McDonald v. McDonald

Decisions of the Nebraska Court of Appeals
McDONALD v. McDONALD 535
Cite as 21 Neb. Ct. App. 535
the conditional liberty of Workman’s participation in the drug
court program, based upon the record made at the previous
hearing. The sentence imposed is vacated, and the cause is
remanded to the district court for resentencing following the
entry of the new order.
Judgment reversed, sentence vacated, and
cause remanded for further proceedings.
Coleen McDonald, appellee, and State
of Nebraska, intervenor-appellee, v.
Del McDonald, appellant.
___ N.W.2d ___
Filed December 10, 2013. No. A-12-1058.
1. Modification of Decree: Visitation: Child Support: Appeal and Error. Issues
involving the modification of a divorce decree, parenting time, and the amount of
child support are initially entrusted to the discretion of the district court, whose
determinations in these matters are reviewed de novo on the record for an abuse
of discretion.
2. Child Support. The trial court’s discretion to award child support extends to its
determination that the child support award should be retroactive.
3. Attorney Fees: Appeal and Error. An appellate court reviews a trial court’s
award of attorney fees for an abuse of discretion.
4. Courts: Words and Phrases. An abuse of discretion occurs when a trial court
acts or refrains from acting, and the selected option results in a decision which is
untenable and unfairly deprives the litigant of a substantial right or just result.
5. Modification of Decree: Child Custody. 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.
6. Modification of Decree: Words and Phrases. A material change in circum-
stances means the occurrence of something which, had it been known to the dis-
solution court at the time of the initial decree, would have persuaded the court to
decree differently.
7. Modification of Decree. Changes in circumstances which were within the con-
templation of the parties at the time of the decree are not material changes in
circumstances for purposes of modifying a divorce decree.
8. Modification of Decree: Child Custody: Proof. Prior to the modification of a
child custody order, two steps of proof must be taken by the moving party. First,
the moving party must show a material change in circumstances that affects the
best interests of the child. Second, the moving party must prove that changing the
child’s custody is in the child’s best interests.
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536 21 NEBRASKA APPELLATE REPORTS
9. Appeal and Error. An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the trial court.
10. Modification of Decree: Child Support: Proof. A parent seeking to modify a
child support award must show a material change in circumstances, including
changes in the financial position of the parent obligated to pay support.
11. Child Support: Rules of the Supreme Court. Generally, child support payments
should be set according to the guidelines established pursuant to Neb. Rev. Stat.
§ 42-364.16 (Reissue 2008).
12. Child Support: Rules of the Supreme Court: Presumptions. Although the
child support guidelines are not to be applied with blind rigidity, child support
shall be established in accordance with the guidelines, unless the court finds that
one or both parties have produced sufficient evidence to rebut the presumption
that the application of the guidelines will result in a fair and equitable child sup-
port order.
13. Modification of Decree: Child Custody. If trial evidence establishes a joint
physical custody arrangement, courts will so construe it, regardless of how prior
decrees or court orders have characterized the arrangement.
14. Child Custody: Child Support: Rules of the Supreme Court. Where parties
exercise joint physical custody, the trial court must use the joint custody work-
sheet of the child support guidelines to calculate support.
15. Child Custody: Words and Phrases. Joint physical custody is generally
defined as joint responsibility for minor day-to-day decisions and the exertion
of continuous physical custody by both parents over a child for significant
time periods.
16. Appeal and Error. Generally, a party cannot complain of error which the party
has invited the court to commit.
17. Divorce: Minors: Stipulations. Parties in a proceeding to dissolve a mar-
riage cannot control the disposition of matters pertaining to minor children by
agreement.
18. Divorce: Modification of Decree: Child Support. The paramount concern and
question in determining child support, whether in the initial marital dissolution
action or in the proceedings for modification of decree, is the best interests of
the child.
19. Child Support. In determining whether to order retroactive support, a court must
consider the parties’ status, character, situation, and attendant circumstances. As
part of that consideration, the court must consider whether the obligated party has
the ability to pay the lump-sum amount of a retroactive award.
20. Modification of Decree: Child Support: Time. Absent equities to the contrary,
modification of a child support order should be applied retroactively to the first
day of the month following the filing date of the application for modification.
21. Child Support: Child Custody. In the determination of child support, the
children and the custodial parent should not be penalized by delay in the legal
process, nor should the noncustodial parent gratuitously benefit from such delay.
