Essink v. Essink

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
ESSINK V. ESSINK
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).
TIFFANY A. ESSINK, NOW KNOWN AS TIFFANY A. BOLISH, APPELLEE,
V.
ETHAN D. ESSINK, APPELLANT.
Filed August 2, 2022. No. A-21-830.
Appeal from the District Court for Lancaster County: SUSAN I. STRONG, Judge. Affirmed.
Laura A. Lowe, P.C., for appellant.
No appearance for appellee.
PIRTLE, Chief Judge, and BISHOP and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Ethan D. Essink appeals from the Lancaster County District Court’s order on his complaint
to modify child custody and his application for an order to show cause based on the failure of
Tiffany A. Essink, now known as Tiffany A. Bolish, to abide by the terms of the parties’ parenting
plan. For the reasons stated herein, we affirm.
II. STATEMENT OF FACTS
Ethan and Tiffany were married in 2012 and had one child, Dalton James Dean Essink,
who was born in 2013. The parties’ marriage was dissolved by dissolution decree entered by the
Lancaster County District Court in December 2014. The court’s order, which was entered pursuant
to a stipulated agreement, awarded the parties joint legal custody of Dalton with primary physical
custody awarded to Tiffany. Ethan was granted parenting time starting at 4:30 p.m. every other
Tuesday until the following Monday morning. Additionally, Ethan was ordered to pay $130 in
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monthly child support and was granted a $1,143 judgment against Tiffany for daycare expenses.
Under the terms of the parenting plan, the parties were required to, among other things, include
the other parent in decision-making, cooperate, and refrain from disparaging each other. The plan
provided in part:
[Tiffany] and [Ethan] shall both share, to a reasonable and practical extent, the
rights and decision-making responsibilities of raising the minor child. [Tiffany] and
[Ethan] both should remain active and involved in parenting the minor child. In order to
accomplish this, [Tiffany] and [Ethan] will inform the other, reasonably in advance and in
appropriate detail, and then fully consult with each other on all issues and all phases of the
minor child’s health, education, extracurricular, social and physical development and
religious upbringing regarding events in the life of a child which are not decisions of the
moment and have longer-term consequences.
....
Recognizing the importance that mutual participation and cooperation play in
nurturing the child in a stable, loving environment, the parties shall, in an effort to foster
this environment, notify the other at a meaningful time in advance of any decision
regarding enrollment in school, the commencement of participation in religious activities
and in advance of the commencement of health-care professional-parent relationship with
the child, in order to learn both parties’ wishes in these matters. The parties shall freely
discuss these three areas with one another, in an effort to reach a consensus on these
issues. . . .
The child’s best interests require the utmost cooperation between the parties. To
this end, neither party shall disparage the other or in any way denigrate the other party, in
any activity or communication involving their child.
In December 2020, Ethan filed a complaint for modification of the dissolution decree
requesting sole legal and physical custody of Dalton. In his complaint, Ethan alleged that a
substantial and material change in circumstances had occurred which affected Dalton’s best
interests including that Tiffany had arranged for therapeutic services for Dalton without first
consulting Ethan, refused to keep Ethan apprised of Dalton’s therapy appointments, limited
Ethan’s access to Dalton’s therapist, and refused to provide Ethan with medications prescribed for
Dalton; that Tiffany had “repeatedly disparaged and denigrated [Ethan] in public communications
and in communications involving [Dalton]”; that Tiffany had “unreasonably refused to cooperate
with [Ethan] in allowing [Ethan’s] parents to facilitate the parenting time transitions, while
demanding her representatives be allowed to facilitate transitions on her behalf which has created
conflict in the presence of the minor child”; that Tiffany has unstable housing and has moved
numerous times since the entry of the dissolution decree; that Tiffany is involved in a relationship
in which Dalton has been subjected to inappropriate discipline; that Tiffany failed to provide a safe
and stable home for Dalton; and that Dalton wishes to spend more time with Ethan. Ethan further
requested that the court review and modify child support.
