Kelly v. Smith

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
BRITTANY L. KELLY, APPELLANT,
V.
CHRISTOPHER W. SMITH, APPELLEE.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
KELLY V. SMITH
Filed June 24, 2014. No. A-13-482.
Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge. Affirmed
in part, and in part reversed and remanded with directions.
Christopher A. Vacanti and Charles L. Grimes, of Vacanti Shattuck, for appellant.
No appearance for appellee.
INBODY, Chief Judge, and IRWIN and BISHOP, Judges.
BISHOP, Judge.
Brittany L. Kelly (Brittany) appeals from the decree of paternity entered by the Sarpy
County District Court. The decree established Christopher W. Smith as the father of their minor
child, Michael Smith, born in Nebraska in January 2011. The trial court awarded the parties joint
legal custody, awarded Christopher 2 months of extended parenting time in Virginia, ordered
Christopher to pay child support at a downward deviation from the Nebraska Child Support
Guidelines, and did not award child support and childcare costs retroactive to the date of
Michael’s birth. Brittany appeals, arguing such determinations were an abuse of discretion. We
affirm the court’s award of joint legal custody and child support, but reverse and remand with
directions the court’s determination regarding extended parenting time, and reverse and remand
for further proceedings the court’s determinations regarding retroactive child support and
childcare costs.
BACKGROUND
Brittany, a Nebraska resident, and Christopher, a Virginia resident, engaged in a
long-distance romantic relationship for 4 years. The parties ended their relationship the April
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following Michael’s birth. Michael has resided with Brittany in Nebraska from birth. Brittany
filed a complaint to establish paternity, custody, and support on August 1, 2011.
Brittany and Christopher participated in mediation in February 2012 and developed a
parenting plan. Christopher initially agreed to the mediated parenting plan, but at some point that
is not clear from our record, he had a change of heart regarding legal custody and parenting time.
Trial was held on January 11, 2013, to resolve disputed issues of custody, parenting time, child
support, and childcare costs. The parties stipulated to paternity on the record.
Brittany testified that when Michael was born, she was attending nursing school. While
in school, she taught dance lessons part time, but quit after having Michael. Brittany graduated
from nursing school in May 2012 and began working as a registered nurse in October 2012. At
the time of trial, Brittany was earning approximately $3,241.68 per month.
Christopher, age 25 at the time of trial (Brittany’s age was not apparent in our record),
has been employed as a police officer with the city of Hampton, Virginia, since 2008. At the time
of trial, Christopher typically worked an evening shift (4 p.m. to 12:30 a.m.). A December 28,
2012, pay stub received into evidence reflects that Christopher’s base salary was $40,863 and
that his regular pay for a 2-week period was based on 80 hours of work. Christopher explained
that his base salary has not changed in 6 years, but that his income is variable because he can and
does earn more for overtime, court time, and extra duty. His 2011 W-2 form reflects his wages
for that year were $44,083.32, and his gross pay in 2012 was $49,238.03, according to the 2012
pay stub. Christopher provides medical coverage for Michael through his employer.
Christopher testified he was in the process of making a career change to the fire
department. Shortly before trial, the chief of the Hampton Fire Department called him to
schedule “panel interviews,” which Christopher said meant that “more likely than not” he will be
switching to the fire department. A work schedule at the fire department would consist of 9½
24-hour shifts per month, and his base pay would remain the same.
At the time of trial, Christopher had seen Michael (then 2 years old) in person on three
different occasions. Christopher was present in Nebraska for 5 weeks when Michael was born in
January 2011. A few months later, Brittany took Michael to Virginia for 4 weeks from June to
July. Although Christopher spent time with Michael during the first 2 weeks of Brittany and
Michael’s visit, Christopher admittedly did not see Michael at all for the next 2 weeks because
he was busy with work, he had just moved out of his parents’ house, he had started a new
relationship, and “regrettably let my obligations . . . as a father fall to the wayside for those two
weeks.” Nearly a year later, in March 2012, Brittany’s parents paid for Christopher to visit
Michael in Nebraska. The record does not disclose the length of that visit. Christopher returned
to Nebraska one time since March 2012 (for trial in the present case), but did not schedule time
to see Michael due to his lack of annual and sick leave. At the time of trial on January 11, 2013,
Christopher had not seen Michael in person since March 2012.
