Grange v. Grange, A-06-502.

• Decision Date: 19 December 2006
• Docket Number: No. A-06-502.,A-06-502.
• Citation: 15 Neb. App. 297,725 N.W.2d 853
• Parties: Janet J. GRANGE, appellant v. Thomas W. GRANGE, appellee.
• Court: Nebraska Court of Appeals

Page 853

725 N.W.2d 853

15 Neb. App. 297

Janet J. GRANGE, appellant v. Thomas W. GRANGE, appellee.

No. A-06-502.

Court of Appeals of Nebraska.

December 19, 2006.

COPYRIGHT MATERIAL OMITTED

Michael B. Lustgarten, of Lustgarten & Roberts, P.C., L.L.O., Omaha, for appellant.

Steven M. Delaney and Laura R. Hegge, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, for appellee.

SIEVERS, CARLSON, and CASSEL, Judges.

CASSEL, Judge.

Janet J. Grange appeals from a summary judgment entered on the motion of Thomas W. Grange, which judgment dismissed Janet's 2005 complaint for modification of decree seeking additional parenting time and reduction of child support. Viewed in the light most favorable to Janet, the evidence shows that although she had completed her surgical residency at the time of an earlier modification, her work schedule was later reduced and became more predictable, and that after the last modification, Thomas had realized additional income from his interest in a retail optical shop. Because Thomas failed to prove that there had been no material change of circumstances, we reverse the judgment and remand the cause for further proceedings.

BACKGROUND

In 1999, Janet and Thomas agreed upon a parenting plan. The plan recognized that both were fit and proper persons to have custody of the three then-minor children. The parties agreed that "it [was] in the best interests of the minor children that [Janet] and [Thomas] be awarded joint legal custody" and that "primary residential care" would "rest" in Thomas, "with parenting time and parental rights adhering to [Janet] as specified." The parties agreed to cooperate "so as, in a maximum degree, to advance the children's health, emotional, and physical well-being and to give and afford the children the affection of both parents and a sense of security." The parties agreed to visitation on alternating major holidays, on certain other special days and events, and for vacation times. The agreement further specified that Janet "shall have weekly parenting time with the minor children on one evening a week and alternating weekends. The specific times for the weekly visitations should be arranged by the parties, taking into consideration the activities of the three minor children and the work schedules of each parent."

By a decree entered on June 25, 1999, the district court dissolved the parties' marriage, determined that "the parties [were] fit and proper persons to be awarded the joint legal custody of the three minor children, with primary residential care in [Thomas], subject to [Janet's] rights of reasonable and liberal parental access or visitation as set forth in the parties' Parenting Plan," and ordered Janet to pay child support. The decree noted that Janet "[was] a resident in training to be a surgeon and that upon completion of her training[,] the child support obligation shall be reviewed." To that end, the parties agreed to exchange tax returns annually until the "last" minor child reached the age of majority.

The decree incorporated a child support calculation, based upon the joint custody worksheet, requiring Janet to pay $433 per month as support. The worksheet was premised upon Janet's gross monthly income of $2,540 and Thomas' gross monthly income of $7,590.

On August 13, 2001, Thomas filed an application to modify the decree, alleging that Janet had "completed her resident in training and ha[d] gone into private practice, thus raising her income level." Initially, Janet filed only a responsive pleading in the nature of a general denial. She later filed a cross-application to modify the decree, seeking to obtain custody of the oldest child (who has now attained the age of majority) and to adjust the support obligations. Although none of the subsequent orders affirmatively granted Janet's requested change of custody concerning the oldest child, we infer from the child support established that the change took place.

By an order entered on August 15, 2002, the district court established child support retroactive to September 1, 2001, in the amount of $513 for three children, $1,085 for two children, and $1,407 for one child. That order also purported to award Janet $2,000 for the services of "his" attorney.

