Pearrow v. Pearrow

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/28/2019 12:06 AM CDT
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PEARROW v. PEARROW
Cite as 27 Neb. Ct. App. 209
Wendy Pearrow, appellant, v.
M arcus G. Pearrow, appellee.
___ N.W.2d ___
Filed May 7, 2019. No. A-18-334.
1. Modification of Decree: Appeal and Error. Modification of a dis-
solution decree is a matter entrusted to the discretion of the trial court,
whose order is reviewed de novo on the record, and which will be
affirmed absent an abuse of discretion by the trial court.
2. Modification of Decree: Attorney Fees: Appeal and Error. In an
action for modification of a marital dissolution decree, the award
of attorney fees is discretionary with the trial court, is reviewed de
novo on the record, and will be affirmed in the absence of an abuse
of discretion.
3. Child Support: Rules of the Supreme Court. A deviation in the
amount of child support is allowed whenever the application of the
Nebraska Child Support Guidelines in an individual case would be
unjust or inappropriate.
4. Attorney Fees. Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and accepted uni-
form course of procedure has been to allow recovery of attorney fees.
5. ____. Customarily, attorney fees are awarded only to prevailing parties
or assessed against those who file frivolous suits.
6. Divorce: Attorney Fees. A uniform course of procedure exists in
Nebraska for the award of attorney fees in dissolution cases.
7. ____: ____. In awarding attorney fees in a dissolution action, a court
shall consider the nature of the case, the amount involved in the contro-
versy, the services actually performed, the results obtained, the length
of time required for preparation and presentation of the case, the nov-
elty and difficulty of the questions raised, and the customary charges of
the bar for similar services.
Appeal from the District Court for Sarpy County: Stefanie
A. M artinez, Judge. Affirmed.
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PEARROW v. PEARROW
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Angela M. Minahan, of Reinsch, Slattery, Bear & Minahan,
P.C., L.L.O., for appellant.
No appearance for appellee.
Moore, Chief Judge, and Riedmann and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
Wendy Pearrow appeals the order of the district court for
Sarpy County which modified the decree dissolving her mar-
riage to Marcus G. Pearrow. On appeal, she challenges the
district court’s calculation of child support, the court’s failure
to divide expenses for two of the parties’ four children, and the
court’s failure to award her attorney fees. Because we find no
merit to the arguments raised on appeal, we affirm.
BACKGROUND
A decree dissolving Wendy and Marcus’ marriage was
entered in November 2015. The parties were awarded joint
legal and physical custody of their four minor children, with the
parents alternating parenting time on a weekly basis. Marcus
was ordered to pay $631 per month in child support.
In October 2016, Wendy filed a complaint to modify the
decree. Prior to trial, the parties agreed to retain joint legal
custody of all of the children and joint physical custody of
the two younger children. They agreed to continue to alternate
parenting time on a weekly basis for the younger children, but
on the days that Marcus is unable to pick them up from school
at 3:20 p.m., they will stay with Wendy until Marcus can pick
them up after work around 5 p.m. The parties additionally
agreed to modify the decree so that Wendy would have sole
physical custody of the two older children. Parenting time
between Marcus and the two older children would be arranged
between Marcus and the children.
The parties were unable to agree on child support, however,
so trial was held as to that issue. Evidence was adduced as to
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the parties’ employment and income, and each party submitted
a proposed child support calculation to the court. Wendy pro-
posed that the court utilize a sole physical custody calculation
for all four children. She reasoned that she had sole custody
of the two older children, for which Marcus would receive an
unknown amount of parenting time, and that even though the
parties had joint custody of the two younger children, Wendy
had additional time with them after school until Marcus could
pick them up after work. Wendy also asked that the court
divide the out-of-pocket expenses for all four children equally
between the parties and award her attorney fees.
Marcus described his proposed child support calculation
as a hybrid between a joint physical custody calculation
and a sole physical custody calculation. He calculated child
support for all four children under each calculator and then
averaged the amounts owed, while deducting credit for the
health insurance he carries for the children. He also provided
calculated amounts for child support for three children, two
children, and one child. The exhibit he offered as an aid to the
court explained how he arrived at the amounts proposed and
included the worksheets for sole physical custody and joint
physical custody of the children.
With respect to direct expenses for the children, such as
clothing and extracurricular activities, Marcus agreed that he
should contribute to those expenses for the two younger chil-
dren for whom he has joint custody and agreed that he should
pay his proportionate share of their expenses, which was 70
percent. He objected, however, to sharing expenses for the
two older children.
After trial, the district court entered a modification order.
The court approved the terms of the parties’ agreement, and
it was incorporated into the order. The court ordered Marcus
to pay $876 per month in child support for four children,
$561 per month for three children, $315 per month for two
children, and $153 per month for one child. The order indi-
cates that the child support worksheet is attached and marked
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as “‘Exhibit A’” and was utilized and adopted by the court.
