Kotas v. Barnett

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www.nebraska.gov/apps-courts-epub/
05/02/2023 08:05 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KOTAS V. BARNETT
Cite as 31 Neb. App. 799Eric C. Kotas, appellee, v. Jennifer
M. Barnett, formerly known as
Jennifer M. Kotas, appellant.
___ N.W.2d ___
Filed April 25, 2023. No. A-22-399.
1. Modification of Decree: Child Support: Appeal and Error.
Modification of child support payments is entrusted to the trial court’s
discretion, and although, on appeal, the issue is reviewed de novo on the
record, an appellate court will affirm the trial court’s decision absent an
abuse of discretion.
2. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court reappraises the evidence as presented by the record and
reaches its own independent conclusions on the matters at issue. When
evidence is in conflict, the appellate court considers 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.
3. Pleadings: Judgments. A determination as to whether a motion, how-
ever titled, should be deemed a motion to alter or amend a judgment
depends upon the contents of the motion, not its title.
4. Pleadings: Judgments: Time. In order to qualify for treatment as a
motion to alter or amend a judgment, a motion must be filed no later
than 10 days after the entry of judgment and must seek substantive
alteration of the judgment.
5. Modification of Decree: Child Support: Proof. A party seeking to
modify a child support order must show a material change in circum-
stances which (1) occurred subsequent to the entry of the original decree
or previous modification and (2) was not contemplated when the decree
was entered.
6. Modification of Decree: Child Support. Among the factors to be con-
sidered in determining whether a material change of circumstances has
occurred are changes in the financial position of the parent obligated
to pay support, the needs of the children for whom support is paid,
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Cite as 31 Neb. App. 799good or bad faith motive of the obligated parent in sustaining a reduc-
tion in income, and whether the change is temporary or permanent.
7. Modification of Decree: Child Support: Proof. The party seeking the
modification 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.
8. ____: ____: ____. Proof of a change of circumstances is not an optional
element to a modification proceeding. Rather, proof of a material change
of circumstances is the threshold inquiry in a proceeding on a complaint
to modify, because issues determined in the prior custody order are
deemed preclusive in the absence of new facts and circumstances.
9. Modification of Decree: Child Support. It is invariably concluded that
a reduction in child support is not warranted when an obligor parent’s
financial position diminishes due to his or her own voluntary wastage or
dissipation of his or her talents and assets and a reduction in child sup-
port would seriously impair the needs of the children.
10. ____: ____. An obligor parent’s reduction in income does not warrant
modification of child support where the reduction in income was attrib-
utable to the parent’s personal wishes and not the result of unfavorable
or adverse conditions in the economy, the parent’s health, or other cir-
cumstances affecting earning capacity.
Appeal from the District Court for Saline County: Ricky A.
Schreiner, Judge. Reversed.
Linsey A. Camplin, of McHenry, Haszard, Roth, Hupp,
Burkholder, Blomenberg & Camplin, P.C., for appellant.
David V. Chipman, of Monzόn, Guerra & Chipman, for
appellee.
Pirtle, Chief Judge, and Riedmann and Arterburn,
Judges.
Pirtle, Chief Judge.
INTRODUCTION
Jennifer M. Barnett (Jennifer), formerly known as Jennifer
M. Kotas, appeals from the order of the district court for Saline
County, which terminated the child support obligation of Eric
C. Kotas (Eric) and ordered the parties to equally divide all
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Cite as 31 Neb. App. 799reasonable and necessary direct child-related expenditures. For
the reasons that follow, we reverse.
BACKGROUND
Jennifer and Eric are the parents of one minor child, born in
2007. The parties married in 2007 and divorced in 2010, and
they have shared joint legal and physical custody of the minor
child since the divorce. The initial 2010 decree ordered Eric
to pay Jennifer a monthly child support obligation of $42.64.