22. Taxation: Child Support: Alimony: Child Custody. Because a tax dependency
exemption is an economic benefit nearly identical in nature to an award of child
support or alimony, a trial court may exercise its equitable powers to allocate
dependency exemptions between the custodial and noncustodial parent.
Decisions of the Nebraska Court of Appeals
McDONALD v. McDONALD 537
Cite as 21 Neb. Ct. App. 535
23. Taxation: Child Custody: Presumptions. Although a custodial parent is pre-
sumptively entitled to a tax dependency exemption, a trial court may use its equi-
table powers to allocate the exemption to a noncustodial parent if the situation of
the parties so requires.
24. Attorney Fees. Attorney fees are recoverable in Nebraska only when provided
for by law or allowed by custom.
25. Attorney Fees: Child Support. Attorney fees and costs are allowed in child sup-
port cases brought by a child’s mother, father, guardian or next friend, the county
attorney, or other authorized attorney.
26. Attorney Fees. The award of attorney fees depends on multiple factors that
include the nature of the case, the services performed and results obtained, the
earning capacity of the parties, the length of time required for preparation and
presentation of the case, customary charges of the bar, and general equities of
the case.
27. Attorney Fees: Courts. Trial courts and appellate courts are equally regarded as
experts at determining the value of legal services.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
Avis R. Andrews for appellant.
Ronald E. Frank and Mary M. Schott, of Sodoro, Daly &
Sodoro, P.C., for appellee.
Julie Fowler, of Child Support Enforcement Office, for
intervenor-appellee.
Inbody, Chief Judge, and Irwin and Riedmann, Judges.
Riedmann, Judge.
I. INTRODUCTION
Del McDonald appeals from the decision of the district
court for Douglas County modifying his child support obliga-
tion, awarding attorney fees to his former wife, and denying
his request for custody modification. We determine that the
district court did not abuse its discretion in refusing to modify
child custody, in modifying Del’s child support obligation,
or in awarding attorney fees. Accordingly, we affirm the trial
court’s decision.
II. BACKGROUND
Del and Coleen Spencer, formerly known as Coleen
McDonald, married in March 1999 and divorced in July 2009.
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538 21 NEBRASKA APPELLATE REPORTS
Two children were born during the marriage—a son born in
1999 and a daughter born in 2002.
In the original divorce decree, the court awarded Coleen
sole legal and physical custody of the parties’ two children,
subject to Del’s parenting time. Del’s parenting time con-
sisted of alternating weekends, Wednesday nights, rotating
holidays, and extended time during the summer. Del’s parent-
ing rights also included a right of first refusal when Coleen
worked overnight.
To facilitate their shared parenting responsibilities, the par-
enting plan established rules for Del and Coleen to aid them
in communicating. The rules eliminated face-to-face interac-
tion during custody exchanges, established that the parties
would communicate professionally through e-mail or voice-
mail, and ordered the parties to sit apart from each other at
school activities.
In addition to sole custody, the decree also awarded Coleen
$69 per month in child support. The decree ordered Coleen to
maintain health and medical insurance for the children unless it
was available to Del at a lower rate. Del’s child support obliga-
tions were calculated based on his status as a full-time student
with minimal income.
About a year after the decree was entered, Del obtained
full-time employment as a respiratory therapist at a Bellevue
medical center and occasionally worked additional shifts at a
hospital in Blair. Because Del’s income increased, the State
of Nebraska intervened in February 2011 to ask the court
to recalculate Del’s child support obligation. Del filed an
answer and counterclaim alleging that there had been a mate-
rial change in circumstances which warranted an award of
full custody to him. He based his modification request upon
contact that the children had with Coleen’s then boyfriend,
who Del claimed had a history of domestic abuse and who
transported the children while he was consuming alcohol. He
further claimed that Coleen was frustrating his relationship
with the children by refusing telephone contact and denying
him the right of first refusal to care for the children when
Coleen was at work.
Decisions of the Nebraska Court of Appeals
McDONALD v. McDONALD 539
Cite as 21 Neb. Ct. App. 535
At trial, the parties addressed both child support and custody
issues. To help determine the proper amount of child support,
both parties submitted proposed calculations to the court. The
State calculated Del’s income as $24 per hour full time and
Coleen’s income as $23.67 per hour full time. Both parties
stipulated to the exhibits containing the income calculations.