The order also provided that Marcus was to pay 70 percent
and Wendy was to pay 30 percent of reasonable and direct
expenses, such as clothing and extracurricular activities, for
the two younger children. All other requests made by either
party were denied. Wendy appeals.
ASSIGNMENTS OF ERROR
Wendy assigns that the district court erred in (1) calculating
child support, (2) failing to make findings related to the two
older children’s out-of-pocket activity expenses, and (3) fail-
ing to make findings related to her request for attorney fees.
STANDARD OF REVIEW
[1] 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. Hopkins v. Hopkins, 294
Neb. 417, 883 N.W.2d 363 (2016).
[2] In an action for modification of a marital dissolution
decree, the award of attorney fees is discretionary with the
trial court, is reviewed de novo on the record, and will be
affirmed in the absence of an abuse of discretion. Garza v.
Garza, 288 Neb. 213, 846 N.W.2d 626 (2014).
ANALYSIS
Child Support.
Wendy argues that the district court erred in calculating
child support because the amounts contained in the court’s
order are inconsistent with the attached worksheet, the attached
worksheet is not marked as “‘Exhibit A’” as indicated, and the
court improperly deviated from the child support guidelines.
We find no abuse of discretion in the child support order.
All orders concerning child support, including modifica-
tions, should include the appropriate child support work-
sheets. Rutherford v. Rutherford, 277 Neb. 301, 761 N.W.2d
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922 (2009). The purpose of this requirement is to ensure that
the appellate courts are not left to speculate about the trial
court’s conclusions; these worksheets show the parties and the
appellate courts that the trial court has “‘“done the math.”’”
Fetherkile v. Fetherkile, 299 Neb. 76, 98, 907 N.W.2d 275,
294 (2018). Without a worksheet specifying the trial court’s
calculations and delineating any deviations it took into consid-
eration, an appellate court is unable to undertake any mean-
ingful review. Pearson v. Pearson, 285 Neb. 686, 828 N.W.2d
760 (2013).
In the present case, despite Wendy’s argument to the con-
trary, the worksheet attached to the district court’s order does
display the calculations for sole custody of all four children
and for joint custody of all four children. Although the fig-
ures on the worksheets do not match the amounts contained
in the court’s order, it is clear that the court adopted Marcus’
proposed calculation, which explains how it arrived at the
amounts owed. And the court attached the worksheets as it was
required to do.
Although it would have been a better practice for the court
to specify that it was adopting the calculation proposed by a
party or to include the explanation in its order, based on the
record before us, we are not left to speculate about the district
court’s conclusions and are able to undertake a meaningful
review. Because the order contains the child support amounts
proposed by Marcus and the attached worksheets identical to
those offered by Marcus, we understand that the court adopted
his proposed calculations and the methodology by which he
calculated them.
We also recognize that the worksheet attached to the
court’s order was not marked as “‘Exhibit A’” as indicated
in the order, but because it was attached to the order, there is
no confusion as to what worksheet the court was referencing.
And the missing label does not affect our ability to conduct a
meaningful review or to see that the district court has “‘“done
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the math.”’” See Fetherkile v. Fetherkile, 299 Neb. at 98, 907
N.W.2d at 294. We therefore do not find that the district court
abused its discretion in the child support order.
Wendy additionally claims that the district court improperly
deviated from the child support guidelines. We do not agree
that the child support order here constitutes a deviation from
the guidelines.
In general, child support payments should be set accord-
ing to the Nebraska Child Support Guidelines. Pearson v.
Pearson, supra. The guidelines shall be applied as a rebut-
table presumption, and all orders for child support obligations
shall be established in accordance with the provisions of the
guidelines unless the court finds that one or both parties have
produced sufficient evidence to rebut the presumption that the
guidelines should be applied. Pearson v. Pearson, supra; Neb.
Ct. R. § 4-203 (rev. 2011).
[3] Under the guidelines, a deviation in the amount of child
support is allowed whenever the application of the guide-
lines in an individual case would be unjust or inappropriate.
Pearson v. Pearson, supra. Deviations from the guidelines
must take into consideration the best interests of the child or
children. Id.
The complication in the instant case is that the custody
arrangement agreed to by the parties does not fit the definition
of sole physical custody, joint custody, or split custody so as
to fit squarely within a single type of child support calcula-
tion under the guidelines. In her brief, Wendy refers to the
parties’ arrangement as a “hybrid” custody arrangement. Brief
for appellant at 13. Thus, there is no one application of the
guidelines for the present situation from which the court could
deviate. In other words, a deviation is an amount ordered that
is different from the amount that should have been ordered
under a strict application of the child support guidelines. But
here, there is no ability to strictly apply the guidelines. As a
result, the child support ordered by the district court was not
a deviation from the guidelines, but, rather, a flexible solution
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to the unique custody arrangement present here. See Gress v.
Gress, 271 Neb. 122, 710 N.W.2d 318 (2006) (child support
guidelines offer flexibility and guidance, with understand-
ing that not every child support scenario will fit neatly into
calculation structure). We therefore reject Wendy’s argument
that the support ordered by the district court was an improper
deviation from the guidelines.