Christopher and Brittany use “Skype” so that Christopher can see and communicate with
Michael using the Internet. Brittany compiled all of the Skype logs between Christopher and her
from January 2011 to the date of trial, which reflect that Christopher generally would use Skype
once or twice a month, between 10 minutes to about 1 hour each time. Brittany’s logs reflect
several months where Christopher had no Skype communication with Michael at all, including a
4-month period between June and October 2012. Christopher explained that this gap was because
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he had transferred to a midnight shift, which was very difficult on him, and he spent his free time
sleeping or trying to recuperate. However, Christopher was taken off the midnight shift in July
2012, and the evidence reflects only two subsequent Skype communications--one in October and
the other on Michael’s birthday in January 2013.
Christopher testified his Skype schedule was limited because he had been working as
much extra duty as possible. Additionally, he did not have an Internet connection at his house,
and his only reliable Internet connection was at his parents’ house, which was 1 hour away.
Christopher said that those factors, combined with his sleep schedule, trying to keep himself fed,
and making sure he had a uniform and serviceable weapon, caused him to “just [run] out of time
many, many days.”
Christopher testified he did not use the telephone to communicate with Michael because
Christopher did not like it. Brittany testified that she and Christopher have “businesslike”
conversations on the telephone about child support, but Christopher does not often inquire about
how Michael is doing.
Christopher felt that he should have joint legal custody. He noted that while it would be
more convenient for Brittany to have sole legal custody, he wanted to be consulted on
nonemergency issues. Christopher had no doubt he could work with Brittany for Michael’s best
interests, and he pointed out that they have been communicating in the last 2 years about
Michael, including agreeing to raise him in the Catholic faith. Brittany was opposed to joint legal
custody because Christopher cannot be in Nebraska physically, so his knowledge of how to base
his decisions comes from her, and it would be easier if she could decide on her own.
At trial, Christopher testified he would like 3 months of consecutive extended parenting
time in Virginia. He said that his mother could babysit Michael at her house, because he
“hopefully” will be in the fire academy, and if he is, he will have day-shift hours so he could
pick up Michael from his mother’s house in the evening. Christopher testified that his mother’s
physical health “isn’t the best lately” and that she is no longer able to work outside the home.
Christopher does not believe it would affect her ability to attend to Michael, but he did admit that
“the doctors don’t know what’s gone on with her” and she has “good days and bad days.”
Christopher submitted his proposed parenting plan to the court. According to his
proposed parenting plan, the parties would share joint legal custody, Christopher would have 4
hours of Skype visitation per month, and he could exercise visitation in Nebraska with advanced
notice. Christopher’s proposed parenting plan also included a provision for “Extended Parenting
Time,” stating that Christopher “may have extended parenting time with his minor child for a
period of three (3) months each year beginning in 2013.”
Brittany submitted the parties’ mediated parenting plan to the court and requested that the
court adopt it. Pursuant to the parties’ mediated parenting plan, Brittany would have sole legal
and primary physical custody of Michael, subject to 4 hours of Skype visitation with Christopher
per month. The parties agreed that Christopher could travel to Nebraska with advanced notice to
spend parenting time with Michael in Brittany’s home. The parties agreed that Christopher
would have no overnight visitation at the present time and that visitation outside of Michael’s
home would have Brittany in attendance. Due to Michael’s age, all holidays and vacation time
would be classified as regular parenting time, which the parties agreed to remediate in the year
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2014. The parties also agreed to remediate regular parenting time, including summer parenting
time, between January and April 2014.
No temporary order appears in our record, but Christopher voluntarily paid child support
to Brittany beginning in February 2011. Brittany testified Christopher paid her anywhere from $0
to $600 per month through November 2012, although Christopher testified he also sent checks
for December 2012 and January 2013. Christopher testified he initially gave Brittany $300
because he “had no idea of the costs that would be required to raise a child and how much he
needed to be properly supported,” and subsequently began paying her $600 per month.
Christopher said that because he had some unforeseen bills and expenses and an ankle injury
which prevented him from finding a “good amount” of extra duty, he began paying Brittany less
and less frequently because he “had to wait for there to be money in the bank in order to send her
a check.” Christopher testified he thought his voluntary payments to Brittany included money
toward daycare. At the time of trial, Christopher had paid Brittany a total of $11,300.
Brittany sought additional child support retroactive to February 1, 2011. Brittany
prepared two child support worksheets pursuant to the guidelines that were received into
evidence as aids to the court. Brittany’s worksheets reflect that Christopher should have paid
child support in the total amount of $16,212 between February 1, 2011, and January 1, 2013.