On the same date, Ethan also filed an application for an order to show cause why Tiffany
should not be held in contempt for her willful violation of the dissolution decree and parenting
plan. Ethan asserted that Tiffany willfully violated the provisions of the parenting plan by, inter
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alia, failing to make any payments on the $1,143 judgment against her for daycare expenses. The
court entered an order to show cause which was heard at the same time as the modification hearing
in August 2021.
Evidence at the hearing established that, after operating under the parenting plan without
issue for about two years, the parties began having disagreements over pick-up times, locations,
and individuals who were permitted to pick up Dalton from school. Due to the location of Dalton’s
elementary school, the parties relied on family and friends to help facilitate school pick up.
Additionally, Dalton was diagnosed with AD/HD and was placed on medication. The parties also
began having difficulty with communicating important school and medical concerns and ensuring
that each parent had access to Dalton’s medications and other items.
Tiffany determined that it was best to keep Dalton in the same school since they were
familiar with him and his behaviors. However, Ethan stated that he was unable to get information
from Tiffany and the school did not contact him when there was an issue. After contacting the
school, Ethan learned that he was not listed as a contact, but rather Tiffany’s fiancé and father were
the other contacts listed. Ethan also learned that Tiffany arranged for Dalton to begin seeing a
therapist without discussing it with him first and refused to provide Ethan with the therapist’s
contact information or to include Ethan in the therapy sessions so both parties could address
Dalton’s behavioral needs. Ethan also asserted that Tiffany changed Dalton’s primary doctor
without discussing the change with Ethan first. Although Dalton was prescribed daily medications,
the parties were unable to cooperate in order to ensure Dalton took his medication. Ethan testified
that Tiffany failed to ensure that Dalton had his medications with him during Ethan’s parenting
time. He asserts that this led to Dalton’s doctor assisting the parties in reach an agreement with the
school for the school to provide the medications each morning. However, despite the agreement,
the parties continued to have difficulties as the medication was not provided to the school on
occasions. In addition to the medication, Ethan indicated that Tiffany would not send Dalton’s
school Chromebook during Ethan’s parenting time which Dalton needed to complete homework,
making it difficult for Ethan to continue to work with Dalton on his math and reading.
The parties contacted child protective services (CPS) on each other on multiple occasions.
Ethan testified that he reported concerns relating to Tiffany’s disciplinary measures in her home.
He asserts that Tiffany and her fiancée required Dalton to kneel on the hard floor for a long period
of time which left marks on his skin and caused Dalton a lot of pain. Further, Ethan indicated that
he has called CPS as it related to Tiffany and her fiancée’s care of Dalton because he believed
Tiffany’s fiancée hit Dalton repeatedly in the head. Tiffany likewise expressed concerns related to
Ethan’s parenting and called CPS on Ethan on numerous occasions. Ethan admits that he was
previously involved with CPS after his prior roommate’s daughter inappropriately touched Dalton.
However, he asserted that he reported the issue to Tiffany and no further CPS action was taken
after the roommate and the child left the home. The parties both indicated that no additional CPS
reports have been substantiated.
On September 16, 2021, the district court overruled Ethan’s complaint to modify to the
extent that Ethan sought legal and physical custody and continued joint legal custody but provided
Tiffany with final decision-making as to Dalton’s health, education, and religious upbringing. The
court further continued physical custody with Tiffany subject to Ethan’s parenting time but
adjusted the parenting time schedule. Specifically, the court found:
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Due to the concerns stated above, the Court finds it is in the best interest of the child
that the parenting plan be modified to reduce [Ethan’s] parenting time to a 10/4 schedule.
[Ethan] has moved out of town and currently lives in Bennett with his parents, forty-five
minutes away from the child’s school. Should [Ethan] have difficulty getting Dalton to and
from school, he may be assisted by one or both of his parents, as necessary. The Court also
finds it is in the best interest of the child that the parenting plan be modified to contain a
safety provision prohibiting [Ethan] from consuming alcohol and prohibiting both parents
from consuming any controlled substances during parenting time with the child. The parties
shall communicate exclusively through the use of talkingparents.com. The parenting plan
should also be adjusted to help reduce the contact between the parties and ensure that both
parties can transfer the child with the help of family members or significant others when
needed.