In November 2012, the district court entered an order of mod-
ification increasing Eric’s monthly child support obligation to
$75. The 2012 modification also modified the parties’ parent-
ing plan so that parenting time alternates each week and runs
from Sunday to Sunday. In September 2016, in a separate
case, Eric was ordered to pay $250 per month in child sup-
port for two children from a different marriage. In December
2016, the district court entered an order of modification
increasing Eric’s monthly child support obligation in this case
to $194.
On July 7, 2020, Jennifer filed a complaint for modifica-
tion, requesting sole physical and legal custody of the minor
child, a recalculation of child support, and reallocation of
child-related expenses. With respect to child support, Jennifer
alleged only that she was “requesting a change in custody that
would increase [Eric’s] obligation by more than ten percent in
accordance with the Nebraska Child Support Guidelines.” On
July 24, Eric filed an answer in which he affirmatively alleged
that “there have been no significant and material changes in
the circumstances of the parties which warrant a modification
of the Decree in this matter.” In the alternative, “[i]f the Court
finds that there has been a significant and material change,”
Eric counterclaimed for sole legal and physical custody and for
an order “setting the financial obligations of the parties . . . as
determined by the custodial placement set.”
Trial on the complaint and counterclaim was held on January
10, 2022. Prior to trial, the parties came to an agreement
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Cite as 31 Neb. App. 799on all custody and parenting time matters. That agreement
was memorialized in a joint stipulation which narrowly modi-
fied the decree in that Eric was granted final decisionmak-
ing authority over education and Jennifer was granted final
decisionmaking authority over medical care. Additionally, the
parties agreed to split the cost of car insurance for the minor
child when he started driving, as the child was 14 years old
at the time and nearing driving age. The parties further stipu-
lated to provide the minor child with all prescribed medication
in a timely manner and to change the location and time of
parenting time transitions. Importantly, the joint stipulation
explicitly reaffirmed the physical custody and parenting time
arrangement as modified in the 2012 order of modification.
Pursuant to the joint stipulation, the only issues remaining
for trial were child support, child-related expenses, and attor-
ney fees. Jennifer and Eric were the only witnesses to testify
at trial.
Jennifer testified that she was not currently employed and
was last employed in 2016. Jennifer explained that she was
injured on the job in 2014 and was determined to be 100
percent disabled. Jennifer testified that she receives monthly
Social Security disability benefits which totaled $12,000 in
2019 and $12,192 in 2020. The parties generally agreed that
Jennifer’s earning capacity should be set according to her
monthly disability benefit of $1,016.05. Eric argued that an
additional $328 per month in dependent benefits should also
be included, which would bring Jennifer’s monthly earning
capacity to $1,344.05. Jennifer’s total monthly income was set
at $1,268.63 for purposes of the 2016 modification. Whether
or not the additional $328 is included, there was no indica-
tion that Jennifer’s earning capacity had materially changed
since the 2016 modification. The bulk of the evidence at trial
was devoted to alleged changes in Eric’s income and earn-
ing capacity.
Eric testified that he was presently engaged in the occu-
pation of farming. Eric explained that he was previously
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Cite as 31 Neb. App. 799employed full time as a farmhand for another farmer but left
that employment sometime in the “fall of 2016” to pursue
self-employment opportunities in construction and farming.
When asked about the reason for leaving that employment,
Eric responded only that “[i]t was not a good atmosphere.”
For some time thereafter, Eric engaged in both farming and
“handyman services” through his construction business. Eric
gradually shifted to exclusively farming “[o]ver the course of
the last few years” and had been farming full time for about a
year at the time of trial. Eric testified that his farming opera-
tion consists of growing corn, soybeans, wheat, and alfalfa, and
then selling those crops to “the local co-op.”
Eric testified that he stopped the construction business
sometime prior to 2020 because he “was too busy with the
farm.” Eric explained that his farm workload increased when
he began farming additional land owned by his parents in
2020. When asked how he was compensated for farming that
additional land, Eric initially testified that his parents paid him
in “gifts.” Furthermore, when asked how he is able to “make
ends meet” in light of the “several years of losses as a farmer,”
he simply responded, “Gifts from my parents.” Eric testified
he had been receiving these gifts from his parents for “[t]wo
to three years at least.” Eric later testified that “[m]ost of the
time” his parents actually compensated him with grain, but he
added that “they do give me gifts here and there to help out.”
