Caniglia v. Caniglia

• Decision Date: 17 May 2013
• Docket Number: No. S–12–794.,S–12–794.
• Citation: 285 Neb. 930,830 N.W.2d 207
• Parties: Cynthia Rae CANIGLIA, appellant, v. Jason Arthur CANIGLIA, appellee.
• Court: Nebraska Supreme Court

285 Neb. 930

830 N.W.2d 207

Cynthia Rae CANIGLIA, appellant,

v.Jason Arthur CANIGLIA, appellee.

No. S–12–794.

Supreme Court of Nebraska.

May 17, 2013.

Syllabus by the Court

[285 Neb. 930]1. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.

2. Modification of Decree: Appeal and Error. Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court.

3. Parent and Child: Child Support. Support of one's children is a fundamental obligation which takes precedence over almost everything else.

4. Statutes. Absent a statutory indication to the contrary, words in a statute will be given their ordinary meaning.

5. Modification of Decree: Minors. A decree in a divorce case, insofar as minor children are concerned, is never final in the sense that it cannot be changed.

6. Statutes. Statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together.

[285 Neb. 931]7. Statutes. All statutes relating to the same subject are considered as parts of a homogeneous system, and later statutes are considered as supplementary to preceding enactments.

8. Modification of Decree: Child Support: Proof. A party's responsibility under Neb.Rev.Stat. § 42–364.17 (Reissue 2008) for reasonable and necessary medical, dental, and eye care; medical reimbursements; daycare; extracurricular activity; education; and other extraordinary expenses of the child to be made in the future may be modified if the applicant proves that a material change in circumstances has occurred since entry of the decree or a previous modification.

9. Evidence: Appeal and Error. Where credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give great weight to, the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.

Margaret M. Zarbano for appellant.

Kristina B. Murphree, Omaha, and Steven J. Riekes, of Marks, Clare & Richards, L.L.C., Omaha, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER–LERMAN, and CASSEL, JJ.

CASSEL, J.

INTRODUCTION

In this appeal from an order modifying a dissolution decree's financial arrangements for a child, the primary question is whether Nebraska law allows the allocation of a child's extraordinary expenses, based on Neb.Rev.Stat. § 42–364.17 (Reissue 2008), to be modified. Because extraordinary expenses are merely an incident of the parents' responsibility to support their child, these expenses can be modified. And considering the modifications ordered by the district court in light of the evidence, we find no abuse of discretion. We affirm the modification of the parties' dissolution decree.

BACKGROUND

The marriage of Cynthia Rae Caniglia and Jason Arthur Caniglia was dissolved by consent decree in June 2010. This decree required Jason to pay child support for the parties' minor child in the amount of $722 per month and to be responsible for half of “extra curricular [sic] activities, education ... and other extraordinary expenses of the minor child,” pursuant to § 42–364.17. A subsequent order nunc pro tunc ordered each party to pay 50 percent of work-related childcare expenses.

After entry of the divorce decree, Jason became unemployed. He filed a petition to modify the decree, requesting, among other things, modification of child support and of his responsibility for extraordinary expenses and childcare expenses.

Following a hearing on Jason's petition for modification, the district court entered a modification order finding that there had been a material change in circumstances warranting a change in child support and some of Jason's other financial obligations to the child. The court reduced Jason's child support obligation to $375 per month and his responsibility for work-related daycare expenses to 36 percent. The court left Jason responsible for 50 percent of extracurricular activities, education, and other extraordinary expenses, but modified the provision addressing these expenses “to the extent that the custodial parent may not incur extra expenses not currently being paid, without the approval of the non-custodial parent.”

Cynthia timely appeals. Pursuant to statutory authority, we moved the case to our docket.¹

ASSIGNMENTS OF ERROR

Cynthia alleges, reordered and restated, that the district court erred in (1) modifying the extraordinary expenses provision arising under § 42–364.17, (2) determining that there was a change in circumstances warranting a reduction in Jason's child support and childcare contribution percentage, and (3) modifying the decree of dissolution to require Jason to contribute only to expenses of which he approves.

STANDARD OF REVIEW

Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.²

Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court.³ The same standard applies to the modification of child support.⁴

ANALYSIS

Modification of Extraordinary Expenses Provision

We begin by quoting the pertinent language of § 42–364.17, which states that “[a] decree of dissolution ... shall incorporate financial arrangements for each party's responsibility for reasonable and necessary medical, dental, and eye care, medical reimbursements, day care, extracurricular activity, education, and other extraordinary expenses of the child and calculation of child support obligations.”

Cynthia rather tersely argues that modification of child support is addressed in Neb.Rev.Stat. § 42–364(6) (Cum.Supp.2012) and Neb. Ct. R. § 4–217 and that “[t]here is nothing in statute that allows for modification of the provisions under § 42–364.17.” ⁵ Although she does not amplify the connection, we understand her argument on brief as asserting that neither § 42–364(6) nor § 4–217 expressly refers to extraordinary expenses or § 42–364.17. At oral argument, Cynthia simply adhered to a straightforward argument that expenses allocated under § 42–364.17 are not subject to modification.

Contrary to Cynthia's argument on brief, the language of § 42–364(6) is broad enough to encompass extraordinary expenses of a child. The first sentence of § 42–364(6) permits “[m]odification proceedings relating to support, custody, parenting time, visitation, other access, or removal of children from the jurisdiction....” (Emphasis supplied.) Cynthia provides no authority for the proposition that “support” under § 42–364(6) does not include the items listed in § 42–364.17. Support of one's children is a fundamental obligation which takes precedence over almost everything else.⁶ Absent a statutory indication to the contrary, words in a statute will be given their ordinary meaning.⁷ “Support” is commonly defined as “a means of livelihood, sustenance, or existence.” ⁸ The common meaning of “support” clearly includes all of the incidents of a child's needs. Of course, one incident of “support” is the regular monthly payment established under the guidelines.⁹ But the guidelines recognize other incidents of “support” that are wholly ¹⁰ or partly ¹¹ outside of the monthly installment. The expenses stated in § 42–364.17—including, among others, extracurricular, education, and other extraordinary expenses—merely represent other incidents of “support” to be addressed in a dissolution decree.

The omission of the words “extraordinary expenses” in § 4–217 provides no support for Cynthia's argument. Section 4–217 merely provides a formula permitting a rebuttable presumption of a material change in circumstances. Elsewhere, the child support guidelines contemplate that extraordinary or unusual expenses will be addressed outside the guidelines' framework. ¹²

Under our case law, provisions of a divorce decree relating to children can always be modified. As we have stated, “A decree in a divorce case, insofar as minor children are concerned, is never final in the sense that it cannot be changed.” ¹³ Consistent with this principle, Nebraska courts have ordered modification of child custody,¹⁴ child support,¹⁵ visitation,¹⁶ supervised parenting time,¹⁷ responsibility for childcare expenses,¹⁸ and uninsured medical expenses.¹⁹

Extraordinary expenses are no different than these other, clearly modifiable issues relating to children. Although § 42–364.17 was enacted much later than the original statutory scheme governing child support, ²⁰§ 42–364.17 is now part of this same statutory scheme. Statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together.²¹ All statutes relating to the same subject are considered as parts of a homogeneous system, and later statutes are considered as supplementary to preceding enactments.²² Considering that Neb.Rev.Stat. §§ 42–364 to 42–364.16 (Reissue 2008 & Cum.Supp.2012) explicitly govern child support, which is undoubtedly modifiable,²³ we see no reason why provisions based on § 42–364.17 should not be treated as a subset of child support and thus be subject to modification as well.

An appellate court will not look beyond a statute to determine legislative intent when the words are plain, direct, or unambiguous.²⁴ The words of § 42–364.17 are plain, direct, and unambiguous—the financial matters it governs are part of the support that parents must provide to their children. Thus, we do not consider the legislative history of § 42–364.17.

We view § 42–364.17 in the context of the statutory scheme governing child support. In this context, it is clear that there is no persuasive reason for treating extraordinary expenses...