The parties are to pick up the child primarily from his school or daycare to begin
their parenting time and can designate up to three individuals who can transport the child
in the event they are unavailable. The Court finds that a decrease in transitions between
these two parties would be in everyone’s best interest and that the Modified Parenting Plan,
attached hereto, is fair, reasonable, in compliance with the Nebraska Parenting Act, and in
Dalton’s best interests. The parties are ordered to follow the same.
The court also increased Ethan’s child support obligation to $324 per month due to changes in the
parties’ incomes and the parenting time schedule. The court stated:
Evidence received at trial shows that the parties’ incomes have changed. [Tiffany]
is now a stay-at-home mom. [Ethan] testified that he is employed at $12.50 per hour. He
submitted child support calculations based on his monthly income and imputed a monthly
amount to [Tiffany] commensurate with her earning $10 per hour. Those calculations take
into account an order requiring him to pay $693 per month for two subsequent children.
The Court cannot allow a modification of child support based on a subsequent child support
order. Section 4-220 of the Child Support Guidelines state[s]: “An obligor shall not be
allowed a reduction in an existing support order solely because of the birth, adoption, or
acknowledgment of subsequent children of the obligor; however, a duty to provide regular
support for subsequent children may be raised as a defense to an action for an upward
modification to such existing support order.”
The Court notes that the original decree allowed for a significant reduction in child
support by using a joint calculation (which resulted in $130 per month) instead of a straight
child support calculation (which would have resulted in $411 per month) due to [Ethan]
having the child on an 8/6 basis. The Modified Parenting Plan now orders a 10/4 schedule
based on [Ethan’s] issues with drugs and alcohol, thus no reduction should be used. Based
on the income figures submitted by [Ethan], [his] child support obligation according to the
Child Support Guidelines should now be $324 per month. The Court notes that this is also
more in accord with [Ethan’s] obligation to his two children in the Sarpy County District
Court case.
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The court also vacated Ethan’s order to show cause based upon its determination that Ethan
did not prove by clear and convincing evidence that Tiffany had willfully violated the decree or
parenting plan. Ethan has timely appealed to this court.
III. ASSIGNMENTS OF ERROR
Ethan assigns that the district court erred in (1) failing to award him sole legal and physical
custody; (2) decreasing his parenting time; (3) increasing his child support obligation including
refusing to consider the subsequent child support order for his two other minor children and failing
to award him an abatement during the summer months when Dalton is in his physical care and
custody 50 percent of the time; and (4) failing to find Tiffany in willful contempt of court for her
failure to timely pay the judgment for childcare expenses.
IV. STANDARD OF REVIEW
Modification of a judgment or decree relating to child custody, visitation, or support is a
matter entrusted to the discretion of the trial court, whose order is reviewed by an appellate court
de novo on the record and will be affirmed absent an abuse of discretion. Keiser v. Keiser, 310
Neb. 345, 965 N.W.2d 786 (2021).
When evidence is in conflict, the appellate court considers and may give weight to the fact
that the trial court heard and observed the witnesses and accepted one version of the facts rather
than the other. Id.Interpretation of the Nebraska Child Support Guidelines presents a question of law,
regarding which an appellate court is obligated to reach a conclusion independent of the
determination reached by the court below. Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007).
In a civil contempt proceeding where a party seeks remedial relief for an alleged violation
of a court order, an appellate court employs a three-part standard of review in which (1) trial court’s
resolution of issues of law is reviewed de novo, (2) trial court’s factual findings are reviewed for
clear error, and (3) trial court’s determinations of whether a party is in contempt and of the sanction
to be imposed are reviewed for abuse of discretion. Becher v. Becher, 311 Neb. 1, 970 N.W.2d
472 (2022).
V. ANALYSIS
1. CUSTODY
Ethan first argues that the district court erred in failing to grant him sole legal and physical
custody of Dalton.