Brittany also requested that Christopher reimburse her $2,527.74 for his proportionate share (54
percent) of the daycare costs she incurred while she was in nursing school. Brittany asked the
court to enter a judgment against Christopher in the amount of $7,439.74 for retroactive child
support and childcare, after providing him with credit for $11,300, the amount he voluntarily
paid.
After both parties rested, the court indicated to the parties on the record that its decisions
would “somewhat” depend on whether Christopher moves to the fire department. The parties
agreed to leave the record open until February 28, 2013, for them to submit evidence as to
whether Christopher’s transfer to the fire department would occur. Our record does not reflect
that the parties submitted any additional evidence.
On April 8, 2013, the court entered a decree of paternity. The court found that it was in
Michael’s best interests for the parties to have joint legal custody, provided that if the parties
cannot agree on an issue, Brittany has the final say, subject to the court’s review. The court
awarded Brittany primary physical custody, subject to Christopher’s parenting time provided in
the court-modified parenting plan attached to the decree.
The court’s parenting plan attached to the decree generally contains the same language as
the parties’ mediated parenting plan, with some revisions. Relevant to this appeal, the court
inserted an edited page from Christopher’s proposed parenting plan, which contains a provision
for “Extended Parenting Time.” According to the court’s modified plan, Christopher “may have
extended parenting time with Michael for a period of two (2) months each year beginning in
2014.” The parenting plan also provides Christopher with 8 hours of Skype visitation per month.
The decree provides that Christopher is responsible for all transportation costs associated with
his parenting time. The court also struck out the provisions in the mediated parenting plan
regarding remediation, as well as the provision that vacation time was to be classified as regular
parenting time.
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The court attached a child support worksheet to the decree (identical to the 2012
worksheet prepared by Brittany), reflecting that Christopher’s child support obligation would be
$588 per month pursuant to the guidelines. However, the court found that because Christopher
will need to travel for purposes of visitation, a downward deviation was necessary. The court
therefore ordered Christopher to pay $450 per month commencing April 1, 2013. The court also
provided Christopher with an abatement of one-half his child support obligation during the
exercise of his 60 days of visitation. Work-related childcare expenses were divided between the
parties such that Brittany was responsible for 46 percent and Christopher 54 percent. The court
did not make specific findings regarding retroactive child support or childcare costs.
Brittany filed a motion to alter or amend on April 16, 2013, requesting that the court
reconsider adopting the parties’ mediated parenting plan. Brittany requested that the court
require Christopher to travel to Nebraska on a regular basis first to become familiar with Michael
before Christopher can exercise extended parenting time in Virginia and that the court
reasonably divide transportation costs between the parties rather than providing Christopher with
a downward deviation in child support because Christopher has never exercised regular parenting
time. Brittany also requested that the court reconsider awarding retroactive child support and
childcare costs. The court denied Brittany’s motion to alter or amend on May 3, 2013, and
Brittany timely appealed.
ASSIGNMENTS OF ERROR
Brittany claims the trial court erred in (1) its award of joint legal custody, (2) its award of
extended parenting time to Christopher, (3) its award of child support, and (4) its failure to award
retroactive child support and childcare costs.
STANDARD OF REVIEW
Child custody determinations, and parenting time determinations, are matters initially
entrusted to the discretion of the trial court, and although reviewed de novo on the record, the
trial court’s determination will normally be affirmed absent an abuse of discretion. Hill v. Hill,
20 Neb. Ct. App. 528, 827 N.W.2d 304 (2013).
An appellate court reviews child support cases de novo on the record and will affirm the
trial court’s decision in the absence of an abuse of discretion. State on behalf of A.E. v.
Buckhalter, 273 Neb. 443, 730 N.W.2d 340 (2007). A judicial abuse of discretion exists when a
judge, within the effective limits of authorized judicial power, elects to act or refrains from
acting, and the selected option results in a decision which is untenable and unfairly deprives a
litigant of a substantial right or a just result in matters submitted for disposition through a judicial
system. Id.
ANALYSIS
Joint Legal Custody.
In Christopher’s answer, he requested joint legal custody, but following mediation, the
parties agreed that Brittany would have sole legal custody. At trial, however, Christopher
testified that he had changed his mind after reviewing the plan further and felt he should have
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joint legal custody. The trial court determined that it was in Michael’s best interests for the
parties to have joint legal custody, which Brittany argues was an abuse of discretion.