Both parties showed they were providing the children with
health insurance. The evidence showed that Del’s health insur-
ance premium is slightly lower, but Coleen testified that her
insurance does not require her to make any copayments. The
parties submitted exhibits as evidence of their income, and
they stipulated to all of the exhibits. The stipulated exhibits
included the parties’ proposed child support calculations (all of
which used the same income for the parties), tax returns, and
pay stubs.
With respect to custody, at trial, Del requested the court
to award him joint custody of the children on an alternating
weekly basis, despite the request in his counterclaim that he be
awarded “full custody.” Under his proposed custody plan, the
children would stay in their current school and he would move
closer to their current residence. In support of his request, Del
stated that he is involved in the children’s lives: he attends
school activities and exercises his parenting time. Del argued
that a joint custody plan was warranted by material changes in
circumstances. Specifically, he argued that circumstances have
changed, because his work schedule has allowed him more
time to parent, Coleen has prevented him from exercising the
right of first refusal the way the parties envisioned at the time
of the original decree, Coleen’s new husband has driven the
children while having open containers of alcohol in his car,
and Coleen has informed the children that Del does not pay
child support.
Del and Coleen’s son testified that he did not want the cus-
tody schedule to change. Their daughter did not testify. Both
parties admitted that they did not have a cordial relationship.
The trial court addressed the issues of custody, child sup-
port, health insurance, tax dependency exemptions, and attor-
ney fees. The trial court determined that although no material
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540 21 NEBRASKA APPELLATE REPORTS
change supported a change in custody, Del’s new employment
status was a material change that supported increasing child
support. The trial court increased Del’s child support from $69
per month to $982 per month. It awarded the support retroac-
tively from March 2011, resulting in $14,608 in past support.
Although Del’s income increased in June 2010, the State did
not move to modify child support until February 2011; accord-
ingly, the trial court could not award retroactive support until
March 2011.
While increasing Del’s support, the court determined that
Coleen should continue to provide health insurance for the
children. Although Coleen’s premium was slightly more expen-
sive than Del’s, the court determined her plan was more eco-
nomical because it did not require any copayments. Finally, the
court determined that each parent could claim one child for tax
exemption purposes but required Del to fulfill his child support
obligation in order to claim the exemption.
The trial court also found that Del should have been pay-
ing an increased amount of child support since June 2010 and
that Coleen incurred legal costs to prove this increase. The
court noted that although the attorney fee statements did not
distinguish how much of the fee was attributable to the claim
for increased child support, a significant portion of the bill was
devoted to that issue. Accordingly, the trial court required Del
to pay Coleen $2,000 of her $5,046.50 legal bill.
Del timely appealed.
III. ASSIGNMENTS OF ERROR
Del argues on appeal, condensed, renumbered, and restated,
that the trial court erred in (1) failing to modify Coleen’s award
of sole legal and physical custody, (2) modifying and calculat-
ing child support, (3) ordering support to be retroactive, (4)
making the tax dependency exemption based on being current
on support, and (5) awarding attorney fees.
IV. STANDARD OF REVIEW
[1-3] Generally, issues involving the modification of a
divorce decree, parenting time, and the amount of child sup-
port are initially entrusted to the discretion of the district court,
Decisions of the Nebraska Court of Appeals
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Cite as 21 Neb. Ct. App. 535
whose determinations in these matters are reviewed de novo
on the record for an abuse of discretion. See Boamah-Wiafe v.
Rashleigh, 9 Neb. Ct. App. 503, 614 N.W.2d 778 (2000). See, also,
Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009).
The trial court’s discretion to award child support extends to
its determination that the child support award should be retro-
active. See Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249
(2005). An appellate court also reviews a trial court’s award of
attorney fees for an abuse of discretion. See Boamah-Wiafe v.
Rashleigh, supra.
[4] An abuse of discretion occurs when a trial court acts or
refrains from acting, and the selected option results in a deci-
sion which is untenable and unfairly deprives the litigant of a
substantial right or just result. See Coffey v. Coffey, 11 Neb.
App. 788, 661 N.W.2d 327 (2003).
V. ANALYSIS
1. Custody Modification
Del argues that the trial court abused its discretion in failing
to modify the custody decree. In particular, Del argues that the
trial court should have awarded him joint custody, increased
parenting time, or the right of first refusal whenever Coleen is
at work. We disagree.