Nebraska courts have continuously applied a two-step process in modification proceedings
in that:
Ordinarily, custody of a minor child will not be modified unless there has been a
material change in circumstances showing either that the custodial parent is unfit or that
the best interests of the child require such action. We have described this showing as a
two-step process: First, the party seeking modification must show a material change in
circumstances, occurring after the entry of the previous custody order and affecting the best
interests of the child. Next, the party seeking modification must prove that changing the
child’s custody is in the child’s best interests.
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Jones v. Jones, 305 Neb. 615, 626-27, 941 N.W.2d 501, 510-11 (2020). A material change in
circumstances “is the occurrence of something which, had it been known to the marital dissolution
court at the time of the initial decree, would have persuaded the court to decree differently.”
Weaver v. Weaver, 308 Neb. 373, 391, 954 N.W.2d 619, 632 (2021). The finding of a material
change of circumstances is a prerequisite to a modification of a child custody award. Id.Further, in determining custody and parenting arrangements, a court shall consider the best
interests of the minor child, which shall include, but not be limited to, consideration of the
relationship of the minor child to each parent prior to the commencement of the action or any
subsequent hearing, the desires and wishes of the minor child, if of an age of comprehension but
regardless of chronological age, when such desires and wishes are based on sound reasoning, the
general health, welfare, and social behavior of the minor child, credible evidence of abuse inflicted
on any family or household member, and credible evidence of child abuse or neglect or domestic
intimate partner abuse. Neb. Rev. Stat. § 43-2923(6) (Reissue 2016); Wolter v. Fortuna, 27 Neb.
App. 166, 928 N.W.2d 416 (2019).
Here, in its order pertaining to Ethan’s request for a modification of child custody, the
district court stated:
The Court finds the relationship between the parties is troubling and that both parties bear
responsibility for the communication problems. [Ethan] has failed to show that [Tiffany]
is unfit as a parent and that it would be in the best interest of the child to change custody.
Thus, the Court cannot find that there has been a change in the material circumstances of
the parties which would warrant a change in custody.
Ethan urges that in looking at the best interests factors, it was an abuse of discretion to find that
there was no material change in circumstances affecting Dalton’s best interests and in finding that
Dalton’s best interests did not warrant a change in custody. We disagree.
From our review of the record, we find the parties lack of communication and cooperation
troubling. We have previously recognized that appellate review of joint legal custody issues has
often focused on the parties’ ability to communicate. See State ex rel. Maddox S. v. Matthew E.,
23 Neb. App. 500, 873 N.W.2d 208 (2016). However, appellate courts review custody decisions
for an abuse of discretion and may give weight to the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather than another. Id. In affording such
deference to the trial courts, appellate courts in some instances decline to reverse trial court
decisions where joint custody has been awarded or maintained even when the evidence
demonstrates a lack of communication or cooperation between parents. Id.In State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (2015), the
Nebraska Supreme Court affirmed the district court’s denial of a father’s complaint to modify
custody because the evidence adduced at the modification trial did not establish a material change
in circumstances since the entry of the decree warranting a change in custody. We see that case as
somewhat analogous to the case at bar in that it involved claims by the father of interference with
matters affecting parenting time, consultation on medical issues, issues with the parents’ ability to
communicate, and issues governing the mother’s disparagement of the father. In analyzing the
issues, the Nebraska Supreme Court stated:
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Upon our de novo review of the record in this case, we agree that the evidence adduced at
the modification trial did not establish a material change in circumstances since the entry
of the decree warranting a change in custody. At trial, both [the father] and [the mother]
presented conflicting evidence concerning their own parenting strengths and the
weaknesses of the other parent. Both parties showed that they are employed and that they
love and are able to care for Jakai. Regarding why he believed custody of Jakai should be
modified, [the father] presented evidence that [the mother] had interfered with his parenting
time on various occasions, and the record showed that she had earlier been held in contempt
for such interference. However, the record also showed, as noted by the district court, that
in the year prior to the modification trial, [the mother] had addressed this problem and
adhered to the parenting time schedule. In determining whether the custody of a minor
child should be changed, the evidence of the custodial parent’s behavior during the year or
so before the hearing on the motion to modify is of more significance than the behavior
prior to that time. Schrag v. Spear, 290 Neb. 98, 858 N.W.2d 865 (2015); State on behalf
of Dawn M. v. Jerrod M., 22 Neb. App. 835, 861 N.W.2d 755 (2015).