The child support calculations attached to the August 15, 2002, modification order show a split custody calculation for three children and also attach a basic custody calculation for two children. The basic custody calculation shows Janet's gross monthly income as $10,000, Thomas' gross monthly income as $8,788, and, after various appropriate deductions, the total monthly support for two children as $2,035 and for one child as $1,407. Based upon Janet's 53.24 percent share of the parties' monthly net income, the worksheet calculates her share of the total support for two children to be $1,083.43. However, the calculation fails to apply her percentage share of monthly income to the total monthly support amount for one child, thereby in effect requiring Janet to pay 100 percent of the total monthly support for one child.

By an order nunc pro tunc entered on August 20, 2002, the court recognized a scrivener's error in the earlier order and amended the last paragraph to award attorney fees to Thomas rather than to Janet. Further, the order nunc pro tunc amended the earlier order to expressly state that Janet was the person required to pay child support. However, the order nunc pro tunc did not address the error in calculating child support discussed above.

On August 23, 2002, Thomas filed a motion for "clarification" of the August 15 order. Because the motion for clarification refers to the mistaken award of attorney fees to Janet, we infer that at the time of filing Thomas' motion for clarification he was unaware of the district court's August 20 order nunc pro tunc. Thomas' motion further asserted that "the calculation that the Court uses is for a split custody calculation which should not be used until April 1, 2002[,] when the oldest child went to live with [Janet]" and that "the figures used by the Court are turned around as they relate to one, two, and three children."

By a supplemental order entered on December 18, 2002, which was prepared and submitted by Thomas' attorney and "approved as to form and content" by Janet's attorney, the court established child support to be paid by Janet at the rate of $513 for three children, $1,085 for two children, and $1,407 for one child. Attached to the order were calculations showing the total monthly support amounts of $2,429 for three children, $2,035 for two children, and $1,407 for one child. The calculation then applied Janet's rounded percentage of 54 percent to each of those amounts, resulting in her monthly support share being $1,287 for three children, $1,078 for two children, and $745 for one child. The attachment then set forth a rudimentary split custody calculation, arriving at Janet's net monthly obligation of $508 for three children and calculating back support for 7 months apparently ending with the month of March 2002 at $1,287 per month for three children and for 5 months from April through August 2002 at $508 per month. The total of these amounts is further reduced by sums apparently paid under the decree. The supplemental order ultimately required Janet to pay a judgment of $3,720 representing back child support, which amount was payable in monthly installments of $300.

No appeal was taken from any of these orders.

We now arrive at the proceedings leading to the instant appeal. On February 25, 2005, Janet filed a complaint for modification of the decree, styled as an application to modify. At the time of this filing, the oldest child had attained the age of majority and the second child was nearly 17 years of age. Janet's application focused upon the parties' youngest child, who was then 9 years old. Janet's application set forth five factual allegations regarding a material change in circumstances. In the discovery process, Janet abandoned one of these factual assertions, and we do not address it any further.

Janet alleged that she "ha[d] completed her residency and [was] a surgeon in private practice with a standard 9:00 a.m. to 5:30 p.m. Monday through Friday work week"; that the youngest child had "repeatedly asked [Janet] to be allowed to spend more time with [Janet]"; that despite Janet's requests for a "more equal sharing of parenting time," Thomas had refused to allow more time "than what had been set during [Janet's] residency period"; and that Thomas had "routinely used his title of primary residential parent to relegate [Janet] to the status of visiting non-custodial parent" and had not "allowed [Janet] to be able to participate and share in the parenting of the minor children."

In addition to describing the error in the original calculations, Janet alleged that since the entry of the supplemental order, "the incomes of the parties have changed, . . . which constitutes a change of circumstances requiring a modification of the child support to be paid."

Thomas filed a responsive pleading admitting certain allegations, denying others, and setting forth various affirmative defenses, including the doctrine of res judicata.

On March 10, 2006, Thomas filed a motion for summary judgment. A short time later, Thomas filed a motion to dismiss Janet's application, based upon the doctrine of unclean hands.

On March 24, 2006, the district court conducted an evidentiary hearing on both motions. The documentary evidence received generally consisted of copies of earlier documents in the proceedings, such as the property settlement agreement, the parenting plan, the decree of dissolution, the earlier application to modify, and the various orders previously entered by the court, as well as the parties' recent depositions and certain other documents. To the extent necessary, the documentary evidence will be discussed in the analysis section of this...