[5-7] Ordinarily, custody of a minor child will not be modi-
fied unless there has been a material change in circumstances
showing that the custodial parent is unfit or that the best
interests of the child require such action. Adams v. Adams, 13
Neb. Ct. App. 276, 691 N.W.2d 541 (2005). A material change
in circumstances means the occurrence of something which,
had it been known to the dissolution court at the time of the
initial decree, would have persuaded the court to decree dif-
ferently. Id. Changes in circumstances which were within the
contemplation of the parties at the time of the decree are not
material changes in circumstances for purposes of modifying
a divorce decree. See Desjardins v. Desjardins, 239 Neb. 878,
479 N.W.2d 451 (1992).
[8] Prior to modification, two steps of proof must be taken
by the moving party. First, the moving party must show a
material change in circumstances that affects the best interests
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542 21 NEBRASKA APPELLATE REPORTS
of the child. Second, the moving party must prove that chang-
ing the child’s custody is in the child’s best interests. See
Adams v. Adams, supra.
In his counterclaim, Del claimed that Coleen has attempted
to damage the children’s relationship with him, frustrated his
ability to have contact with them, and prevented him from
exercising the right of first refusal contemplated in the ini-
tial decree, and that contact with Coleen’s new husband has
harmed the children. Del argued that these changes constitute a
material change in circumstances.
At trial, Del testified that Coleen’s husband had driven the
children while having open containers of alcohol in his car
and that Coleen had encroached on Del’s parenting time by
scheduling the children’s activities during that time and did
not allow him to make up all of the missed time. He also tes-
tified that his regular job allows him to have more time with
his children.
The trial court determined that there was not a material
change in circumstances. On a de novo review of the record,
we agree. Although Del presented numerous allegations in
his counterclaim, his argument is more limited on appeal. In
his brief, Del claims that a material change in circumstances
exists, because Coleen has “abuse[d her] power” and shut him
out of the children’s lives, Del has a flexible schedule and
time to parent, and Del has not been able to exercise as much
parenting time as the original decree contemplated. Brief for
appellant at 24.
We address the arguments Del presented on appeal in turn.
Del argues that Coleen has marginalized his ability to par-
ent by failing to communicate with him and that this failure
to communicate places an “inordinate amount of control” in
her hands. Id. Although we recognize that the parties’ strained
relationship necessarily makes parenting difficult, there is no
evidence that their relationship has deteriorated from the time
of the original divorce decree. The fact that Del and Coleen
cannot get along with each other is not a new development;
the original divorce decree recognized this when it ordered
e-mail communication and segregated seating at the children’s
Decisions of the Nebraska Court of Appeals
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activities. Del did not present persuasive evidence of a material
change in the parties’ relationship.
Similarly, Del did not present persuasive evidence that his
new work schedule was a development not contemplated at the
time of the divorce decree. At the time of the divorce decree,
Del was a full-time student. The evidence shows that at the
time of the divorce, Del was enrolled in a 2-year respiratory
therapist program. Given the limited nature of the program, the
parties certainly contemplated Del’s completion of the program
at the time of the divorce. Del’s graduation from the program
and acceptance of employment constitute a development that
was certainly expected at the time of the divorce. See McElyea
v. McElyea, No. A-09-716, 2010 WL 4237938 (Neb. App. Jan.
5, 2010) (selected for posting to court Web site).
Even if the parties had not contemplated the current situa­
tion, however, the evidence does not show that Del is cur-
rently more available to parent. The record does not reveal
Del’s schooling schedule at the time of the divorce decree. Del
testified, however, that he should not have been required to
reimburse Coleen for daycare during that time period, because
he could have watched the children every day. Given Del’s
testimony and the lack of evidence regarding his schedule at
the time of the decree, there is no basis to compare his parent-
ing availability. Accordingly, the record presented to this court
does not demonstrate a material change in circumstances based
on the changes in Del’s schedule.
Finally, Coleen’s changed work schedule does not consti-
tute a material change in circumstances. The original divorce
decree awards Del a right of first refusal while Coleen worked
the night shift. The parties did not provide evidence as to why
they limited Del’s right to time periods when Coleen worked
at night as opposed to simply providing Del a right of first
refusal when Coleen worked. While Coleen’s change in work
schedule may have prevented Del from exercising the right of
first refusal, Del did not prove that the intention of the right
was simply to provide him with increased parenting time and
therefore did not show that Coleen’s change has frustrated the
intention of the provision in the decree. Accordingly, we do not
Decisions of the Nebraska Court of Appeals
544 21 NEBRASKA APPELLATE REPORTS
find a material change in circumstances based upon Coleen’s
changed schedule.