With regard to his income, Eric offered his 2018, 2019, and
2020 tax returns.
Eric’s 2018 tax return shows $17,966 of income from
his construction business, a $14,167 loss from his farming
operation, and some other minor income, resulting in a total
income of $4,505. Eric’s 2019 tax return shows $5,771 of
income from his construction business and a $10,604 loss
from his farming operation, resulting in a net loss of $4,833.
Eric’s 2020 tax return shows no income from his construc-
tion business and a $9,140 loss from his farming opera-
tion. After carrying forward the $4,833 net loss from 2019,
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Cite as 31 Neb. App. 799Eric’s 2020 tax return reflects a net loss of $13,973. Eric’s
2020 tax return also included a 5-year tax history report
which demonstrates that Eric’s income consistently decreased
from 2016 to 2020. In addition to the figures discussed above,
that report reflects a total income of $38,825 in 2016 and
$4,699 in 2017.
Jennifer testified that she believed Eric’s bank statements
indicate an earning capacity much higher than the income
reflected in his tax returns. The bank statements Jennifer was
referring to were admitted into evidence without objection
as exhibit 37. Additionally, exhibit 42, which was admitted
without objection as an aid to the court, contains an outline of
deposits contained in exhibit 37.
Exhibit 37 consists of 158 pages of deposit, withdrawal,
and debit transactions for one or more of Eric’s bank accounts
from May 2018 to June 2021. Throughout the exhibit, there
are a number of unidentified deposits of various amounts rang-
ing from $18 to $25,729. Exhibit 42 isolates those unidentified
deposits and aggregates them by year. Exhibit 42 reflects a
total of $79,052 in unidentified deposits in 2019, as well as
a total of $109,963 in 2020. Based on exhibit 42, Jennifer
argued that Eric’s earning capacity was over $100,000 per
year, or $8,646 per month.
Eric admitted that at least some of the unidentified depos-
its listed in exhibit 42 reflected the cash “gifts” he had been
receiving from his parents. On redirect examination, Eric clari-
fied that while the payments from his parents are among the
deposits in exhibit 42, they do not account for the totality
of those deposits. For example, Eric testified that a $25,729
deposit in January 2020 was proceeds from selling grain, which
was already accounted for in Eric’s tax returns. Similarly,
Eric testified that a $10,343 deposit in April 2020 was pro-
ceeds from selling hay and that a $2,048 deposit in July 2020
was proceeds from selling cattle. Furthermore, Eric testified
that a $15,000 deposit in July 2020 was a loan from Eric’s
parents he allegedly paid back in January 2021 and that a
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Cite as 31 Neb. App. 799$9,000 deposit in May 2020 was proceeds from a truck, the
majority of which was promptly debited to cover the remaining
balance of a loan on that truck.
For purposes of child support, Eric proposed that the court
set his earning capacity at minimum wage because “[e]ven
though the farming times have been hard,” Eric believed that
he was capable of earning at least minimum wage. Under
Eric’s proposal, Jennifer owed a monthly child support obliga-
tion of $33, but Eric ultimately requested that neither party be
ordered to pay any child support. At the conclusion of Eric’s
testimony, the district court adjourned, and a journal entry from
January 10, 2022, indicates that the court considered the mat-
ter submitted.
The district court eventually entered an order of modifi-
cation on February 2, 2022. However, well prior to that, on
January 12, Jennifer filed a motion to reconsider “the issues
of child support and division of expenses as Ordered by this
Court on or about January 11, 2022.” Upon our initial review
of this case, it was unclear as to what order Jennifer’s motion
referred, because the appellate record did not contain any
order of the court from January 11. Thus, we issued an order
to show cause seeking clarification on the timeline of events.
