Anderson v. Anderson

• Court: Nebraska Supreme Court
• Writing for the Court: Connolly, J.
• Citation: Anderson v. Anderson, 861 N.W.2d 113 (Neb. 2015)
• Decision Date: 03 April 2015
• Docket Number: No. S–14–179,S–14–179
• Parties: Wade B. Anderson, appellant, v. Olive N. Anderson, appellee.

861 N.W.2d 113

Wade B. Anderson, appellant

v.Olive N. Anderson, appellee.

No. S–14–179

Supreme Court of Nebraska.

Filed April 3, 2015

Andrew M. Ferguson, of Carlson & Burnett, L.L.P., Omaha, for appellant.

Karen S. Nelson, of Schirber & Wagner, L.L.P., Papillion, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Judgments: Child Support: Alimony: Taxation: Appeal and Error.An appellate court reviews a trial court's determinations on matters such as child support, alimony, and the child dependency exemption de novo on the record to determine whether the trial judge abused his or her discretion.

2. Judgments: Appeal and Error.An appellate court reviewing a trial court's determination de novo on the record to determine whether the trial judge abused his or her discretion conducts its own appraisal of the record to determine whether the trial court's judgments are untenable such as to have denied justice.

3. Child Support: Rules of the Supreme Court.A court may deviate from the Nebraska Child Support Guidelines if their application in an individual case would be unjust or inappropriate.

4. Child Support: Rules of the Supreme Court.A deviation from the Nebraska Child Support Guidelines without a clearly articulated justification is an abuse of discretion.

5. Child Support.A trial court may consider the status and situation of the parties, including their financial condition, in determining the amount of child support.

6. Divorce: Property Division: Alimony.In dividing property and considering alimony upon a dissolution of marriage, a court should consider four factors: (1) the circumstances of the parties, (2) the duration of the marriage, (3) the history of contributions to the marriage, and (4) the ability of the supported party to engage in gainful employment without interfering with the interests of any minor children in the custody of each party.

7. Divorce: Property Division: Alimony.In addition to the specific criteria listed in Neb.Rev.Stat. § 42–365 (Reissue 2008), in dividing property and considering alimony upon a dissolution of marriage, a court should consider the income and earning capacity of each party and the general equities of the situation.

8. Alimony: Appeal and Error.In reviewing an alimony award, an appellate court does not determine whether it would have awarded the same amount of alimony as did the trial court, but whether the trial court's award is untenable such as to deprive a party of a substantial right or just result.

9. Alimony.The primary purpose of alimony is to assist an ex-spouse for a period of time necessary for that individual to secure his or her own means of support.

10. Alimony.In an alimony award, the ultimate criterion is one of reasonableness.

11. Alimony.Alimony is not a tool to equalize the parties' income, but a disparity of income or potential income might partially justify an alimony award.

12. Child Support: Taxation: Presumptions.In general, the custodial parent is presumptively entitled to the federal tax exemption for a dependent child.

13. Child Support: Taxation: Waiver.A court may exercise its equitable powers and order the custodial parent to execute a waiver of his or her right to claim the tax exemption for a dependent child if the situation of the parties so requires.

14. Child Support: Taxation.Allocation of the dependency exemption to the noncustodial parent is not warranted if the parent pays a relatively small amount of child support.

15. Divorce: Attorney Fees.A uniform course of procedure exists in Nebraska for the award of attorney fees in dissolution cases.

16. Divorce: Attorney Fees.In awarding attorney fees in a dissolution action, a court should consider the nature of the case, the amount involved in the controversy, the services actually performed, the results obtained, the length of time required for preparation and presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar services.

Connolly, J.

SUMMARY

Olive N. Anderson, a Filipino national, moved to Nebraska and married Wade B. Anderson after meeting him through an online dating service. Their marriage soured, and the court entered a dissolution decree giving Wade custody of their only child. Wade argues that the court ordered Olive to pay child support that is too low and ordered him to pay alimony that is too high. Wade further contends that the court erred by failing to require Olive to pay part of the childcare and nonreimbursed medical expenses, allowing Olive to claim the dependency exemption in even-numbered years, and awarding Olive attorney fees. We conclude that the court abused its discretion by ordering Wade and Olive to alternate the dependency exemption, but otherwise affirm.