To the extent Wendy argues that the district court abused its
discretion in failing to adopt her proposed child support cal-
culation, we disagree. Wendy proposed using a sole custody
calculator for all four children or, in the alternative, adjusting
the amount owed pursuant to Neb. Ct. R. § 4-210. She rea-
soned that she had sole custody of the two older children and
that the two younger children were with her after school dur-
ing Marcus’ parenting time and potentially during the summer
while Marcus was at work.
Section 4-210 allows for adjustments in child support related
to parenting time when support is not calculated under joint
physical custody and parenting time substantially exceeds
alternating weekends and holidays and 28 days or more in any
90-day period. Thus, Wendy’s alternative argument proposed
that the court utilize the sole custody calculation but give
Marcus credit for the alternating weeks of parenting time he
has with the two younger children, although she still proposed
subtracting out the hours the younger children will spend with
her during Marcus’ parenting time. Essentially, Wendy pro-
posed that the court “deviate from the sole custody calculation
based upon the parenting time that [Marcus] has” in the man-
ner set forth in § 4-210.
Although the district court’s order does not explicitly state
its rationale, we can infer that the court rejected Wendy’s
request to utilize a sole custody calculator because it adopted
Marcus’ proposed calculation. We find no abuse of discretion
in this decision because the children will not spend a sig-
nificant amount of time with Wendy during Marcus’ parenting
time. Marcus testified that he works from home approximately
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twice per month and has the ability to do so more frequently.
Thus, it is unclear whether the children will spend addi-
tional time with Wendy during the summer or if Marcus will
work from home more often to allow the children to remain
with him.
Further, § 4-210 allows for adjustments based on additional
days spent with a parent, and the word “day” is defined to
include an overnight period. See Neb. Ct. R. § 4-212 (rev.
2011). The guidelines therefore do not appear to contemplate
adjustments based on a short number of additional hours spent
with a parent. Given that the parties continue to share joint
physical custody of two of the children, the court’s decision
to reject Wendy’s calculation based on sole custody of all four
children was not an abuse of discretion.
Out-of-Pocket Expenses.
Wendy assigns that the district court failed to make a find-
ing regarding the division of expenses for the two older chil-
dren. The order does not specifically address out-of-pocket
expenses for the older children but states that “all other
requests made by either party in this proceeding are denied.”
Thus, the order implicitly denied Wendy’s request to divide
these expenses for the older children.
Wendy argues that assuming the court truly intended to
adopt and order child support based on a joint custody calcula-
tion, then it was required under the child support guidelines
to divide out-of-pocket activity expenses for the two older
children. Wendy is correct that if child support is determined
under a joint physical custody calculation, “all reasonable and
necessary direct expenditures made solely for the child(ren)
such as clothing and extracurricular activities shall be allo-
cated between the parents.” § 4-212. However, we disagree
that the district court used a joint custody calculation. Rather,
it used the hybrid approach proposed by Marcus. Therefore,
Wendy’s argument has no merit.
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Attorney Fees.
Wendy asserts that the district court erred in failing to
award her attorney fees. She again claims that the district
court failed to rule on this issue because the order of modi-
fication is silent as to her request for an award of attorney
fees. However, because the order denied “all other requests
made by either party,” we construe this as a denial of Wendy’s
request for attorney fees. See Olson v. Palagi, 266 Neb. 377,
665 N.W.2d 582 (2003) (silence of judgment on issue of attor-
ney fees requested in pleadings must be construed as denial
of request). We conclude that this decision was not an abuse
of discretion.
[4-6] Attorney fees and expenses may be recovered only
where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow recov-
ery of attorney fees. Garza v. Garza, 288 Neb. 213, 846
N.W.2d 626 (2014). Customarily, attorney fees are awarded
only to prevailing parties or assessed against those who file
frivolous suits. Id. A uniform course of procedure exists in
Nebraska for the award of attorney fees in dissolution cases.
Id. Thus, there was authority, in this modification of a dissolu-
tion decree case, for the awarding of attorney fees. See id.
[7] In awarding attorney fees in a dissolution action, a court
shall consider the nature of the case, the amount involved in
the controversy, the services actually performed, the results
obtained, the length of time required for preparation and pre-
sentation of the case, the novelty and difficulty of the ques-
tions raised, and the customary charges of the bar for similar
services. Id.
In the instant case, the parties settled most of the issues
raised in the complaint for modification with the excep-
tion of child support and child-related expenses. The court
adopted Marcus’ proposed child support calculation and denied
Wendy’s request to divide expenses for the two older children.
We therefore find no abuse of discretion in the court’s decision
to deny Wendy’s request for attorney fees.
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CONCLUSION
We conclude that the district court did not abuse its dis-
cretion in its child support order or in denying Wendy’s
request for a division of expenses for the two older children
or for attorney fees. Accordingly, the district court’s order
is affirmed.
A ffirmed.