[The father] testified that [the mother] made disparaging remarks about him on
social media, and we agree with the district court that this is concerning. But the record did
not show that this disrespect was communicated to the child or affected him up to the point
of trial. The record shows that [the father] claimed that [the mother] did not adhere to [the
father’s] right of first refusal and failed to consult with him on decisions regarding Jakai’s
medical treatment and daycare. However, [the mother] presented contrary evidence
regarding [the father’s] failure to communicate effectively about decisions regarding Jakai
and that [the father] had not requested any additional parenting time with Jakai through his
right of first refusal.
State on behalf of Jakai C. v. Tiffany M., 292 Neb. at 86, 871 N.W.2d at 242-43.
Similarly, in this case, the parties presented conflicting testimony regarding the strengths
and weaknesses of the other parent and their rationales for individual instances of conduct. As to
conflicting reports of conduct that led the parties to make CPS reports, we note that no such reports
led to ongoing case management or court intervention. And even though communication and
cooperation deteriorated after the first two years following the entry of the dissolution decree, the
court noted that the parties’ refusal to allow family members help with transitioning Dalton was
reciprocal and we see efforts by Tiffany to address Ethan’s concerns such as working with Dalton’s
doctor to develop a plan to provide Dalton’s medication directly to the school so school staff could
assist in the administration of the medication. Although Ethan claimed that Tiffany made therapy
decisions without informing him, Tiffany indicated that she arranged for therapy with her and
Dalton so she could address Dalton’s behaviors in her home. The court also found Tiffany’s
reasoning for not sending the Chromebook to Ethan’s house credible and reasonable. Further,
although Ethan claimed that Tiffany’s housing situation is unstable, the court found that Tiffany
had resided in the same home for the past two years and that Ethan had moved a number of times
himself. As to Ethan’s claim that Tiffany disparaged him on her private Facebook account in direct
defiance of the court’s decree, we find this behavior reprehensible and caution her that such
behavior could lead to future court intervention. However, as in State on behalf of Jakai C. v.
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Tiffany M., 292 Neb. 68, 871 N.W.2d 230 (2015), based upon our review of the evidence adduced
at the modification hearing, we do not see that this disrespect was communicated to the child or
affected him up to the point of the modification hearing. As a result of these collective findings,
the court found that Ethan failed to show that Tiffany was unfit or that it would be in Dalton’s best
interests to change custody to Ethan.
Given the record in this case and given our standard of review and deference to the trial
court’s determinations with respect to the credibility of the witnesses, we cannot say that the court
abused its discretion in denying Ethan’s request to modify custody. Accordingly, this assignment
of error fails.
2. PARENTING TIME
Ethan next argues that the district court erred in modifying the parties’ parenting plan by
reducing his parenting time beyond what Tiffany requested in her responsive pleading; finding a
material change in circumstances because Ethan moved 45 minutes away from Dalton’s school
and because of Ethan’s issues with drugs and alcohol; and in finding that the reduction of his
parenting time was in Ethan’s best interests.
In order to modify a parenting plan, there must be a material change in circumstances that
affects the best interests of the child. Olander v. McPhillips, 28 Neb. App. 559, 947 N.W.2d 578(2020). Once the court determines that a material change in circumstances warrants a modification
of the parenting plan, a trial court has discretion to set a reasonable parenting time schedule. Wolter
v. Fortuna, 27 Neb. App. 166, 928 N.W.2d 416 (2019). The determination of reasonableness of a
parenting plan is to be made on a case-by-case basis. Id. Parenting time relates to continuing and
fostering the normal parental relationship of a noncustodial parent. Id. The best interests of the
children are the primary and paramount considerations in determining and modifying visitation
rights. Id. Generally, a reasonable visitation schedule is one that provides a satisfactory basis for
preserving and fostering a child’s relationship with the noncustodial parent. State ex rel.