The evidence reveals that both parents are capable of pro-
viding their children with a stable home environment. They
both love their children and support them academically, finan-
cially, and emotionally. There was no evidence that Coleen
was unfit or that the children were not thriving in her care.
Therefore, upon our de novo review of the record, we agree
that there is not sufficient evidence to demonstrate that a mate-
rial change in circumstances has occurred. Absent a material
change in circumstances, Del is not entitled to a modification
of custody.
[9] On appeal, Del argues that the trial court should have
awarded him additional parenting time. Aside from requesting
joint custody, however, Del did not request additional parenting
time in his counterclaim or at trial. An appellate court will not
consider an issue on appeal that was not presented to or passed
upon by the trial court. Scurlocke v. Hansen, 268 Neb. 548, 684
N.W.2d 565 (2004). Because the issue was not presented to the
trial court, we do not consider it on appeal.
2. Child Support Modification
Del argues that the trial court erred in modifying child
support and in its child support calculation. Del argues that
the support was incorrectly calculated, because the trial court
used the wrong worksheet and income level, improperly gave
Coleen credit for providing health insurance, and should have
awarded a deviation. We disagree.
(a) Modification
[10] A parent seeking to modify a child support award must
show a material change in circumstances, including changes in
the financial position of the parent obligated to pay support.
See Sabatka v. Sabatka, 245 Neb. 109, 511 N.W.2d 107 (1994).
Del’s financial position changed drastically from the time
of the divorce decree. At the time of the decree, Del was an
unemployed student with minimal income. At the time of the
request for modification, he worked full time as a respiratory
therapist and earned a stable salary. The trial court did not err
Decisions of the Nebraska Court of Appeals
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in finding a material change supported modifying Del’s child
support award.
(b) Sole Custody Worksheet
and Deviation
Del argues that the trial court abused its discretion in using
the sole custody worksheet, because the parties are effectively
exercising joint custody. Del notes that he has custody of the
children 163 to 166 days per year, or 44 to 45 percent of the
time. Alternatively, Del argues that the trial court abused its
discretion in failing to deviate from the award produced using
the joint custody worksheet because of Del’s substantial par-
enting time.
[11,12] Generally, child support payments should be set
according to the guidelines established pursuant to Neb. Rev.
Stat. § 42-364.16 (Reissue 2008). Hajenga v. Hajenga, 257
Neb. 841, 601 N.W.2d 528 (1999). Although the guidelines
are not to be applied with blind rigidity, child support shall
be established in accordance with the guidelines, unless the
court finds that one or both parties have produced sufficient
evidence to rebut the presumption that the application of the
guidelines will result in a fair and equitable child support
order. § 42-364.16; Pool v. Pool, 9 Neb. Ct. App. 453, 613 N.W.2d
819 (2000).
[13,14] Neb. Ct. R. § 4-212 (rev. 2011) establishes a pre-
sumption of joint support when the trial court orders joint
custody and each party’s parenting time exceeds 142 days
per year. If trial evidence establishes a joint physical custody
arrangement, courts will so construe it, regardless of how prior
decrees or court orders have characterized the arrangement.
Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999).
Where parties exercise joint physical custody, the trial court
must use the joint custody worksheet to calculate support. See
Pool v. Pool, supra.
[15] Joint physical custody is generally defined as “joint
responsibility for minor day-to-day decisions and the exer-
tion of continuous physical custody by both parents over a
child for significant time periods.” Id. at 457, 613 N.W.2d
at 823. In Hill v. Hill, 20 Neb. Ct. App. 528, 827 N.W.2d 304
 Decisions of the Nebraska Court of Appeals
546 21 NEBRASKA APPELLATE REPORTS
(2013), we examined the line of Nebraska cases defining
joint physical custody. (These cases are: Elsome v. Elsome,
supra; Pool v. Pool, supra; Heesacker v. Heesacker, 262 Neb.
179, 629 N.W.2d 558 (2001); and Drew on behalf of Reed v.
