Gillispie v. Fleming

Decision Date10 May 2022
Docket NumberA-21-718
PartiesMichael J. Gillispie, appellant, v. Brittany M. Fleming, now known as Brittany M. Schrom, appellee.
CourtCourt of Appeals of Nebraska

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: Timothy P. Burns Judge. Affirmed.

John A. Kinney, Jill M. Mason, and Samantha M. Robb, of Kinney Mason, P.C., L.L.O., for appellant.

Jeffrey A. Wagner and Joshua W. Pazderka, of Wagner, Meehan & Watson, L.L.P., for appellee.

Pirtle, Chief Judge, and Bishop and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

PIRTLE, CHIEF JUDGE

INTRODUCTION

Michael J. Gillispie appeals from the order of the Douglas County District Court decreasing the child support obligation of Brittany M. Fleming, now known as Brittany M. Schrom. For the reasons that follow, we affirm.

BACKGROUND

Michael and Brittany were never married and are the biological parents of two children. Michael has sole physical custody of the children, and the parties share joint legal custody, with Michael having final authority in the event of an impasse. Paternity of the children was established in a May 2008 judgment of paternity and order, but that order did not establish child support. In an April 2013 order modifying decree, Brittany was ordered to pay $190 per month in child support. Brittany's child support obligation was then increased to $1, 087 per month in an August 2019 order of modification. At that time, Brittany was employed in the sales department at a Woodhouse auto dealership (Woodhouse), and a child support worksheet attached to the order indicates that Brittany's total monthly income was $7, 848.39.

The present action commenced when Brittany filed a complaint to modify on August 28, 2020, alleging a "change in employment out of her control that would make the Nebraska Child Support Guidelines vary by more than ten (10) percent" and that such circumstances "have lasted at least three (3) months and can reasonably be expected to last for an additional six (6) months." On October 2, Michael answered Brittany's complaint, denying the pertinent allegations therein and asserting the affirmative defenses of waiver, estoppel, res judicata, issue preclusion, and unclean hands. Michael also counterclaimed, alleging a material change in circumstances justifying an increase of Brittany's child support obligation. On October 21, Brittany answered Michael's counterclaim, generally denying the allegations therein.

The matter was referred to the child support referee on March 15, 2021, and a trial was held on May 13. At trial, Brittany confirmed that at the time of the 2019 modification, she was earning approximately $7, 848 per month. However, Brittany testified to a series of events, occurring both before and after the August 2019 modification order, which ultimately resulted in a marked decrease in her monthly income. At the time of trial, Michael was employed full-time earning $15 per hour, and his income for purposes of calculating child support is not in dispute.

Brittany began working for Woodhouse in 2012 as a "Customer Follow-up," earning $10.50 per hour with no potential to earn commissions. In 2015, Brittany was transferred from customer relations to "accessory sales," which was a "100% commission job." Brittany worked in accessory sales at Woodhouse until February 2019, and it was in that position that Brittany eventually began earning in the range of $7, 848 per month. However, effective February 1, 2019, Brittany was involuntarily transferred to a vehicle sales position at Woodhouse.

The vehicle sales position was also 100 percent commission-based, however, Brittany testified that her transfer from accessory to vehicle sales eventually led to a precipitous decrease in her income. Brittany's paystubs reflect gross monthly incomes of $6, 180.33 in December 2018 and $4, 654.01 in January 2019, both of which consisted of commission earnings from accessory sales. Upon being transferred to vehicle sales in February 2019, Brittany was guaranteed a minimum gross pay of $6, 000 for the first three months. Brittany's paystubs show gross monthly incomes of $6, 000 in February and $7, 010 in March. Aside from the August 6, 2019, modification order indicating a monthly income of $7, 848, there is no record of Brittany's gross income in April, May, June, or July. However, Brittany's paystubs show gross incomes of $4, 231 in August, $3, 775 in September, and $814 in October. After various deductions, including withholding of her child support obligation, Brittany's net income for those three months was $465.62, $60.38, and $347.18 respectively. Brittany voluntarily resigned from Woodhouse on October 11, 2019, and she testified that she did so because she could no longer support her family on the income she was earning there. Brittany admitted that she did not specifically ask management about returning to accessory sales prior to resigning, however, she testified to her understanding that returning to accessory sales was not an option.