In response thereto, counsel for Jennifer supplied an affidavit
explaining that the district court announced its findings in a let-
ter to the parties which was dated January 11, 2022. Attached
to counsel’s affidavit was a copy of that letter, which indeed
contained the court’s findings and directed counsel for Jennifer
to prepare a proposed order that reflected the contents of the
letter. Counsel further attested that she prepared and submitted
such a proposed order, which was later signed by the district
court and entered on February 2.
The February 2, 2022, order of modification terminated
Eric’s child support obligation and ordered the parties to
equally divide child-related expenses. The court further
ordered each party responsible for his or her own attorney
fees. Attached to that order was a child support calculation
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KOTAS V. BARNETT
Cite as 31 Neb. App. 799which set Jennifer’s monthly income at $1,029, and Eric’s
monthly income was set at minimum wage. That calculation
resulted in Eric’s owing a monthly obligation of $1, which
the court found to be “de minimus.” The court included
the following findings regarding the parties’ dispute over
Eric’s income:
2. [Eric] is a farmer. While he previously supple-
mented his income with carpentry work, he left behind
carpentry to focus on farming a year or two prior. . . .
His 2018, 2019 and 2020 income tax returns show tax-
able income of $0.00. . . . In 2016, [Eric] had income in
excess of $38,000.00 a year. The Court agrees that such
a decline raises suspicions, particularly as it coincides
with [Eric’s] obligation to pay child support for not just
one, but three children. [Eric] agrees that he should be
imputed income at the minimum wage, for a monthly
income of $1,560.00;
3. [Jennifer] argues that [Eric’s] bank accounts show
many four figure deposits, which, when averaged, yield
a monthly income well in excess of the minimum. She
has not, however, subjected these income amounts to
examination by a professional accountant, nor has she
subtracted expenses. The Court has reviewed numer-
ous farm tax returns during its tenure, and is aware
that farming often does not appear profitable from tax
returns. It also understands that an analysis of income
only will result in a distorted picture of a farm finan-
cial picture. . . . The bank accounts prove deposits, not
expenditures. They are misleading and are disregarded
by the Court.
On March 23, 2022, the district court held a hearing on
Jennifer’s January 12 motion to reconsider, and it entered on
order overruling that motion on May 11. We note, however,
that a different district court judge conducted the hearing on
March 23, as the trial judge had retired subsequent to entering
the order on February 2. Jennifer appealed.
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KOTAS V. BARNETT
Cite as 31 Neb. App. 799ASSIGNMENTS OF ERROR
Jennifer assigns that the district court erred in (1) finding
that Eric’s earning capacity should be reduced, (2) reduc-
ing Eric’s child support obligation, (3) ordering the parties
to equally divide child-related expenses, and (4) denying
Jennifer’s motion to reconsider.
STANDARD OF REVIEW
[1-3] Modification of child support payments is entrusted to
the trial court’s discretion, and although, on appeal, the issue
is reviewed de novo on the record, we will affirm the trial
court’s decision absent an abuse of discretion. Freeman v.
Groskopf, 286 Neb. 713, 838 N.W.2d 300 (2013). In a review
de novo on the record, an appellate court reappraises the
evidence as presented by the record and reaches its own
independent conclusions on the matters at issue. Id. When
evidence is in conflict, the appellate court considers 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.ANALYSIS
Jurisdiction.
Prior to addressing the merits of this case, we must briefly
address the parties’ dispute as to this court’s jurisdiction.
See Bryson L. v. Izabella L., 302 Neb. 145, 921 N.W.2d 829(2019). The notice of appeal in this case was filed on May
26, 2022, which was far more than 30 days after the district
court’s February 2 order of modification. On appeal, Eric sug-
gests that Jennifer’s January 12 motion to reconsider may not
have operated to toll the time for appeal, such that Jennifer’s
appeal was untimely. We disagree.
[3,4] A determination as to whether a motion, however
titled, should be deemed a motion to alter or amend a judg-
ment depends upon the contents of the motion, not its title.