The Parenting Act defines “[j]oint legal custody” as “mutual authority and responsibility
of the parents for making mutual fundamental decisions regarding the child’s welfare, including
choices regarding education and health.” Neb. Rev. Stat. § 43-2922(11) (Cum. Supp. 2012). The
Parenting Act mandates that a parenting plan “shall serve the best interests of the child,” Neb.
Rev. Stat. § 43-2929(1) (Cum. Supp. 2012), and the best interests of the child requires that the
court “determine whether it is in the best interests of the child for parents to maintain continued
communications with each other and to make joint decisions in performing parenting functions
as are necessary for the care and healthy development of the child.” Neb. Rev. Stat. § 43-2923(4)
(Cum. Supp. 2012). Communication is an essential requirement for joint custody to be
successful. Klimek v. Klimek, 18 Neb. Ct. App. 82, 775 N.W.2d 444 (2009). See, also, Kamal v.
Imroz, 277 Neb. 116, 759 N.W.2d 914 (2009) (trial court’s decision that joint legal custody was
not in child’s best interests because parents were unable to communicate face-to-face and
distrusted one another was consistent with statutory language requiring court to determine
whether it is in best interests of child for parents to maintain continued communication).
The evidence at trial reflects that Christopher and Brittany communicate well with one
another regarding Michael’s welfare. Brittany testified that she and Christopher have
“businesslike” conversations on the telephone and that she always consults Christopher and tells
him when she needs or wants to change something about Michael’s care. Christopher testified he
has been communicating with Brittany for the past 2 years about Michael and has “no doubt” he
could work with Brittany for Michael’s best interests. The parties were able to agree together that
Michael should be raised in the Catholic faith. Brittany opposes joint legal custody, not because
she has concerns she and Christopher will not be able to make joint decisions, but, rather,
because it would be easier for her to make an executive decision, since Christopher cannot be
physically present in Nebraska. Brittany testified that all of Christopher’s knowledge about
school systems, Michael’s pediatrician, and daycare providers comes from her and that she
believes Christopher will not always have the time to “have a two-hour conversation about what
the pediatrician thinks.” While it may be more convenient for Brittany to have sole legal custody,
we cannot say that the trial court abused its discretion in awarding joint legal custody, given the
parties’ previously demonstrated abilities to communicate and agree on fundamental decisions
regarding Michael’s welfare. Parents who are able to reasonably communicate and decide such
matters related to their child are to be applauded and encouraged to maintain that level of
communication and cooperation throughout the raising of their minor child. So while it may take
more effort for these parents to engage each other in this manner, the joint involvement should
result in a healthier, happier environment for Michael. And while Brittany has the final say in the
event of impasse, the record suggests that it should be the rare instance when this final authority
would need to be asserted. Again, this speaks well of both parents. We therefore affirm the
district court’s decision to award the parties joint legal custody of Michael.
Award of Extended Parenting Time.
Brittany contends that the trial court abused its discretion by awarding Christopher 2
months of extended parenting time with Michael in Virginia beginning in 2014. We agree that on
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the record before us, it is not in Michael’s best interests at this time to spend 2 months in
Virginia with Christopher, who “by his own choice, is a virtual stranger to his son.” Brief for
appellant at 17. Although the parenting plan does not indicate that these 2 months shall be
exercised as 60 consecutive days, it could arguably be read to allow that, especially since it does
provide that once Michael starts school, the extended parenting time shall take place from shortly
after the conclusion of the school year until 1 week prior to the commencement of the next
school year. Further, Christopher testified that he “would like just three consecutive months with
[Michael],” and the extended parenting time provision used (as modified) by the trial court was
drafted by Christopher. We also note that the trial court provided for a one-half abatement of
child support when Michael exercises the 60 days, which indicates an intent that this parenting
time is to be exercised in lengthier increments to support such an abatement or adjustment under
the guidelines.
Notable in our de novo review is that the trial court’s parenting plan provided for no
overnight parenting time for Christopher with Michael apparently until the commencement of the
2 months of extended parenting time in Virginia in 2014, nor did it require any minimum amount
of time be spent between Christopher and Michael in Nebraska until such extended parenting
time would commence. The “regular parenting time” provided in the court’s parenting plan
required that Brittany be present for any parenting time exercised by Christopher, presumably
until 2014 when the extended parenting time in Virginia would commence. Accordingly,
Christopher would not have an opportunity to exercise independent parenting time with Michael
in Nebraska to facilitate the development of a relationship with his son without Brittany present,
nor would he have an opportunity to try overnight parenting before taking Michael away on
extended stays in Virginia. The evidence established that Christopher had not exercised
parenting time with Michael since March 2012, nor did he attempt to have parenting time when
he was in Nebraska for trial in February 2013. Therefore, there had been no physical contact
between Christopher and Michael for almost 1 year, yet there was no provision in the trial
court’s parenting plan to address this lack of contact between father and son. The development of
a relationship with his father would be important to Michael’s sense of security in traveling away
from his mother, his primary custodial parent, for any extended period of time. As discussed
further below, we conclude that the trial court abused its discretion by not incorporating a
transitional or graduated parenting plan before awarding 2 months of parenting time to Michael,
which arguably could be taken in 60 consecutive days in Virginia.
