law recognizes action in equity
for custody). Accord Weinand v. Weinand, 260 Neb. 146, 616 N.W.2d 1(2000), disapproved on other grounds, Windham, supra note 6 (no basis to
order ex-stepparent to pay child support because he did not currently stand
in loco parentis to minor child).
12
See, State on behalf of Tina K., supra note 6; Whilde, supra note 4.
13
Whilde, supra note 4.
14
State on behalf of Tina K., supra note 6; Windham, supra note 6.
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WINDHAM v. KROLL
Cite as 307 Neb. 947In Whilde v. Whilde, 15 we reviewed an order modifying the
custody and visitation rights of one who stood in loco parentis
to a minor child born during an unmarried same-sex relation-
ship. In doing so, we recited the well-established modification
standard from our dissolution and paternity cases, noting:
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 previ-
ous custody order and affecting the best interests of the
child. . . . Next, the party seeking modification must
prove that changing the child’s custody is in the child’s
best interests. 16
The biological mother in Whilde claimed her former part-
ner’s in loco parentis status had ended. We recognized this
argument when considering whether there had been a material
change in circumstances, reasoning:
[A]n individual standing in loco parentis, which is tempo-
rary in nature, is not the functional equivalent of a law-
ful parent for all purposes or in all contexts. We believe
that modification of custody is a context in which one
who obtained rights as a result of in loco parentis status
will be considered differently from one who is a lawful
parent; therefore, whether one has maintained the sort
of relationship with the child that gave rise to in loco
parentis status is relevant to modification of custody and
visitation rights, both in determining whether there has
been a material change in circumstances and whether a
modification of custodial and visitation rights is in the
child’s best interests. 17
15
Whilde, supra note 4.
16
Id. at 487, 904 N.W.2d at 705 (citations omitted).
17
Id. at 488, 904 N.W.2d at 705.
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WINDHAM v. KROLL
Cite as 307 Neb. 947In State on behalf of Tina K. v. Adam B., 18 the biological
mother of a minor child appealed from a modification order
giving sole custody to a woman who stood in loco parentis to
the child. The mother claimed her status as the natural parent
entitled her to custody. We emphasized that because natural
and adoptive parents have a fundamental right to make deci-
sions concerning the care, custody, and control of their minor
children which is constitutionally protected, custody disputes
between a natural or adoptive parent and a nonparent are
governed by the parental preference doctrine. 19 That doctrine
establishes a rebuttable presumption that the best interests of
a minor child are served by placing custody of the child with
his or her parent and, absent proof that a parent is unfit or
has forfeited the right to custody, a parent may not ordinarily
be deprived of the custody of a minor child. 20 In prior cases,
we suggested it may be possible to overcome the parental
preference doctrine by showing “the best interests of the
child lie elsewhere,” 21 but we described such circumstances
as “exceptional.” 22 In State on behalf of Tina K., we explained
that in order for such exceptional circumstances to negate the
parental preference doctrine, there must be proof of serious
physical or psychological harm to the child or a substantial
likelihood of such harm. 23 We therefore reversed the order
modifying custody and remanded the matter for reconsidera-
tion of the parental preference doctrine.
So while we generally agree with the parties that the
legal standards governing modification of in loco parentis
18
State on behalf of Tina K., supra note 6.
19
Id. See, also, Windham, supra note 6 (holding parental preference doctrine
applies in custody dispute between natural or adoptive parent and one who
stands in loco parentis).
20
State on behalf of Tina K., supra note 6.
21
Windham, supra note 6, 295 Neb. at 288, 887 N.W.2d at 717.
22
Id. at 290, 887 N.W.2d at 718.
23
State on behalf of Tina K., supra note 6.
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WINDHAM v. KROLL
Cite as 307 Neb. 947custody, visitation, and support are similar to the standards
governing custody and support modifications in a dissolution
or paternity action, the standards are not identical. Whilde
demonstrates that consideration may also need to be given to
whether the in loco parentis status has changed, and State on
behalf of Tina K. teaches that when modifying custody rights
as between a natural or adoptive parent and one who stands in
loco parentis, the parental preference doctrine applies.