Reed, 16 Neb. Ct. App. 905, 755 N.W.2d 420 (2008).) In Hill, we
noted that Nebraska cases distinguish between a continuous
alternating custody schedule and a more “‘typical’” week-
end, holiday, and summer visitation schedule. 20 Neb. Ct. App.
at 535, 827 N.W.2d at 311. We explained that “the amount
of time the children spend with each parent is less important
than how the time is allocated when determining whether joint
physical custody exists.” Id. Part of the reason for this distinc-
tion is that the way parenting time is allocated relates to the
expenses associated with that responsibility. See Heesacker v.
Heesacker, supra. In Heesacker, for example, the court deter-
mined that a father’s typical visitation schedule did not give
rise to the same expenses as the mother’s day-to-day schedule
even though the father parented the children 35 percent of
the time.
Del has custody of the children 163 to 166 days per year,
which raises the presumption that he exercises joint custody
with Coleen. His custody schedule, however, consists of alter-
nating weekends, one weekday night, alternating holidays,
and an extended time period in the summer. He did not testify
that this schedule caused him to expend more money than any
other noncustodial parent. His parenting time constitutes a
typical visitation schedule. See Pool v. Pool, supra. Because
his allocation of parenting time constitutes a typical visitation
schedule, Coleen rebutted the presumption of joint custody.
Accordingly, there was no reason for the trial court to use the
joint support worksheet or to deviate from the child support
guidelines based on the visitation schedule. The trial court did
not abuse its discretion by failing to do so.
(c) Income Calculation
Del argues that the trial court erred in using an inflated
income figure in calculating his child support obligation. Del
argues that the evidence shows Del’s monthly income as
$3,692.52 and Coleen’s as $3,744, both of which are lower
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than the income amounts used by the trial court to calculate
support. While we agree with Del’s analysis of what the record
reflects, we are mindful of the fact that the worksheets Del
offered at trial contained the same gross income amounts con-
tained in the State’s proffered worksheets and used by the court
in its calculations. Del claims the court erred in utilizing the
very amounts that he suggested the court use.
[16-18] Generally, a party cannot complain of error which the
party has invited the court to commit. Kalkowski v. Kalkowski,
258 Neb. 1035, 607 N.W.2d 517 (2000). However, parties in
a proceeding to dissolve a marriage cannot control the dispo-
sition of matters pertaining to minor children by agreement.
Lawson v. Pass, 10 Neb. Ct. App. 510, 633 N.W.2d 129 (2001).
The paramount concern and question in determining child sup-
port, whether in the initial marital dissolution action or in the
proceedings for modification of decree, is the best interests of
the child. Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d
503 (2004).
Since Del utilized these same amounts on the worksheets
he offered as evidence, and the use of these amounts does
not detrimentally affect the children, we cannot say the court
abused its discretion in relying upon these amounts to calculate
child support.
(d) Health Insurance
Del argues that the trial court erred in failing to give him
credit for providing the children health insurance and in giv-
ing Coleen credit for providing health insurance. The divorce
decree ordered Coleen to provide the children health insur-
ance unless Del could do so more economically. Coleen began
providing the children with health insurance. Later, Del had
the option to provide the children with health insurance that
had a slightly lower premium rate and did so. Coleen main-
tained health insurance for the children, however, because her
plan did not require the parties to make any copayments for
health care.
The trial court determined that Coleen’s insurance was
more economical and ordered her to continue providing it to
the children. Consequently, Del is not required to provide the
Decisions of the Nebraska Court of Appeals
548 21 NEBRASKA APPELLATE REPORTS
children with health insurance. Because Coleen was ordered
to provide the children health insurance and Del was not, the
trial court did not err in giving Coleen credit for providing the
insurance and in failing to give credit to Del.
3. Awarding R etroactive
Support
Del argues that the trial court erred in requiring him to pay
retroactive child support, because he has been involved in rais-
ing the children, is beginning a new career, and cannot afford
to pay such a large arrearage. We disagree.
[19-21] In determining whether to order retroactive support,
a court must consider the parties’ status, character, situation,
and attendant circumstances. See Cooper v. Cooper, 8 Neb.
App. 532, 598 N.W.2d 474 (1999). As part of that consider-
ation, the court must consider whether the obligated party has
the ability to pay the lump-sum amount of a retroactive award.
See Wilkins v. Wilkins, 269 Neb. 937, 697 N.W.2d 280 (2005).
Absent equities to the contrary, modification of a child support
order should be applied retroactively to the first day of the
month following the filing date of the application for modifica-
tion. Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005).