In determining custody and parenting arrangements under the Parenting Act, the court
shall consider the best interests of the minor child, including in relevant part:
(1) A parenting arrangement and parenting plan . . . which provides for a child’s
safety, emotional growth, health, stability, and physical care and regular and continuous
school attendance and progress for school-age children;
....
(3) That the child’s families and those serving in parenting roles remain
appropriately active and involved in parenting with safe, appropriate, continuing quality
contact between children and their families when they have shown the ability to act in the
best interests of the child and have shared in the responsibilities of raising the child;
....
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. . . and
(6) . . . .
(a) The relationship of the minor child to each parent prior to the commencement
of the action or any subsequent hearing;
....
(c) The general health, welfare, and social behavior of the minor child.
§ 43-2923. In the development of a parenting plan, consideration shall be given to the child’s
age, the child’s developmental needs, and the child’s perspective, as well as consideration of
enhancing healthy relationships between the child and each party. § 43-2929(5).
In considering the factors above, particularly Michael’s age (age 2 at the time of trial) and
the lack of relationship between Christopher and Michael at this time as established in the record
before us, we conclude that it is not in Michael’s best interests for Christopher to exercise up to
60 consecutive days of parenting time in Virginia without first incorporating a transitional or
graduated parenting schedule. The record reflects that Christopher has only physically seen
Michael on three different occasions during Michael’s life, with the last visit occurring in March
2012 when Michael was just over 1 year old. Even with such few opportunities to spend time
with Michael, Christopher still prioritized other aspects of his life before his son. For example,
when Brittany took Michael to visit Christopher in Virginia for 4 weeks, Christopher admittedly
did not see Michael at all for 2 of the 4 weeks, explaining, “In one fell swoop, I had a son,
moved out of my parents’ house, and engaged in another relationship, and I was just trying to
balance both my life and everything in Virginia with seeing my son.” Christopher recognized he
“let my obligations . . . as a father fall to the wayside for those two weeks.”
Christopher’s travel schedule to Nebraska to spend time with Michael falls quite a bit
short when compared with his travel schedule to Nebraska when he and Brittany were dating.
For dating purposes, Christopher traveled to Nebraska every 12 weeks. Subsequent to Michael’s
birth, Christopher has only returned to Nebraska to see Michael on one other occasion in March
2012. Additionally, although he also returned to Nebraska for trial in January 2013, and despite
knowing about the date of trial for several months, Christopher purchased his plane ticket the
same day he left Virginia, with a scheduled return the day after trial--this left him with no time to
see Michael. Christopher’s employment and income were not factors in the reduced travel to
Nebraska, since neither have changed since Michael’s birth; rather, “the only reasonable
explanation” he had for not maintaining his previous every-12-week travel schedule was that he
was “trying to maintain a home” and the police department was short-manned so “leave was
getting denied.” There is no evidence that Brittany has interfered with Christopher’s parenting
time. Instead, Brittany testified that she is “disappointed” Christopher has not come to Nebraska
to see Michael more than once since his birth. Brittany testified she would welcome Christopher
“any time” if he wanted to come to Nebraska more frequently.
Besides physical parenting time, the parties use Skype so that Christopher can see and
interact with Michael using the Internet. Although Christopher could exercise up to 4 hours of
Skype under the mediated parenting plan, and up to 8 hours under the court’s parenting plan, he
has never exercised more than 2 hours in any given month, with as many as 4 months between
Skype sessions. Christopher explained his Skype schedule has been limited because he has been
working as much extra duty as possible, and the house he moved into does not have Internet
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service providers in the area. Christopher testified that those factors combined with his sleep
schedule, trying to keep himself fed, and making sure he had a uniform and serviceable weapon,
caused him to “just [run] out of time many, many days.” Christopher also does not use the
telephone to communicate with Michael. Again, there is no evidence that Brittany has interfered
with Christopher’s Skype visitation or telephone communication, testifying she would let
Christopher Skype with Michael every day if he wanted, and has asked Christopher many times
to call.