BACKGROUND

Factual Background

Wade met Olive through an online dating service. Wade lived in Blair, Nebraska, and Olive lived in the Philippines with her parents. Wade made a 10–day trip to the Philippines in 2007, during which Olive conceived a child. In July 2008, Olive gave birth to a girl in the Philippines. Wade was not present for the birth but sent Olive money.

Wade started “naturalization proceedings” for his daughter after a paternity test showed that he was her father. In July 2009, Wade brought Olive and their daughter to his home in Blair. Wade testified that Olive came to the United States on a “fiancee visa.” Wade and Olive married in October 2009.

Olive testified that she had never been away from her family before she moved to Blair. Olive said that she had friends and “a lot of extended family” in the Philippines, and “felt sad and fear” about leaving them.

Olive stated that she came to Nebraska so that both parents could raise her child and because Wade promised to “give [her] a better life” and help her pursue higher education.

Wade testified that he discussed college with Olive before she came to the United States. Olive testified that she would not have left her “support system” in the Philippines without these promises.

Olive has the Filipino equivalent of a high school diploma but said that her degree is not “recognize[d]” in the United States. The record shows that her lack of education limits her job opportunities. Olive speaks English, but Visayan is her “primary language.”

Wade is an electrician with 20 years' experience. He is paid $31.75 an hour and works about 40 hours per week. Wade has been “steadily employed” despite some “periodic” layoffs, the most recent of which occurred in 2012. Wade said that he had to work a “supplemental job” in 2012, and his tax filings show that he earned about $29,000 of wages and unemployment benefits that year.

Olive stated that she found her first job in the United States in November 2010. Before then, she cared for her daughter and maintained the home. After Wade was laid off, Olive worked more hours to help support the family.

According to Wade, his union with Olive “went fairly smooth” for the first few months, but then “kind of waxed and waned.” In July 2012, Olive told Wade that she had had an affair. In August, Olive told Wade that she was pregnant. Olive left the marital home the same month. The parties stipulated that Wade is not the biological father of Olive's second child.

Olive currently works about 16 hours a week for a car parking company, earning $8.25 per hour. Olive said that her current employer has “full-time hours available,” but that the additional hours would interfere with her parenting obligations and that she wants a job that does not require her to work weekends. Olive sought other full-time jobs but encountered “difficulties” because of her parental duties and lack of education.

Regarding future goals, Olive stated that she wants to “get a GED” and study accounting at a community college. Olive said that she is ineligible for student aid because she is not a U.S. citizen.

Olive had moved to three different residences in the 10 months before trial. She testified that she currently lives with her boyfriend in Omaha, Nebraska, but that she is not “on the lease.” Olive has not looked for her own apartment because she believes doing so is futile without a credit history. Olive testified that she pays $400 of rent per month and pays unspecified credit card, car, insurance, childcare, and telephone bills. Olive said that she does not have private health insurance or Medicaid coverage.

Procedural Background

Wade filed a complaint for dissolution in August 2012, requesting sole custody of his child with Olive and child support. Olive filed an answer and counterclaim, requesting sole custody, alimony, child support, and attorney fees.

At the end of the August 2013 trial, the court awarded Wade permanent legal and physical custody of the parties' daughter. Regarding child support, the court deemed Olive capable of working 40 hours per week and earning a minimum wage. In worksheet 1 of the Nebraska Child Support Guidelines incorporated by the decree, Olive's imputed total monthly income was $1,256 and, after the subsistence limitation was applied, she would owe $169.70 of child support each month. But the decree ordered Olive to pay only $50 per month of child support. The decree stated that the deviation from the guidelines was “specifically approved by the Court based on the current financial circumstances of [Olive].” At the conclusion of trial, the court stated that the deviation was warranted because of Olive's “limited income,” lack of insurance, and “other issues.”

The court ordered Wade to pay Olive $600 of alimony per month for the next 60 months. The court acknowledged the relatively short duration of the marriage but found that the “unique circumstances of this case” put Olive “in a difficult situation.” Wade interrupted Olive's “personal career and educational opportunity” in the Philippines by bringing her to a foreign country where she lacked a “recognized high school diploma.” The court emphasized that Wade had...