Pathammavong v. Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004). The right of parenting
time is subject to continual review by the court, and a party may seek modification of a parenting
time order on the grounds that there has been a material change in circumstances. Olander v.
McPhillips, supra.
In response to Ethan’s motion to modify, Tiffany requested her own modification to the
prior decree in the form of a request to change the parenting plan. Although not specifically
articulated by the court, we read the court’s order as having found a material change in
circumstances occurred due to concerns urged by Tiffany in connection with her request to reduce
Ethan’s parenting time. In reducing Ethan’s parenting time, the court stated:
As stated by Tiffany’s attorney, “[Ethan’s] entire case is a matter of projection, where he
is guilty of all of the things he accuses [Tiffany] of doing.” Indeed, [Ethan] has only
succeeded in highlighting his shortcomings as a parent to Dalton, not to mention his other
three children, and his serious issues with drugs and alcohol.
....
Due to the concerns stated above, the Court finds it is in the best interest of the child
that the parenting plan be modified to reduce Defendant’s parenting time to a 10/4
schedule.
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The court further ordered that the 10/4 parenting time schedule was suspended during the summer
months and awarded the parties alternating weeks during that time.
Based on our de novo review of the record, we first find that the court did not err in finding
that Ethan’s behavior since the entry of the dissolution decree constituted a material change in
circumstances affecting Dalton’s best interests. In doing so, the court expressed grave concerns
associated with Ethan’s reported abuse of alcohol and drugs. In arguing that this behavior did not
constitute a material change, Ethan contends that the basis for those claims stems from the
testimony of his former girlfriend which the court should have found was not credible. But in
hearing the ex-girlfriend’s testimony governing the quantity of alcohol consumed by Ethan and
that it was she and not Ethan that cared for Dalton while they were dating, when considered with
Ethan’s own admission that he drinks daily and was recently charged with DUI, the court found
that the testimony was credible, and that Ethan’s behaviors posed additional risks to Dalton. In
reviewing this finding, which includes the district court’s finding that the testimony of Ethan’s
ex-girlfriend was credible, while giving weight to the fact that the court heard and observed the
witnesses and their testimony when the evidence is in conflict, we find that the court did not err in
finding that Ethan’s development of a serious issue with alcohol constituted a material change in
circumstances affecting Dalton’s best interests which warranted a change in the parties’ parenting
plan. This assignment of error fails.
3. CHILD SUPPORT
Ethan’s third assignment of error is that the district court erred in modifying his child
support obligation. Regarding this assigned error, Ethan asserts that the district court erred in
failing (a) to consider whether the facts warranted a deviation from the child support guidelines
based upon a subsequent child support order for his two other minor children and (b) to abate the
child support during the summer months when he has physical custody of Dalton 50 percent of the
time.
A party seeking to modify a child support order must show a material change in
circumstances that (1) occurred subsequent to the entry of the original decree or previous
modification and (2) was not contemplated when the decree was entered. Hodgen v. Hodgen, 30
Neb. App. 456, 970 N.W.2d 782 (2022). The party seeking the modification of child support has
the burden to produce sufficient proof that a material change of circumstances has occurred that
warrants a modification and that the best interests of the child are served thereby. Keiser v. Keiser,
310 Neb. 345, 965 N.W.2d 786 (2021). Among the factors to be considered in determining whether
a material change of circumstances has occurred warranting modification of a child support order
are changes in the financial position of the parent obligated to pay support, the needs of the children
for whom support is paid, good or bad faith motive of the obligated parent in sustaining a reduction
in income, and whether the change is temporary or permanent. Hodgen v. Hodgen, supra.
In general, child support payments should be set according to the Nebraska Child Support
Guidelines. State on behalf of Nathaniel R. v. Shane F., 30 Neb. App. 797, 973 N.W.2d 191 (2022).