The record does not reflect that Christopher has ever taken care of Michael alone on an
overnight basis, and his plans for how to care for Michael during his 2 months of extended
parenting time hinged on his belief that he would be in the fire academy and his ill mother, who
lives an hour away, could babysit Michael. However, it appears from our record that his transfer
to the fire department did not occur. Christopher did not testify as to how he could care for
Michael for up to 60 consecutive days while employed at his current position as a police officer
where he works 4 p.m. to 12:30 a.m., especially given his testimony that he often runs out of
time to exercise even Skype visitation with his current work schedule.
We recognize that parenting time determinations are matters initially entrusted to the
discretion of the trial court. See Hill v. Hill, 20 Neb. Ct. App. 528, 827 N.W.2d 304 (2013).
However, we agree with Brittany that “[t]o go from zero to 100 as a parent to Michael” is not in
Michael’s best interests based on the record before us. Brief for appellant at 23. Given Michael’s
young age and the lack of parenting time previously exercised by Christopher, Brittany’s
suggestion that the trial court set up a gradual schedule to “make Michael comfortable spending
time away from his mother in his father’s care; and to ensure that Christopher has the ability to
provide the proper parental care to his son” would better serve the objectives of the Parenting
Act. To take a now 3-year-old child from his primary parent and out of the only home he has
known since birth and send him away from that environment for up to 60 consecutive days with
a person, albeit his biological father, with whom the child has had no real opportunity to build a
relationship of trust, is not in that child’s best interests. Accordingly, we reverse the award in the
district court’s decree of 2 months of extended parenting time commencing in 2014, and remand
the cause with directions for the district court to establish a graduated schedule of increased
parenting time for Christopher as set forth herein.
Given that the current parenting plan has not provided for any overnights for Christopher
with Michael, the graduated schedule should include at a minimum that Christopher exercise
Thursday to Sunday overnight parenting time (or 3 or more other consecutive nights as the
parties may otherwise agree) with Michael in Nebraska on at least three different occasions
before taking Michael to Virginia for any initial extended parenting time there. Once the
Nebraska overnight parenting periods have been successfully exercised, then at least the first two
initial extended parenting periods in Virginia shall be for no longer than 1 week at a time unless
both parties agree that Michael is adjusting well and are agreeable to extending that parenting
time. Each extended parenting period in Virginia thereafter may be increased by up to 1
additional week of parenting time at a time (or more if the parties agree) until reaching the 2
months of extended parenting time as set forth in the trial court’s parenting plan.
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Deviation From Child Support Guidelines.
The child support worksheet attached to the decree reflects that Christopher’s child
support obligation would be $588 per month pursuant to the Nebraska Child Support Guidelines.
The trial court found that “by reason of the need of [Christopher] to travel for purposes of
visitation, and the expense thereof, the Court finds a deviation is necessary” and reduced
Christopher’s monthly obligation from $588 to $450, for a yearly reduction of $1,656.
In general, child support payments should be set according to the Nebraska Child Support
Guidelines. Pearson v. Pearson, 285 Neb. 686, 828 N.W.2d 760 (2013). The guidelines “shall be
applied as a rebuttable presumption,” and “[a]ll 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.” Neb. Ct. R. § 4-203 (rev. 2011).
Under the guidelines, a deviation in the amount of child support is allowed whenever the
application of the guidelines in an individual case would be unjust or inappropriate. Pearson,
supra. The guidelines specifically address adjustments in child support related to visitation,
providing, “Any documented substantial and reasonable long-distance transportation costs
directly associated with visitation or parenting time may be considered by the court and, if
appropriate, allowed as a deviation from the guidelines.” Neb. Ct. R. § 4-210 (rev. 2011). Only
reasonable transportation expenses may reduce or abate a child support obligation. Pearson,
supra. As with other visitation determinations, the matter of travel expenses associated with
visitation is initially entrusted to the discretion of the trial court. Id. Deviations from the
guidelines must take into consideration the best interests of the child or children. Id.
Brittany argues that the court abused its discretion in deviating from the guidelines
because Christopher did not offer any evidence to document his reasonable travel expenses.