Prior to resigning from Woodhouse, Brittany obtained employment at Cox Communications (Cox), and she testified that she was "hopeful to make as much as I did in accessories at Woodhouse." However, Brittany was "let go" from Cox for unknown reasons in December 2019, and her W-2 shows total earnings of $1, 374.42. Thereafter, Brittany enrolled in "real estate school," and she worked part-time as an independent contractor for SAGE Counseling beginning in June 2020. Upon obtaining her real estate license in September 2020, Brittany began working for Ambassador Real Estate (Ambassador). Brittany sold only one property for Ambassador, earning a total gross income of $2, 976 in February 2021.

Finally, in March 2021, Brittany began working as a salesperson for "Accessory.parts," an affiliate of "LKQ Corporation," earning a monthly salary of $3, 010. Brittany testified it was possible for her to earn some commission at Accessory.parts, although, in the two months that she had been working there prior to trial, she had earned a total of $275 in commissions. Brittany testified that the Accessory.parts position was similar to her accessory sales position at Woodhouse, albeit on a "smaller scale" because Accessory.parts is not a dealership like Woodhouse. Accordingly, even with commissions, Brittany did not expect to earn what she was making in accessory sales at Woodhouse.

After trial, on May 17, 2021, the child support referee entered a report recommending that Brittany's complaint be denied. The referee acknowledged that Brittany was no longer earning $7, 848 per month, however, the referee likened the present case to Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009) and Dworak v. Fugit, 1 Neb.App. 332, 495 N.W.2d 47 (1992), where, despite an apparent reduction in income, the evidence supported imputing a higher earning capacity to the party owing child support. Reasoning that Brittany's "income decreased due to her own personal wishes, and not as a result of unfavorable or adverse conditions in the economy, her health, or other circumstances that would affect her earning capacity," the referee determined that Brittany's earning capacity remained at $7, 848 per month. The referee ultimately concluded that Brittany failed "to rebut her earning capacity as it was at the time of the 2019 Order of Modification" and thus failed to prove a material change in circumstances subsequent to that order.

On May 20, 2021, Brittany filed a notice of exception and request for review in the district court for Douglas County. After hearing, the contents of which do not appear in the appellate record, the district court entered an order of modification on August 10, 2021. The court wrote that it "disagrees with the recommendation of the Referee and finds a material change of circumstances." The court computed Brittany's total monthly income as $3, 147.50, which reflects her Accessory.parts base pay of $3, 010 plus one half of the $275 in commissions Brittany earned in the two months she had worked there. The court thus reduced Brittany's child support obligation from $1, 087 per month to $532 per month. Michael appealed.

ASSIGNMENTS OF ERROR

Michael assigns that the district court erred in (1) determining there was a change in circumstances justifying a change to Brittany's child support obligation, and (2) refusing to use Brittany's earning capacity for purposes of calculating child support.

STANDARD OF REVIEW

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. Incontro v. Jacobs, supra.

Under Neb. Rev. Stat. § 43-1613 (Reissue 2016), a district court is free to accept or reject any or all of a child support referee's findings and recommendations. Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018). Accordingly, an appellate court's review is limited to whether the district court abused its discretion in the child support ordered. Id.

ANALYSIS

A party seeking to modify a child support order must show a material change in circumstances which (1) occurred subsequent to the entry of the original decree or previous modification and (2) was not contemplated when the decree was entered. Freeman v. Groskopf, 286 Neb. 713, 838 N.W.2d 300 (2013). Among the factors to be considered in determining whether a material change of circumstances has occurred are changes in the financial position of the parent obligated to pay support, the needs of the children for whom support is paid good or bad faith motive of...

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