Dean v. Dean, A-95-259

Citation552 N.W.2d 310,4 Neb.App. 914
Decision Date13 August 1996
Docket NumberNo. A-95-259,A-95-259
PartiesDebra A. DEAN, Appellee, v. Jerry A. DEAN, Appellant.
CourtCourt of Appeals of Nebraska

Syllabus by the Court

1. Modification of Decree: Appeal and Error. The determination as to modification of a dissolution decree is a matter of discretion for the trial court, and its decision will be reviewed on appeal de novo on the record and will be reversed upon an abuse of discretion.

2. Judges: Words and Phrases: Appeal and Error. A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but 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.

3. Modification of Decree: Child Support. The general rule in Nebraska is to allow a modification of a child support order prospectively from the time of the modification order itself.

4. Modification of Decree: Child Support. Under certain circumstances, modification of a child support order retroactive 5. Modification of Decree: Child Support. The retroactive modification of child support is limited to the date of the filing of the application for modification.

to the filing date of the application for modification may be proper.

John R. Brogan, of Brogan & Brogan, York, for appellant.

Michael H. Powell, Aurora, for appellee.

MILLER-LERMAN, C.J., and MUES and INBODY, JJ.

MUES, Judge.

INTRODUCTION

Jerry A. Dean appeals from an order of the district court ordering the retroactive modification of Jerry's child support obligation to a date prior to the filing of the application for modification.

STATEMENT OF CASE

Jerry and Debra A. Dean were divorced by decree on September 30, 1992. Debra was awarded custody of three of the parties' four minor children, Michelle, Marcena, and Jeremy, and Jerry was ordered to pay child support in the amount of $133.33 per child, or a total of $400 per month. The decree further awarded custody of the parties' remaining minor child, Jason, to Jerry. Michelle reached the age of majority on June 5, 1993, at which time Jerry began paying support for only two children.

Jason began living with Debra in late August or September 1993. Debra filed an application for modification on October 28, 1994, seeking a change in custody regarding Jason and child support on his behalf. By order dated January 24, 1995, the court approved the parties' stipulation changing custody of Jason to Debra and further ordered Jerry, beginning September 1, 1993, to pay child support in the amount of $439 for his three minor children then in Debra's care. Jerry's motion for a new trial was overruled on February 8, 1995.

Evidence adduced at the January 5, 1995, hearing established that Jerry had paid no support for Jason since Jason began living with Debra in late August or September 1993.

ASSIGNMENTS OF ERROR

Jerry asserts that the trial court erred in (1) modifying his child support obligation retroactively to a date prior to the filing of Debra's application for modification and (2) modifying his child support obligation for the two children who had always been in Debra's custody and for whom child support had already been paid in accordance with the amounts specified in the original decree.

STANDARD OF REVIEW

The determination as to modification of a dissolution decree is a matter of discretion for the trial court, and its decision will be reviewed on appeal de novo on the record and will be reversed upon an abuse of discretion. Adrian v. Adrian, 249 Neb. 53, 541 N.W.2d 388 (1995). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but 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. Jirkovsky v. Jirkovsky, 247 Neb. 141, 525 N.W.2d 615 (1995).

ANALYSIS

This case presents the issue of whether a child support modification may be ordered retroactive to a date prior to the filing of the application to modify. The general rule in Nebraska is to allow a modification of a child support order prospectively from the time of the modification order itself. Maddux v. Maddux, 239 Neb. 239, 475 N.W.2d 524 (1991). This general rule recognizes that support payments, ordered pursuant to a divorce decree and contingent only upon a subsequent order of the court, become vested in the payee as they accrue. Id. However, the Nebraska Supreme Court in Maddux, although rejecting retroactive modification in that case where the father entered court with "unclean hands," recognized In Wulff v. Wulff, 243 Neb. 616, 500 N.W.2d 845 (1993), the Supreme Court affirmed a trial court's order requiring the father to pay support retroactive to the date the mother filed her petition for modification. In Wulff, a 1988 divorce decree awarded custody of the parties' two minor children to the mother. This decree was modified in April 1990, at which time the father's child support obligation was terminated after the court awarded him custody of the younger child and found that the elder child had become emancipated because she was living independently. The modification order further required the mother to begin paying child support for the younger child. The mother sought another modification in August 1990, asserting that the elder child had moved back into her home. In a March 1991 order, the father was ordered to pay support for the elder child from September 1 through December 1, 1990, the month in which the elder child reached the age of majority. The Supreme Court affirmed this retroactive order of support. Thus, Nebraska has recognized that under certain circumstances, a parent may be ordered to pay support from the date of the filing of the application for modification, where he or she previously was not ordered to do so.