[8] We therefore hold that judgments establishing in loco
parentis rights regarding the custody, visitation, and support of
a minor child will ordinarily not be modified absent a mate-
rial change in circumstances affecting the best interests of the
child. 24 However, if raised by the parties, whether the in loco
parentis relationship has changed is relevant to determining
both whether there has been a material change in circumstances
and whether modification is in the child’s best interests. 25
Moreover, when modifying custody rights as between a natural
or adoptive parent and one who stands in loco parentis, the
parental preference doctrine applies. 26
On this record, the district court applied the correct legal
standard to the requested modifications to custody, visitation,
and support of one who stands in loco parentis. The parties did
not dispute Windham’s continued in loco parentis status, and
Kroll did not assert the parental preference doctrine in seeking
to modify the joint custody arrangement. To the contrary, the
parties’ mediated agreement to modify custody continued to
describe Windham as a parent to the minor children, and the
parties agreed that Windham should continue to have regular
weekly parenting time with the children. Finding it was in
the children’s best interests, the court approved the medi-
ated modification agreement giving Kroll, the natural parent,
sole custody and adjusting Windham’s regular parenting time.
24
See, id.; Whilde, supra note 4.
25
Whilde, supra note 4.
26
See, State on behalf of Tina K., supra note 6; Windham, supra note 6.
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WINDHAM v. KROLL
Cite as 307 Neb. 947On appeal, no party challenges the modifications to custody
or parenting time and no party challenges Windham’s in loco
parentis status.
Instead, as noted earlier, Kroll assigns error only to the dis-
trict court’s modification of the provisions relating to the allo-
cation of school tuition expenses and mandatory contributions
to the children’s college savings funds. The court modified
these support-related provisions after finding that a material
change in circumstances resulted from the parties’ agreement
to change from a joint custody arrangement to a sole custody
arrangement. After reviewing this de novo on the record, we
find no abuse of discretion.
[9] 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. 27 Here, the district court reasoned that changing from
a joint custody arrangement, where Kroll and Windham shared
child-related expenses equally, to an arrangement where Kroll
had sole legal and physical custody, was a material change in
circumstances warranting modification of the support-related
provisions concerning the minor children. There was also evi-
dence that Windham’s financial circumstances had changed
since the 2012 judgment.
On this record, the district court did not abuse its discre-
tion in finding that a material change in circumstances justi-
fied modifying support-related provisions concerning the minor
children. To the extent Kroll’s appellate briefing can be under-
stood to argue there was insufficient evidence of a material
change in circumstances, the argument is without merit.
But in fairness to Kroll, her appellate briefing does not focus
on the material change in circumstances standard, because her
primary contention on appeal is that a higher modification
standard should have been applied. We consider that argument
next, and reject it.
27
Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015).
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WINDHAM v. KROLL
Cite as 307 Neb. 9472. No Merit to Kroll’s Claim That
Provisions Could Not Be Modified
Absent Fraud or Gross Inequity
Kroll argues that because the provisions regarding alloca-
tion of tuition expenses and college savings contributions were
voluntarily agreed to by the parties and incorporated into a
consent judgment from which neither party appealed, those
provisions can be modified only upon a showing of fraud or
gross inequity. 28 We addressed and rejected a similar argument
in Reinsch v. Reinsch. 29
In that case, a 1986 divorce decree incorporated a property
settlement agreement in which the father agreed to pay $200
in monthly child support until the child reached the age of 18.
The mother later sought to modify the support and extend it
to the age of 19. The district court granted the modification,
finding the enactment of certain child support statutes was a
material change in circumstances justifying modification of
the duration of child support. The father appealed, arguing the
trial court had applied the wrong standard to modify support.
He claimed that since the parties had agreed to the duration of
child support in their property settlement agreement, the dura-
tion could be modified only upon a showing of fraud or gross
inequity. We soundly rejected this argument.
We acknowledged, but distinguished, a line of cases holding
as follows:
[W]here a party to a divorce action voluntarily executes
a property settlement agreement which is approved by
the dissolution court and incorporated into a divorce
decree from which no appeal is taken, provisions deal-
ing with division of real and personal property, divi-
sion of pension benefits, and division of stock will not
28
See, generally, Carlson, supra note 1; Strunk, supra note 1.
29
Reinsch, supra note 2.
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WINDHAM v. KROLL
Cite as 307 Neb. 947thereafter be vacated or modified in the absence of fraud
or gross inequity. 30
We noted this higher modification standard was premised on
§ 42-366. That statute is intended to promote amicable settle-
ment of disputes attendant to divorce and separation, and it per-
mits parties to enter into a “written property settlement agree-
ment containing provisions for the maintenance of either of
them, the disposition of any property owned by either of them,
and the support and custody of minor children.” 31 Reinsch
recognized that our cases applying § 42-366 had generally
held that “if the terms of a property settlement agreement with
respect to real and personal property and maintenance are not
found unconscionable, the agreement is binding upon the dis-
solution court and the initial decree must carry such agreement
into effect.” 32
But Reinsch expressly found this heightened modification
standard was inapplicable to provisions in a property settle-
ment agreement regarding the custody and support of minor
children. We reasoned that under § 42-366(2), agreements
regarding the custody and support of minor children are not
binding on the dissolution court, 33 and we noted that despite
agreements to the contrary, “child support orders are always
subject to review and modification.” 34
30
Id. at 568-69, 611 N.W.2d at 90, citing Hoshor v. Hoshor, 254 Neb. 743,
580 N.W.2d 516 (1998); Pascale v. Pascale, 229 Neb. 49, 424 N.W.2d
890 (1988); Colson v. Colson, 215 Neb. 452, 339 N.W.2d 280 (1983); and
Klabunde v. Klabunde, 194 Neb. 681, 234 N.W.2d 837 (1975).
31
See § 42-366.
32
Reinsch, supra note 2, 259 Neb. at 568, 611 N.W.2d at 90, citing
Prochazka v. Prochazka, 198 Neb. 525, 253 N.W.2d 407 (1977).
33
§ 42-366(2) (expressly excepting “terms providing for the support and
custody of minor children” from rule that provisions of property settlement
agreement shall be binding on court absent unconscionability).
34
Reinsch, supra note 2, 259 Neb. at 568, 611 N.W.2d at 90. See, also,
§ 42-366(7) (“[e]xcept for terms concerning the custody or support of
minor children, the decree may expressly preclude or limit modification of
terms set forth in the decree”).
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Cite as 307 Neb. 947[10] Reinsch makes clear that the higher fraud or gross
i­ nequity standard is inapplicable to actions involving modifi-
cation of child support, even when such support was part of a
voluntary property settlement agreement approved by the court
and incorporated into the decree. 35
Kroll seeks to avoid the holding in Reinsch by arguing that
the provisions regarding allocation of school tuition expenses
and college savings contributions are “outside of traditional
[c]hild support related expenses.” 36 She argues, without cita-
tion, that provisions “relating to tuition and college expenses” 37
are not properly characterized as child support. Our cases sup-
port the opposite conclusion.
In Caniglia v. Caniglia, 38 a dissolution decree required
the father to be responsible for paying monthly child sup-
port and half of the “extracurricular activities, education . . .
and other extraordinary expenses” of the minor child. When
the father lost his job, he moved to modify both his monthly
child support obligation and his obligation to pay half of
the other child-related expenses. The mother contended only
the award of monthly child support was modifiable, and we
rejected her argument. In doing so, we noted that § 42-364.17
requires divorce and paternity decrees to incorporate provisions
addressing responsibility for certain child-related expenses,
including “‘medical, dental, and eye care, medical reimburse-
ments, day care, extracurricular activity, education, and other
extraordinary expenses of the child and calculation of child
support obligations.’” 39 We specifically held that provisions
in a dissolution decree related to child-related expenses listed
in § 42-364.17 are modifiable when there has been a material
change in circumstances, reasoning that such expenses “are
35
Reinsch, supra note 2.
36
Brief for appellant at 9.
37
Id. at 10.
38
Caniglia v. Caniglia, 285 Neb. 930, 932, 830 N.W.2d 207, 210 (2013).
39
Id. at 933, 830 N.W.2d at 211.
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Cite as 307 Neb. 947merely an incident of the parents’ responsibility to support
their child” 40 and are a “subset of child support.” 41 Caniglia
found “no persuasive reason” 42 for treating the modification
of child-related expenses any differently than other provisions
relating to children.
In Lenz v. Lenz, 43 the parties’ minor child had profound hear-
ing loss, and a provision in the dissolution decree required the
father to pay “‘all of the expenses for the minor child’s special
schooling.’” When the father failed to pay, the mother brought
an action to modify and enforce the decree. We characterized
the obligation to pay for special schooling as an expense “in
the nature of child support,” which could be modified prospec-
tively, but not retrospectively. 44
In Coffey v. Coffey, 45 the dissolution decree referenced two
bank accounts the parties had established for the minor chil-
dren. It awarded the father control of one account and the
mother control of the other. It directed the funds to be used pri-
marily for the children’s college education, but it allowed them
to be used for extraordinary medical expenses or parochial high
school tuition expenses if needed. The mother subsequently
brought a complaint to modify custody, and the court changed
the custody arrangement from joint custody to primary physi-
cal custody with the father. In doing so, it also modified child
support and gave the father control of both accounts.
On appeal, the mother claimed the court erred in modifying
control of these accounts because the issue of their ownership
was not placed at issue by the parties’ pleadings. The Nebraska
Court of Appeals disagreed, reasoning:
40
Id. at 931, 830 N.W.2d at 210.