The children and the custodial parent should not be penalized
by delay in the legal process, nor should the noncustodial par-
ent gratuitously benefit from such delay. Pursley v. Pursley,
261 Neb. 478, 623 N.W.2d 651 (2001).
In this case, Del became employed in June 2010 and began
earning a substantial salary. During this time, he was paying
only $69 a month in child support. Despite his increased salary,
he continued to pay only $69 in support without interference
until February 2011, when the State petitioned the court to
increase his child support obligation. The trial court awarded
child support retroactively from March 2011, the first month
after the filing of the modification application. This retroac-
tive award keeps with the principle that a noncustodial parent
should not gratuitously benefit from delays in the legal sys-
tem when he or she should, and is able to, pay an increased
amount of child support. Del did not explain why it would
be ­inequitable for him to pay retroactive support, nor did
Decisions of the Nebraska Court of Appeals
McDONALD v. McDONALD 549
Cite as 21 Neb. Ct. App. 535
he explain why paying the lump sum would be a hardship.
Accordingly, the trial court did not err in ordering the child
support be awarded retroactively.
4. Tax Exemption
Del argues that the trial court erred in making his tax depen-
dency exemption dependent on his being current in paying
child support. We disagree.
[22,23] The federal government allows taxpayers to
exclude from their income an exemption amount for each
individual who is a dependent of the taxpayer in the tax-
able year. I.R.C. § 151(c) (2006). Because a tax dependency
exemption is an economic benefit nearly identical in nature
to an award of child support or alimony, a trial court may
exercise its equitable powers to allocate dependency exemp-
tions between the custodial and noncustodial parent. See
Prochaska v. Proschaka, 6 Neb. Ct. App. 302, 573 N.W.2d 777
(1998). Although a custodial parent is presumptively entitled
to a tax dependency exemption, a trial court may use its
equitable powers to allocate the exemption to a noncustodial
parent if the situation of the parties so requires. See, I.R.C.
§ 152(c)(4)(B)(i) (2006); State on behalf of Pathammavong
v. Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004). If
the situation of the parties does not require allocating a tax
dependency exemption to the noncustodial parent, however,
a trial court is not required to allocate it. For example, in
State ex rel. Wells v. Wells, No. A-10-1161, 2011 WL 3689142
(Neb. App. Aug. 23, 2011) (selected for posting to court Web
site), we found that the trial court abused its discretion in
awarding a father a tax dependency exemption when he was
paying a relatively low amount of child support.
The federal government grants a dependency exemption to
a parent who provides support to a dependent minor. If Del
is not current on his child support, then he is not supporting
the minor in the way the court deemed necessary. Given the
purpose of the tax dependency exemption and the trial court’s
discretion in awarding child support and tax exemptions, we
cannot say that it was an abuse of discretion for the trial court
Decisions of the Nebraska Court of Appeals
550 21 NEBRASKA APPELLATE REPORTS
to order that Del be current in paying child support in order to
claim a tax dependency exemption.
5. Attorney Fees
Del argues that the trial court abused its discretion in
awarding Coleen attorney fees, because the parties have
similar incomes and Coleen refused to cooperate with Del.
We disagree.
[24-27] Attorney fees are recoverable in Nebraska only
when provided for by law or allowed by custom. Cross v.
Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999). Attorney
fees and costs are allowed in child support cases brought by a
child’s mother, father, guardian or next friend, the county attor-
ney, or other authorized attorney. See id. The award of attorney
fees depends on multiple factors that include the nature of the
case, the services performed and results obtained, the earning
capacity of the parties, the length of time required for prepa-
ration and presentation of the case, customary charges of the
bar, and general equities of the case. Sitz v. Sitz, 275 Neb. 832,
749 N.W.2d 470 (2008). Trial courts and appellate courts are
equally regarded as experts at determining the value of legal
services. See In re Interest of Antone C. et al., 12 Neb. Ct. App.
152, 669 N.W.2d 69 (2003). Because the trial court is in a bet-
ter position to evaluate the award of attorney fees, however, an
appellate court interferes only when the award is excessive or
insufficient. See id. Our de novo review of the record did not
reveal an abuse of discretion in ordering Del to pay $2,000 in
attorney fees.
VI. CONCLUSION
We determine that the trial court did not abuse its dis-
cretion in failing to modify custody, in its determination
that Del’s child support obligation should be modified, or
in awarding attorney fees. Accordingly, we affirm the trial
court’s decision.
Affirmed.