McEwen v. Nebraska State College Sys., 303 Neb. 552, 931
N.W.2d 120 (2019). In order to qualify for treatment as a
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Cite as 31 Neb. App. 799motion to alter or amend a judgment, a motion must be filed
no later than 10 days after the entry of judgment and must
seek substantive alteration of the judgment. See id. A motion
to alter or amend a judgment filed after the announcement of
a verdict or decision but before the entry of judgment shall
be treated as filed after the entry of judgment and on the day
thereof. Neb. Rev. Stat. § 25-1329 (Reissue 2016).
In the present case, the court announced its decision in a
letter on January 11, 2022, and Jennifer’s motion was filed
the next day. Thus, Jennifer’s motion will be treated as filed
on February 2, when the order of modification was finally
entered. Moreover, Jennifer’s motion clearly seeks substantive
alteration of that judgment. Accordingly, Jennifer’s motion
operated to toll the time for appeal until after the district
court’s May 11 order overruling that motion. See Neb. Rev.
Stat. § 25-1912(3) (Cum. Supp. 2022). Thus, Jennifer’s May
26 notice of appeal was timely, and we have jurisdiction over
this appeal.
Modification of Child Support.
In her first and second assignments of error, Jennifer asserts
that the district court erred in modifying Eric’s child sup-
port obligation on the basis of a purported reduction in Eric’s
earning capacity. Jennifer argues that the reduction in income
reflected by Eric’s tax returns was a voluntary reduction in
income based on Eric’s personal wishes and did not demon-
strate a corresponding decrease in Eric’s earning capacity.
Jennifer further emphasizes Eric’s own testimony regarding
cash gifts from his parents which were not reflected in his
income tax returns. Altogether, Jennifer argues that Eric failed
to prove a material change in his earning capacity, such that the
district court erred in modifying Eric’s child support obliga-
tion. We agree.
[5-7] A party seeking to modify a child support order
must show a material change in circumstances which (1)
occurred subsequent to the entry of the original decree or
previous modification and (2) was not contemplated when
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Cite as 31 Neb. App. 799the decree was entered. Freeman v. Groskopf, 286 Neb. 713,
838 N.W.2d 300 (2013). Among the factors to be considered
in determining whether a material change of circumstances
has occurred 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. Fetherkile v.
Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018). The party
seeking the modification 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. Id.Jennifer’s initial complaint for modification primarily alleged
grounds to modify custody of the parties’ minor child. That is,
Jennifer alleged a number of material changes in circumstances
regarding Eric’s conduct as a parent and the living condi-
tions at Eric’s house, but there was no allegation of a change
in the parties’ income or earning capacity. Eric’s answer and
counterclaim is likewise lacking any allegation that there had
been a material change in circumstances affecting the financial
position of the parties. Rather, Eric affirmatively alleged that
there had not been a material change of circumstance warrant-
ing modification. Only in the alternative, if the court found
a basis to modify custody, did Eric request an order “setting
the financial obligations of the parties . . . as determined by
the custodial placement set.”
While both Jennifer and Eric ostensibly requested a modi-
fication of child support in their pleadings, both requests
were contingent upon a modification of custody. However,
the parties subsequently stipulated to leave physical custody
and parenting time unchanged. Once it was determined that
there would not be a modification of physical custody or
parenting time, the alleged change in circumstances war-
ranting modification of child support evaporated. It is true
that the parties’ joint stipulation provided that “[t]he parties
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Cite as 31 Neb. App. 799agree a material change of circumstances has occurred since
the entry of the Decree and Orders of Modification, which
was not contemplated by the parties at the time the Orders
were entered . . . .” However, the stipulation did not indi-
cate the nature of such agreed upon change in circumstances
as it related to child support. Rather, the parties apparently
took for granted that Eric’s income had changed materially,
such that the only remaining questions were whether it had
increased or decreased and by how much.
[8] In addressing a modification of custody, the Nebraska
Supreme Court recently reiterated that “proof of a change
of circumstances is not an optional element to a modifica-
tion proceeding.” Weaver v. Weaver, 308 Neb. 373, 388, 954
N.W.2d 619, 630 (2021). Rather, proof of a material change
of circumstances is the threshold inquiry in a proceeding on
a complaint to modify, because issues determined in the prior
custody order are deemed preclusive in the absence of proof
of new facts and circumstances. Id. Likewise, modification of
an existing child support order must be based on new facts
and circumstances, and we are not bound by the parties’ stipu-
lation that such facts and circumstances exist. See Bevins v.
Gettman, 13 Neb. App. 555, 560, 697 N.W.2d 698, 703 (2005)
(noting “well-established authority” that stipulation of parties
as to child support is not binding on court). See, also, Schulze
v. Schulze, 238 Neb. 81, 469 N.W.2d 139 (1991) (determina-
tion as to best interests of child is judicial decision based on
evidence and not exclusively parental stipulation).
As mentioned above, the only change in circumstances
affecting child support that was alleged in the pleadings was
the contemplated change in custody which never materialized.
The only other plausible change in circumstances that was dis-
cussed on the record was the purported change in Eric’s earn-
ing capacity. In that regard, Jennifer argued that Eric’s earning
capacity had materially increased since the 2016 modification,
whereas Eric argued that his earning capacity had materi-
ally decreased.
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Cite as 31 Neb. App. 799Importantly, nowhere in the district court’s order of modifi-
cation did it identify a material change in circumstances war-
ranting modification of child support. Nevertheless, the court
proceeded to analyze the parties’ income and earning capacity
for purposes of recalculating child support. We conclude it was
an abuse of discretion to proceed to modification of the exist-
ing child support order without first finding a material change
in circumstances. Thus, we examine the record to determine
whether either party produced sufficient proof of a mate-
rial change in Eric’s earning capacity since the entry of the
2016 modification.
At trial, Jennifer’s position was that Eric’s monthly earn-
ing capacity had increased materially from $3,293 in 2016
to $8,646 at the time of trial. In support of that position,
Jennifer provided exhibits 37 and 42, which purported to illus-
trate Eric’s earning capacity through aggregate deposits into
Eric’s bank accounts. However, as the district court rightfully
noted, Jennifer failed to subject those exhibits to examination
by a professional accountant or otherwise explain the extent
to which the deposits actually reflected income as opposed to
some other transaction. Indeed, Eric specifically controverted a
number of the largest deposits on the grounds that they lacked
appropriate context or were already accounted for in Eric’s
tax returns. Accordingly, we agree with the district court that
exhibits 37 and 42, without more, are misleading at best. Thus,
we conclude that Jennifer failed to meet her burden to prove a
material increase in Eric’s earning capacity.
Eric’s position at trial was that his monthly earning capac-
ity had decreased materially from $3,293 in 2016 to minimum
wage, or $1,560, at the time of trial. In support of that posi-
tion, Eric provided his income tax returns from 2018, 2019,
and 2020, which admittedly reflect a substantial decrease in
his taxable income from 2016 to the time of trial. However,
Jennifer’s position, both at trial and now on appeal, is that
Eric’s income tax returns do not accurately reflect his earn-
ing capacity. In fact, Eric seemingly agreed that his tax
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Cite as 31 Neb. App. 799returns do not accurately reflect his earning capacity, as he
admitted that he was capable of earning at least minimum
wage despite reporting a net loss on his tax returns for 2 years
straight. Thus, the ultimate question on appeal is whether, inde-
pendent of his admittedly misleading tax returns, Eric met his
burden to prove a material decrease in his income.
[9,10] It is invariably concluded that a reduction in child
support is not warranted when an obligor parent’s financial
position diminishes due to his or her own voluntary wastage or
dissipation of his or her talents and assets and a reduction in
child support would seriously impair the needs of the children.
Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009).
In Schulze v. Schulze, 238 Neb. 81, 469 N.W.2d 139 (1991),
the Supreme Court concluded that an obligor parent’s reduc-
tion in income did not warrant modification of child support
where the reduction in income was attributable to the parent’s
personal wishes and not the result of unfavorable or adverse
conditions in the economy, the parent’s health, or other cir-
cumstances affecting earning capacity.