41
Id. at 935, 830 N.W.2d at 212.
42
Id. at 936, 830 N.W.2d at 212.
43
Lenz v. Lenz, 222 Neb. 85, 85, 382 N.W.2d 323, 324-25 (1986).
44
Id. at 88, 382 N.W.2d at 326.
45
Coffey v. Coffey, 11 Neb. App. 788, 661 N.W.2d 327 (2003).
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Cite as 307 Neb. 947The control of these accounts, as provided for in the
decree, was closely related to the joint custody arrange-
ment and child support provisions therein, as opposed to
being part of the distribution of real and personal prop-
erty. By the parties’ petitions to modify, the parties placed
the custody and support of their children as issues before
the trial court. Given that the trial court awarded custody
of the children to [the father], we find no error in the por-
tion of the order of modification granting [him] control of
the children’s accounts. 46
Coffey thus suggests that provisions in a decree regarding
financial accounts intended to provide for the educational
expense of minor children are properly characterized as sup-
port and are modifiable based upon a material change in
circumstances.
[11] The reasoning in Caniglia, Lenz, and Coffey demon-
strates that the provisions at issue here, which allocated school
tuition expenses for the minor children and required contribu-
tions to the children’s college savings accounts, pertain to the
support of the minor children. 47 And when provisions pertain to
the support of minor children, they are properly characterized
as child support for purposes of the legal standard to be applied
in a modification action. The fraud or gross inequity standard
urged by Kroll was therefore inapplicable, and the district court
correctly determined the support provisions were modifiable
upon a showing of a material change in circumstances affecting
the best interests of the children. 48
3. Carlson v. Carlson
Inapplicable
Lastly, Kroll argues that our recent opinion in Carlson v.
Carlson 49 required application of the fraud or gross inequity
46
Id. at 815, 661 N.W.2d at 350-51.
47
See, Caniglia, supra note 38; Lenz, supra note 43; Coffey, supra note 45.
48
See, State on behalf of Tina K., supra note 6; Whilde, supra note 4.
49
Carlson, supra note 1.
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Cite as 307 Neb. 947standard to the modification in this case. But as we explain, the
rule announced in Carlson has no application to the modifica-
tion of provisions regarding the support of minor children.
In Carlson, the parties entered into a property settlement
agreement that divided marital property, established custody
and support of the minor children, and required the father
to pay monthly child support beyond the age of majority so
long as the child was attending college. The property settle-
ment agreement was approved by the court and incorporated
into the decree. When the father later sought to modify the
post-­majority child support provision, it was a question of first
impression whether such a provision could be modified and, if
so, what standard to apply.
The father in Carlson urged that the provision to pay post-
majority support should be characterized as “child support” 50
and therefore was subject to modification upon showing a
material change in circumstances. 51 We disagreed, reasoning
that such a provision did not pertain at all to the support of
minor children, but, rather, pertained to the support of adult
children. We noted that absent agreement of the parties, a
dissolution court in Nebraska cannot order payment of child
support beyond the age of majority, but can enforce such
provisions if contained in an approved property settlement
agreement incorporated into a decree. 52 Agreeing with the
general consensus from other jurisdictions, Carlson ultimately
held that a provision obligating a parent to pay post-majority
child support could be modified, but not upon a showing of a
material change in circumstances. Instead, Carlson held that
when modifications to property settlement agreements do not
pertain to the custody or support of minor children, they are
governed either by the modification standard set out in the
50
Id. at 542, 909 N.W.2d at 362.
51
See, e.g., Tilson, supra note 4.
52
Carlson, supra note 1. See, Foster v. Foster, 266 Neb. 32, 662 N.W.2d 191(2003); Zetterman v. Zetterman, 245 Neb. 255, 512 N.W.2d 622 (1994).
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Cite as 307 Neb. 947property settlement agreement or, if the agreement contains no
such standard, by the general standard under Nebraska law for
modifying provisions in a property settlement agreement. 53
We adhere to the rule announced in Carlson as it regards
post-majority support, but find it has no application here.
Unlike the post-majority support provisions in Carlson, the
provisions allocating responsibility for primary and second-
ary school tuition and requiring contributions to college sav-
ings funds during the children’s minority related exclusively
to the support of minor children. As such, the district court
applied the correct legal standard when it concluded the sup-
port provisions were modifiable upon finding a material change
in circumstances. 54
V. CONCLUSION
For the foregoing reasons, the district court’s modification
order is affirmed.
Affirmed.
53
Carlson, supra note 1.
54
See, State on behalf of Tina K., supra note 6; Whilde, supra note 4.