                that under certain circumstances, modification of a child support order retroactive to the filing date of the application for modification may be proper.  (Citing Goodman v. Goodman, 173 Neb. 330, 113 N.W.2d 202 (1962) (accrued child support payments after date of filing canceled where mother deliberately removed children from state for purpose of keeping them away from father).)   The Maddux court also recognized other circumstances in which a retroactive modification had been allowed.  See, also, Berg v. Berg, 238 Neb. 527, 471 N.W.2d 435 (1991) (credit allowed for amounts due for support of child for period of time in which child resided with noncustodial parent);  Williams v. Williams, 206 Neb. 630, 294 N.W.2d 357 (1980) (doctrine of equitable estoppel applied to defeat claim for accrued child support payments where natural father reasonably believed that child had been adopted).  While the aforementioned cases deal with the retroactive decrease of child support, the Supreme Court has also allowed the retroactive increase of child support to the date of the filing of the petition for modification
                

In the case now before this court, however, the trial court went beyond the authority provided by Wulff, supra, and ordered Jerry to pay support commencing September 1, 1993, a date prior to the filing of Debra's application for modification. The record shows that the dissolution decree of September 1992 awarded custody of Jason to Jerry. In late August or September 1993, however, Jason moved out of his father's home and into his mother's. Debra did not file her application for modification until October 1994. Based on the fact that Jason had resided with his mother since September 1993, the trial court ordered Jerry's child support obligation retroactive to September 1, 1993. In so deciding, the trial court relied upon authority allowing for the retroactive order of child support from the date of the child's birth in paternity cases. Debra cites similar authority in support of her argument that child support retroactive to September 1, 1993, was proper in this case. We disagree.

Debra's reliance upon State on Behalf of Matchett v. Dunkle, 244 Neb. 639, 508 N.W.2d 580 (1993), is misplaced. In State on Behalf of Matchett, a petition to establish paternity was filed on February 21, 1990, on behalf of a minor child born on March 9, 1988. Following a hearing on October 30, 1991, the trial court specifically declined to order retroactive support and ordered support commencing only from November 1, 1991. The Supreme Court disagreed, stating:

The plain words of [Neb.Rev.Stat.] § 43-1402 [ (Reissue 1988) ] require that an out-of-wedlock child be supported by its father "to the same extent and in the same manner" as a child born in wedlock. A parent is required to provide his or her child with the basic necessities of life. [Citation omitted.] It is obvious that such a requirement must begin at the time of the child's birth, for it is at that time that a child is most helpless and most dependent upon its parents for the child's very survival.

This is true for any child, not just for a child born in wedlock.

When paternity is legally established, there is no rational basis to distinguish the support obligations of a father to a child born out-of-wedlock from the support obligations of a father to a child born in wedlock, and an out-of-wedlock child should be entitled to support from its father from the time of birth under the provisions of § 43-1402. We can perceive of no other way in which an out-of-wedlock child whose paternity is legally established could be supported by its father "to the same extent and in the same manner" as a child born in wedlock.

Id. at 643-44, 508 N.W.2d at 583.

In State on Behalf of Matchett, the Supreme Court held that the statute required an award of retroactive child support. In that case, the mother...

To continue reading

Request your trial
4 cases
  • Willers ex rel. Powell v. Willers
    • United States
    • Nebraska Supreme Court
    • December 18, 1998
    ...child support payments cannot be granted to children born in wedlock. For example, Willers cites to the holdings in Dean v. Dean, 4 Neb.App. 914, 552 N.W.2d 310 (1996), and Meyer v. Meyer, 17 Ohio St.3d 222, 478 N.E.2d 806 (1985), to support his claim that retroactive child support payments......
  • Riggs v. Riggs
    • United States
    • Nebraska Supreme Court
    • March 9, 2001
    ...in absence of bad faith when parent does not have ability to pay retroactive support and has met current obligations); Dean v. Dean, 4 Neb.App. 914, 552 N.W.2d 310 (1996) (holding that modification should have been made retroactive to first month after date of filing for modification); Lebr......
  • 1998 -NMCA- 100, Rochester v. Rochester
    • United States
    • Court of Appeals of New Mexico
    • June 11, 1998
    ...retroactive modification of child support orders. See 42 U.S.C. § 666(a)(9)(C) (1984, as amended through 1997); Dean v. Dean, 4 Neb.App. 914, 552 N.W.2d 310, 314 (1996) (discussing the federal ¶15 Thus, if Father is entitled to any relief from the Texas lump-sum decree, it must be pursuant ......
  • Becker v. Becker
    • United States
    • Nebraska Court of Appeals
    • December 16, 1997
    ...is to allow modification of a child support order to operate prospectively from the time of the modification order. Dean v. Dean, 4 Neb.App. 914, 552 N.W.2d 310 (1996). But, in certain circumstances, a modification can be made retroactive to when the application to modify was filed. Id. In ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT