Crawford v. Crawford, S-00-023.
| Decision Date | 25 January 2002 |
| Docket Number | No. S-00-023.,S-00-023. |
| Citation | 263 Neb. 37,638 N.W.2d 505 |
| Parties | Kerry Katherine CRAWFORD, Appellant, v. David Brian CRAWFORD, Appellee. |
| Court | Nebraska Supreme Court |
Kent A. Schroeder and Vikki S. Stamm, of Ross, Schroeder & Romatzke, Kearney, for appellant.
Barry D. Geweke, of Stowell, Kruml, Geweke & Cullers, P.C., L.L.O., Ord, for appellee.
The Dawson County District Court granted David Brian Crawford's request to decrease his child support obligation. The court decreased David's support obligation for his three children from $950 per month to $750 per month. David's ex-wife, Kerry Katherine Crawford, appealed to the Nebraska Court of Appeals, which affirmed the decision of the district court. Kerry then petitioned for further review, which we granted.
David and Kerry were divorced on September 25, 1998, in the district court for Dawson County, Nebraska. In the decree of dissolution, the district court awarded Kerry custody of the three children born to David and Kerry during their marriage: Katherine Marie Crawford, born December 28, 1993; Thomas David Crawford, born September 26, 1995; and Molly Ann Crawford, born December 9, 1996. The court ordered David to pay child support in the amount of $950 per month for the three children.
David is also the father of Emma D., a child born out of wedlock on May 13, 1998. Emma's birth was not noted in David and Kerry's divorce decree, and the record does not reflect when David became aware of Emma's birth or his paternity. However, David does not dispute that he is Emma's father. In August 1999, paternity proceedings were instituted against David on Emma's behalf. The Dawson County District Court ordered David to pay temporary child support of $300-per-month, commencing August 1, 1999. The judge who entered the child support order for Emma was not the same judge who entered David and Kerry's decree of dissolution.
On August 25, 1999, David brought an action in Dawson County District Court to modify the decree of dissolution, requesting a decrease in his child support obligation for the three children from his marriage with Kerry. As support for the modification, David submitted to the court the temporary support order of $300 for Emma, but he did not introduce evidence concerning the income of Emma's mother or any of the calculations used to determine the $300 obligation.
The district court granted David's request for modification on December 8, 1999. While the evidence at trial established that both David and Kerry individually were receiving almost the exact amount of income as they had at the time of their divorce, the court found "good cause" for deviating from the Nebraska Child Support Guidelines because of David's additional obligation of $300-per-month for Emma. The district court determined, based on Kerry's and David's incomes, that David's support for four children is "approximately $1000.00 per month." Believing that "all four children should be treated essentially equally," the court reduced David's child support obligation for his and Kerry's three children from $950 per month to $750 per month, or $250 per child, effective September 1, 1999. Kerry appealed to the Court of Appeals.
The Court of Appeals affirmed the district court's $200 reduction of David's child support obligation. See Crawford v. Crawford, No. A-00-023, 2001 WL 436184 (). The Court of Appeals found the fact that the record was silent regarding the percentage of support provided by Emma's mother did not require reversal because "the burden of proof is Kerry's responsibility." Crawford, 2001 WL 436184 at *5. Furthermore, the Court of Appeals stated, "Kerry needed to show that David's $300-per-month child support obligation for Emma did not include consideration of Emma's mother's income, thus skewing the $300-per-month obligation in a way which made it improper for the court in the instant matter to consider that obligation." Id. Absent other proof, the court assumed that the trial judge considered Emma's mother's income in determining the $300 child support obligation. The court concluded that Emma and the three children of the marriage were essentially treated equally by the trial court's order.
Kerry petitioned for further review, and we granted her petition.
Kerry assigns in her petition for further review, rephrased and renumbered, that the Court of Appeals erred in (1) finding it was Kerry's burden to prove how the district court had calculated David's child support obligation for Emma, (2) failing to properly calculate child support when a subsequently born child is involved, and (3) finding that the trial court's child support calculation was for a four-child family instead of a three-child family.
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, the decision of the trial court will be affirmed absent an abuse of discretion. Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002).
A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Id.
Kerry argues the Court of Appeals erred when it found that it was her burden to prove the manner in which the district court calculated David's child support obligation for Emma, his child from a subsequent relationship. Citing this court's opinion in Brooks v. Brooks, 261 Neb. 289, 622 N.W.2d 670 (2001), Kerry contends that providing the calculations used to determine Emma's child support obligation should have been part of David's burden in proving why a deviation from the child support guidelines was necessary in this case.
Deviations from the guidelines are permissible whenever the application of the guidelines in an individual case would be unjust or inappropriate. Nebraska Child Support Guidelines, paragraph C. Deviations must take into consideration the best interests of the child. Id. In Brooks, we discussed the appropriateness of deviations when there are children from a subsequent relationship. We found that "[u]nder certain circumstances, it may be appropriate for a trial court to consider subsequently born children of a party when determining child support," and that "[t]his determination is entrusted to the discretion of the trial court." Brooks, 261 Neb. at 293, 622 N.W.2d at 674.
We also addressed in Brooks which party bears the burden of proof when deviations from the guidelines are requested due to support obligations for children of a subsequent relationship. We determined that "[t]he party requesting a deviation from the guidelines based upon an obligation to support offspring of a subsequent relationship bears the burden of providing evidence regarding the obligation, including the income of the other parent of the child or children of the subsequent relationship." Id. at 292-93, 622 N.W.2d at 673 (citing Hajenga v. Hajenga, 257 Neb. 841, 601 N.W.2d 528 (1999)). David requested the deviation, so it was his burden to provide the necessary evidence regarding his support obligation to Emma. Kerry contends that David did not meet this burden of...
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