Neb. Ct. R. § 4-203 provides in part:
The child support guidelines shall be applied as a rebuttable presumption. All orders for
child support obligations shall be established in accordance with the provisions of the
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guidelines unless the court finds that one or both parties have produced sufficient evidence
to rebut the presumption that the guidelines should be applied. All stipulated agreements
for child support must be reviewed against the guidelines and if a deviation exists and is
approved by the court, specific findings giving the reason for the deviation must be made.
Findings must state the amount of support that would have been required under the
guidelines and include a justification of why the order varies from the guidelines.
Deviations must take into consideration the best interests of the child. In the event of a
deviation, the reason for the deviation shall be contained in the findings portion of the
decree or order, or worksheet 5 should be completed by the court and filed in the court file.
Additionally, Neb. Ct. R. § 4-217 provides:
Application of the child support guidelines which would result in a variation by 10 percent
or more, but not less than $25, upward or downward, of the current child support obligation,
child care obligation, or health care obligation, due to financial circumstances which have
lasted 3 months and can reasonably be expected to last for an additional 6 months,
establishes a rebuttable presumption of a material change of circumstances.
In his complaint to modify custody, Ethan requested the court adjust his child support
obligation in conjunction with his request for sole legal and physical custody and, in her answer
and responsive pleading, Tiffany requested a modified parenting plan “together with such other
relief as the Court may deem just and equitable.” Having found that Ethan’s abuse of alcohol
constituted a material change requiring a modification of the parenting time schedule, the court
modified the parties’ 8/6 visitation schedule to a 10/4 visitation schedule. As a result of the
modification of the parenting time schedule and a change in the parties’ incomes, the court then
turned to the issue of adjusting Ethan’s child support obligation.
At the time that the dissolution decree was entered, Ethan earned $1,733 monthly. At the
time of the modification hearing, Ethan was earning $2,083 monthly and Tiffany was a
stay-at-home mother. After reviewing the Nebraska Child Support Guidelines, the court increased
Ethan’s support obligation from $130 to $324 per month. Ethan assigns error to the court’s failure
to deviate from the guidelines to award a deduction due to a subsequent child support obligation
for two children from another relationship and the court’s failure to abate his support obligation
for the summer months in which Ethan had nearly equal parenting time. We discuss these claims
of error independently.
(a) Credit for Subsequent Child Support
Ethan claims that the district court erred in failing to award him a child support credit for
child support ordered for two subsequently born children.
The Nebraska Child Support Guidelines provide, in certain circumstances, that “[s]ubject
to § 4-220, credit may be given for biological or adopted children for whom the obligor provides
regular support.” Neb. Ct. R. § 4-205(E) (rev. 2016). The limitation set forth in Neb. Ct. R. § 4-220
provides:
An obligor shall not be allowed a reduction in an existing support order solely
because of the birth, adoption, or acknowledgment of subsequent children of the obligor;
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however, a duty to provide regular support for subsequent children may be raised as a
defense to an action for an upward modification of such existing support order.
“Accordingly, the child support guidelines allow the obligor of an existing support award
a deduction for an obligation to support a subsequent child only when the obligee seeks an upward
modification of support.” Fetherkile v. Fetherkile, 299 Neb. 76, 95, 907 N.W.2d 275, 292 (2018).
Here, the court reviewed and modified child support based upon Ethan’s request set forth in his
complaint for modification. Because Tiffany, the obligee, did not seek an upward modification of
Ethan’s child support obligation, Ethan was not entitled to credit under § 4-205(E). This claim
fails.
(b) Abatement
Ethan also argues that the court erred in refusing to abate the support obligation during the
summer months when Dalton was with him 50 percent of the time.
The Nebraska Child Support Guidelines indicate that abatement of a child support
obligation may be appropriate during periods of extended parenting time under Neb. Ct. R.
§ 4-210.
It has long recognized that the child support guidelines offer flexibility and guidance, with
the understanding that not every child support scenario will fit neatly into the calculation structure.
Keiser v. Keiser, 310 Neb. 345, 965 N.W.2d 786 (2021). It is not suggested that an appropriate
child support and expense order may be found to be accurate to the penny by applying the
suggested guidelines. Id. Under the guidelines, a deviation is permissible whenever application of
the guidelines in an individual case would be unjust or inappropriate. Id.Specifically, the child support guidelines under Neb. Ct. R. § 4-210 carves out a specific
adjustment in the calculation as it relates to the amount of visitation or parenting time. It states:
Visitation or parenting time adjustments or direct cost sharing should be specified in the
support order. If child support is not calculated under § 4-212, an adjustment in child
support may be made at the discretion of the court when visitation or parenting time
substantially exceeds alternating weekends and holidays and 28 days or more in any 90-day
period. During visitation or parenting time periods of 28 days or more in any 90-day period,
support payments may be reduced by up to 80 percent. The amount of any reduction for
extended parenting time shall be specified in the court’s order and shall be presumed to
apply to the months designated in the order. 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.
Although the Guidelines provide that support payments may be reduced by up to 80 percent
when there are visitation or parenting time periods of 28 days or more in any 90-day period, that
determination is made using the trial court’s discretion. Although Ethan will incur additional
expenses during the summer months, Tiffany’s costs in maintaining Dalton’s permanent home
remain unchanged. Therefore, we cannot say that it was an abuse of discretion for the court to fail
to provide Ethan with an abatement of his child support obligation during the summer months.
This assignment fails.
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4. CONTEMPT
Ethan’s final assignment of error is that the district court abused its discretion in finding
that Tiffany was not in willful contempt of the dissolution decree due to her failure to timely pay
the judgment for daycare expenses.
In a civil contempt proceeding where a party seeks remedial relief for an alleged violation
of a court order, an appellate court employs a three-part standard of review in which (1) trial court’s
resolution of issues of law is reviewed de novo, (2) trial court’s factual findings are reviewed for
clear error, and (3) trial court’s determinations of whether a party is in contempt and of the sanction
to be imposed are reviewed for abuse of discretion. Becher v. Becher, 311 Neb. 1, 970 N.W.2d
472 (2022).
When a party to an action fails to comply with a court order made for the benefit of the
opposing party, such act is ordinarily a civil contempt, which requires willful disobedience as an
essential element; “willful” means the violation was committed intentionally, with knowledge that
the act violated the court order. Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012).
Outside of statutory procedures imposing a different standard or an evidentiary presumption, the
complainant must prove all elements of civil contempt by clear and convincing evidence. Becher
v. Becher, supra.In vacating the order to show cause against Tiffany, the district court stated that “there were
no facts proven at trial which would prove, by clear and convincing evidence, that [Tiffany] is in
contempt of the Court’s orders.” We agree. The evidence adduced at the hearing shows that,
pursuant to the decree, a judgment was entered against Tiffany for $1,143 for daycare expenses.
In February 2015, the parties informally agreed to an arrangement where the child support
payments would be reduced each month upon the court’s receipt of a notarized document signed
by Tiffany for an amount the parties agreed to each month. The parties complied with the informal
arrangement until June 2016, at which time, Ethan asserted that a total of $545 was receipted
towards his child support obligation. Ethan stated that attempting to get the receipts and turning
them into the court became too much of a hassle, and therefore they discontinued the arrangement.
Thereafter, no further reductions were made, and Tiffany did not make any direct payments to
Ethan. The court found that the evidence corroborated Ethan’s testimony and ordered Ethan file a
partial satisfaction of judgment for $545 and ordered Tiffany to pay the remaining amount of $598
plus 2.041 percent interest in payments to the clerk’s office. However, the court found that the
evidence did not support a finding of contempt. Because it appears that the parties were satisfying
the judgment albeit in an informal arrangement, and Ethan believed it to be too much of a hassle
and discontinued turning in the receipts, we find no error in the court’s determination that this did
not amount to a finding of willful or malicious disobedience of the decree. Therefore, this
assignment fails.
VI. CONCLUSION
Having considered and rejected Ethan’s assigned errors, we affirm the district court’s order
in its entirety.
AFFIRMED.
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