Fogel v. Fogel
| Decision Date | 23 May 1969 |
| Docket Number | No. 37116,37116 |
| Citation | 184 Neb. 425,168 N.W.2d 275 |
| Parties | Monica H. FOGEL, Appellant, v. Danny L. FOGEL, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. An appeal from a judgment modifying a decree of divorce by authority of section 42--324, R.R.S.1943, is considered and decided by this court de novo upon the record made in the trial court.
2. While the discretion of the trial court with respect to awarding or changing the support of minor children is subject to review, the determination of the court will not ordinarily be disturbed unless there is a clear abuse of discretion or it is clearly against the weight of the evidence.
3. A divorce decree does not freeze a father in his employment. One may in good faith make an occupational change even though that change may reduce his ability to meet his financial obligation to his children.
Fromkin, Fromkin & Herzog, Omaha, for appellant.
Robert K. Silverman, Silverman & Silverman, Omaha, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
Appellant was granted a divorce from the appellee on October 1, 1965. Appellee was ordered to pay $600 per month for the support of three minor children, alimony of $325 per month, and to maintain an insurance program for the benefit of the children, the cost of which is $150 per month.
Appellant remarried, terminating the provision for alimony. She now lives in Cincinnati, Ohio. Appellee has also remarried, and lives in San Diego, California.
Appellee, alleging that he was attempting to establish himself in a new field of endeavor with a better future, petitioned the court for a reduction in the amount of the child support because of reduced earnings. Appellant petitioned the court for a $200 increase in the amount of the monthly child support because of the increase in costs of caring for the children, who are now 12, 10, and 8 years of age. The trial court denied the application for an increase and reduced the child support to $133 for each child, or $399 per month, but did not disturb the insurance provision. Appellant perfected and appeal to this court.
At the time the divorce was granted, appellee was employed as a home improvement salesman, earning in excess of $20,000 annually. When appellee's sales work was curtailed because of managerial duties and he could not work out a satisfactory salary arrangement with his employer, he terminated that employment in March 1967. Appellee then moved to San Diego, California, and attempted to establish himself with an encyclopedia sales organization on the promise of an executive position. After 8 months, when it became evident that this promise would not be fulfilled and he would be restricted to door-to-door sales work, he sought other employment. During the course of the 8 months, his earnings averaged $300 weekly.
Appellee, who was then 35 years of age, decided to enter the real estate sales field. To qualify for a license he attended a training school for 6 weeks. He secured a real estate sales license in January 1968, and since that time has been associated with a real estate broker on a strictly commission basis. His earnings through July 1968, were $5,442.80, from which he paid his automobile and personal expenses. He estimated his net earnings for 1968 would be at least $10,000. When he can qualify for the sale of commercial property he expects to increase is earnings substantially.
'An appeal from a judgment modifying a decree of divorce by authority of section 42--324, R.R.S.1943, is considered and decided by this court de novo upon the record made in the trial court.' Bowman v. Bowman, 163 Neb. 336, 79 N.W.2d 554. However, while the discretion of the trial court with respect to awarding or changing the support of minor children is subject to review, the determination of the court will not ordinarily be disturbed unless there is a clear abuse of discretion or it is clearly against the weight of the evidence. Johnson v. Johnson, 177 Neb. 445, 129 N.W.2d 262.
Appellant predicates her opposition to appellee's application on the premise that appellee's voluntary change of circumstances regarding career, residence, and marital status are mere adjustments of life and are not changes of circumstance sufficient in law to permit and allow a reduction of child support and a denial of an increase of child support payments. We do not accept appellant's premise. The cases cited by appellant are those where a husband, acting in bad faith, erodes his financial position. That is not the present case.
There is no willful misconduct or...
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Coons v. Wilder
...his prospects for the future, including raising his own standard of living as well as that of his children. (See Fogel v. Fogel (1969), 184 Neb. 425, 168 N.W.2d 275). Following dissolution of marriage, the custodial parent and children cannot be allowed to freeze the other parent in his emp......
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Eisenmann v. Eisenmann
...older Nebraska cases discuss and hold that a good faith decrease in income justifies a decrease in child support. See, Fogel v. Fogel, 184 Neb. 425, 168 N.W.2d 275 (1969); Bruckner v. Bruckner, 201 Neb. 774, 272 N.W.2d 270 (1978); Graber v. Graber, 220 Neb. 816, 374 N.W.2d 8 (1985); Dobbins......
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Sabatka v. Sabatka
...To support this proposition he relies on three cases: Cooper v. Cooper, 219 Neb. 64, 361 N.W.2d 202 (1985); Fogel v. Fogel, 184 Neb. 425, 168 N.W.2d 275 (1969); and Korf v. Korf, 221 Neb. 484, 378 N.W.2d 173 (1985). However, each of these cases is distinguishable from the matter now at In C......