However, Christopher did testify that his flight to Nebraska to attend trial--purchased the same
day that he departed from Virginia--cost him $989. When asked whether that number was
illustrative of what it will cost Christopher to transport his son to and from Nebraska,
Christopher replied, “Vaguely.” He also asked the court to consider ordering him to pay $400 a
month so he could save money for plane tickets, lodging, and a rental car. Although no
documents were submitted in support of those actual costs, we find the trial court did not abuse
its discretion in considering Christopher’s testimony regarding travel costs, even if the cost of a
plane ticket purchased the same day may not be reflective of tickets purchased well in advance of
actual travel. There is no question that Christopher will have to spend money on travel to
exercise parenting time with his son, and the reduction granted by the trial court was reasonable
considering travel costs will be incurred by Christopher on multiple occasions through the year.
It is in Michael’s best interests to have his father engaged in his life, and the trial court’s decision
to help facilitate that by deviating from the guidelines for travel costs was not an abuse of
discretion, especially since there was no evidence to suggest that the reduced child support
would adversely impact Michael’s best interests.
Retroactive Child Support and Childcare Costs.
Brittany contends the trial court erred in failing to award her child support and childcare
costs retroactive to the date of Michael’s birth. Brittany acknowledges that Christopher paid her
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$11,300 voluntarily between February 2011 and January 2013, but sought an additional $4,912
in retroactive child support and $2,527.74 in childcare costs.
The law is firmly established that “children born out of wedlock are entitled to the same
duty of support as children born in wedlock. . . . A child born out of wedlock is entitled to child
support retroactively to the date of birth, because it is upon the child’s birth that the parental duty
of support commences.” Henke v. Guerrero, 13 Neb. Ct. App. 337, 350, 692 N.W.2d 762, 776
(2005). It is “‘entirely appropriate to use the guidelines in determining the amount of retroactive
support to award a child born out of wedlock,’” and the guidelines are “‘presumptively
applicable in the setting of child support in a paternity action.’” Weaver v. Compton, 8 Neb. Ct. App.
961, 966, 605 N.W.2d 478, 483 (2000) (quoting Sylvis v. Walling, 248 Neb. 168, 532 N.W.2d
312 (1995)). In a paternity case, “Clearly, retroactivity is the law; therefore, the question boils
down to whether a proper amount was awarded.” Lawson v. Pass, 10 Neb. Ct. App. 510, 518, 633
N.W.2d 129, 136 (2001).
In Lawson, supra, we vacated a trial court’s order, and remanded the cause, concerning
retroactive support in a paternity case because there were no worksheets to support the amount
awarded by the court and because the monthly amount established by the court for retroactive
support was arbitrary without any supporting findings of fact. The parties had stipulated that the
father’s prospective child support obligation should be $295, but left the issue of retroactive
support for the court to decide. The trial court used $295 per month retroactively for the father’s
support obligation, but there was
no finding that this was done because of [a] stipulation, because that was the right amount
calculated under the guidelines using actual earnings, or because it was based on earning
capacity. In short, we do not know, although the trial court should tell us, why it used
$295 per month for the retroactive support.
Id. at 518, 633 N.W.2d at 137. We concluded, “On remand, the trial court should complete the
income and support calculations worksheet required by the guidelines to determine [the father’s]
retroactive child support obligations and attach it to its new judgment.” Id. at 523, 633 N.W.2d at
140. We also directed the parties to “endeavor to create a complete record by supplying their
completed worksheets.” Id. One of the obvious purposes of the worksheet requirement is so that
the appellate courts do not have to speculate about the trial court’s conclusions. Stewart v.
Stewart, 9 Neb. Ct. App. 431, 613 N.W.2d 486 (2000). “[T]rial courts must show the appellate
courts, and the parties, that they have ‘done the math.’” Lawson, 10 Neb. Ct. App. at 521, 633
N.W.2d at 139 (quoting Stewart, supra).
Christopher voluntarily paid Brittany a total of $11,300 in support between Michael’s
birth and trial, as no temporary order for support was entered. The decree in the instant case does
not contain any specific findings regarding retroactive support even though it was requested; the
decree simply provides that Christopher’s child support obligation shall commence April 1,
2013, and that the party incurring childcare costs must present an invoice for those expenses
within 15 days of incurring the costs, and the responsible party must pay within 15 days. The
final provision of the decree states, “Any other or further request for relief made by either party,
which is not specifically granted in this Decree of Paternity, is denied.” There are no child
support worksheets attached to the decree concerning retroactive support. We are therefore left to
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speculate as to how the trial court must have concluded that $11,300 (the total amount
Christopher had paid in support) was a sufficient amount of retroactive support for Michael from
February 2011 (the first month after his birth) through March 2013 (the month prior to the entry
of the decree). Taking the $11,300 and dividing by 26 months (February 2011 through March
2013) equates to an average of $434.62 per month, for both child support and childcare. As
discussed next, this falls short of the amount owed under the guidelines just for child support.
Unlike the parties in Lawson, supra, Brittany did supply two child support worksheets for
the court to utilize in awarding retroactive support. Brittany’s first worksheet was based on the
period in 2011 when she was a full-time student, using Christopher’s income from his 2011 W-2,
and reflects that his obligation would have been $693 per month from February 1, 2011, through
September 2012, just for child support. Brittany’s second calculation, for October 2012 forward,
was based on Brittany’s income as a registered nurse and Christopher’s year-to-date income as of
July 13, 2012, reflecting Christopher’s obligation would have been $588 per month (this was the
worksheet utilized by the court in establishing Christopher’s obligation from April 2013
forward). We can see that in both timeframes, the average of $434.62 per month voluntarily paid
by Christopher was less than the child support guidelines would have required, and also note that
this amount does not factor in childcare costs. Pursuant to Brittany’s worksheets, therefore,
Christopher should have paid her a total of $16,212 in child support between Christopher’s birth
and trial. Brittany also offered into evidence copies of all the checks she paid for daycare while
she was in nursing school and working as a nurse, reflecting she bore the entire cost of childcare
in the amount of $4,681 between September 2011 and December 2012. After subtracting the
$11,300 Christopher had already paid, Brittany requested that he be ordered to pay an additional
$4,912 in retroactive child support (through January 2013) and childcare costs of $2,527.74 (54
percent of the total costs). Christopher did not submit any child support worksheets to the court
to guide its determinations regarding child support.
In determining the amount of a child support award, this court has consistently held that
the trial court must consider the status, character, and situation of the parties and attendant
circumstances, including the financial condition of the parties and the estimated cost of support
of the children. Lawson v. Pass, 10 Neb. Ct. App. 510, 633 N.W.2d 129 (2001). And, in discussing
the lump-sum payment of child support which necessarily results from an order of retroactive
support, “‘the ability to pay is a paramount factor.’” Henke v. Guerrero, 13 Neb. Ct. App. 337,
348-49, 692 N.W.2d 762, 776 (2005) (quoting Cooper v. Cooper, 8 Neb. Ct. App. 532, 598 N.W.2d
474 (1999)). In the absence of a showing of bad faith, it is an abuse of discretion for a court to
award retroactive child support when the evidence shows the obligated parent does not have the
ability to pay the retroactive support and still meet current obligations. Henke, supra. In a
paternity case, the father’s inability to pay retroactive support means that after assessing the
equities of the case, the court can deviate from the child support guidelines in setting retroactive
support, and because it is an equity matter, the court can also order a payment plan for the
retroactive support. Id.
Presumably, the trial court determined that Christopher did not have the ability to pay
retroactive child support or childcare costs beyond the $11,300 he had already paid. Although
Christopher offered no evidence of his monthly expenses or other obligations, he did testify he
had some financial hardships because of an increase in food prices, the rate at which he was
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unable to find extra duty, and a new car payment. However, without the trial court’s having
made any specific findings or attaching its own worksheet to the decree, we can only speculate
as to the court’s intentions. On remand, the trial court should complete the income and support
calculations worksheet required by the guidelines to determine Christopher’s retroactive support
obligations from February 2011 through March 2013 and attach it to its new judgment. See
Lawson, supra. After assessing the equities of the case and upon making specific findings, the
court can then deviate from the child support guidelines in setting retroactive support, including
childcare, if it finds that Christopher does not have the ability to pay retroactive support as
otherwise required by the evidence. And because it is an equity matter, the court can also order a
payment plan for the retroactive support, if applicable. See Henke, supra.
CONCLUSION
We conclude the trial court did not abuse its discretion in awarding the parties joint legal
custody of Michael, and affirm that portion of the decree. We reverse, and remand with
directions the court’s determination regarding Christopher’s extended parenting time in Virginia.
We affirm the order with regard to Christopher’s child support (including deviation) and
childcare obligations commencing from entry of the decree; however, we reverse, and remand
with directions for further proceedings the issue of retroactive child support and childcare costs.
AFFIRMED IN PART, AND IN PART REVERSED
AND REMANDED WITH DIRECTIONS.
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