In the present case, there is no question that Eric’s taxable
income has consistently decreased each year since the 2016
modification. However, Eric’s own testimony suggests that
the precipitous decline in his taxable income was the result
of voluntary reductions in income attributable to his personal
wishes as opposed to some other circumstances affecting
earning capacity. The record also suggests that Eric was able
to counter that reduction in taxable income to some extent
through additional “gifts” from his parents over the course of
the last few years. We note that the record is devoid of any
evidence as to the needs of the parties’ minor child or the
effect that the district court’s modification of child support
may have thereon. Moreover, we agree with the district court
that the timing of Eric’s reduction in income “raises suspi-
cions,” as it coincided with a significant increase in Eric’s
aggregate child support obligation.
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Cite as 31 Neb. App. 799In September 2016, Eric was ordered to pay $250 per
month in child support in a separate case, and roughly 3
months later, Eric’s monthly child support obligation in this
case increased from $75 to $194. At that time, Eric was work-
ing full time as a farmhand and making $3,293 per month.
Using that figure, Eric’s aggregate monthly child support
obligation increased from $75 for one child to $444 for three
children. Right around the time of that increase, sometime in
“fall of 2016,” Eric left his full-time employment to pursue
other ventures in self-employment. That career move resulted
in a marked decrease in Eric’s annual taxable income from
$38,825 in 2016 to $4,699 in 2017. Thereafter, Eric’s taxable
income continued to decrease, as he eventually chose to stop
the profitable construction business and focus exclusively on
his unprofitable farming operation.
Under the circumstances of this case, we conclude that Eric
failed to meet his burden to prove a material decrease in his
monthly earning capacity. Eric’s monthly earning capacity was
$3,293 in 2016, and neither party produced sufficient evidence
to reliably conclude that Eric’s current earning capacity is
materially more or less than that. While Eric’s actual income
has decreased since the 2016 modification, we conclude that
decrease was a result of Eric’s personal wishes to farm exclu-
sively and does not amount to a material change in circum-
stances warranting modification of child support. See Schulze
v. Schulze, supra.Altogether, we conclude that the district court abused its
discretion by proceeding to modify child support without first
satisfying the threshold inquiry as to whether there was a
material change in circumstances. Furthermore, we conclude
that the record in this case does not support a material change
in circumstances warranting modification of child support.
Thus, we reverse the district court’s modification of Eric’s
child support obligation and reinstate the child support obliga-
tion contained in the 2016 order of modification.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
KOTAS V. BARNETT
Cite as 31 Neb. App. 799Division of Child-Related Expenses.
Jennifer next assigns that the district court erred in order-
ing the parties to equally share all reasonable and neces-
sary direct child-related expenditures. As discussed above,
the record failed to demonstrate a material change in the
financial positions of the parties. Moreover, there was no
evidence regarding the actual expenses incurred on behalf of
the parties’ minor child, let alone evidence that such expenses
had materially changed since the 2016 modification. Without
a material change in circumstances warranting modification
of the existing cost-sharing arrangement, it was an abuse of
discretion to modify the same. Thus, we reverse the district
court’s division of child-related expenses and reinstate the
cost-sharing arrangement as it existed prior to these modifica-
tion proceedings.
Motion to Reconsider.
Lastly, Jennifer assigns that the district court erred in deny-
ing her motion to reconsider. Jennifer’s motion sought recon-
sideration of “the issues of child support and division of
expenses.” Having found the district court erred in finding
a material change in circumstances warranting modification,
we need not address Jennifer’s last assigned error. See In re
Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d 704 (2021)
(appellate court not obligated to engage in analysis not neces-
sary to adjudicate case).
CONCLUSION
For the foregoing reasons, we reverse the district court’s
modification of Eric’s child support obligation and reinstate
the child support obligation as calculated in the 2016 order of
modification. Likewise, we reverse the district court’s modi-
fication of the parties’ cost-sharing arrangement and rein-
state the cost-sharing arrangement as it existed prior to these
proceedings.
Reversed.