Griess v. Griess

• Decision Date: 04 April 2000
• Docket Number: No. A-98-1259.,A-98-1259.
• Parties: Kristin J. GRIESS, now known as Kristin J. Swanson, appellee, v. Bryan GRIESS, appellant.
• Court: Nebraska Court of Appeals

608 N.W.2d 217

9 Neb.App. 105

Kristin J. GRIESS, now known as Kristin J. Swanson, appellee, v. Bryan GRIESS, appellant.

No. A-98-1259.

Court of Appeals of Nebraska.

April 4, 2000.

Douglas Pauley, of Conway, Pauley & Johnson, P.C., Hastings, for appellant.

Gregory C. Damman and Joseph H. Murray, of Germer, Murray & Johnson, Seward, for appellee.

SIEVERS and INBODY, Judges, and BUCKLEY, District Judge, Retired.

SIEVERS, Judge.

This case stems from a child support order entered by the district court for Fillmore County in August 1996, which was admittedly incorrect and substantially so. Bryan Griess paid child support pursuant to this order until April 1998, and it is essentially undisputed that he has paid $18,922 more in child support than the Nebraska Child Support Guidelines would have required during those 20 months. Bryan filed an application to modify the child support order and to secure credit for the overpayment. Although finding that the amount of child support ordered in 1996 was incorrect by over $900 per month, the trial court denied his request for a credit. Bryan has appealed.

BACKGROUND

Bryan and Kristin J. Griess were divorced pursuant to a decree filed in the district court for Fillmore County on July 23, 1986. The Greisses had four children: Jami, Zachary, Cajun, and Nick. The original decree provided that Kristin would have the custody of the children and that Bryan would pay $300 per month in child support. In 1993, Jami's physical custody was changed from Kristin to Bryan, and Bryan's child support obligation was increased to $410 per month due to his increased income.

Zachary also began living with Bryan in August 1995. An order was entered on September 3, 1996, "officially" allowing Zachary to reside with Bryan. At the hearing on that matter, the parties stipulated on the record that "child support will be based under the guidelines promulgated by the Supreme Court on the basis of each of these parties having two minor children living with them." The parties agreed to reduce the calculations and sums to a written stipulation and order. Kristin's former attorney originally miscalculated the child support amount included in the modification order in 1996. At trial, Kristin testified that when she reviewed the draft stipulation with her former attorney and asked why the support had increased so much, he responded that the parties' "incomes had gone up, that the Supreme Court guidelines had increased, and that that was the calculation." Kristin's former attorney forwarded the proposed stipulation and calculation to Bryan's former attorney, who was to approve it. Kristin's former attorney, apparently after no response from Bryan's former attorney, sent the proposed order to the district judge, Orville L. Coady, who signed and entered it without checking the accuracy of the child support calculations against the child support guidelines.

Pursuant to this "stipulation," the court increased Bryan's child support to $1,348 per month for the support of Cajun and Nick commencing on September 1, 1996. Also pursuant to a stipulation by the parties, the court granted Bryan a $136 per month credit from September 1, 1996, to June 1997, for the time that Zachary had already lived with Bryan, making Bryan's child support payments for those months $1,212. He was ordered to pay $1,288 in both July and August 1997, then $1,424 per month thereafter. Bryan did not learn of the increased amount of child support until 2 months later, when he saw it deducted from his paychecks through wage withholding. The calculation was erroneous because it was not based on each parent's having custody of two children; instead, it was calculated as if Kristin had custody of all four of the parties' children. Bryan did contact his former attorney at that time to question the high amount. His former attorney "recalculated" the amount and informed Bryan that it was correct, and Bryan continued to pay the amount ordered by the court.

In October 1997, Bryan contacted another attorney, who recalculated the amount and determined that Bryan had been paying much more than what the guidelines would require. Bryan filed an application for modification shortly thereafter on November 27, 1997. On April 14, 1998, a hearing was held regarding Bryan's application to modify. The district court reduced Bryan's child support obligation from $1,424 to $517 per month commencing May 1, 1998. The court also specifically found that the child support calculation made in August 1996 was incorrect and did not conform to the guidelines, but declined to rule further on the issue of credit at that time.

Another hearing was held in June 1998 to address the overpayment issue and Kristin's proposed move to Grandby, Colorado, a matter not at issue here. At that hearing, Kristin testified as follows regarding her use of the child support money she received from Bryan:

Q. If the Court were to give Mr. Griess a credit against his future child support obligation, and that credit amounted to approximately $318 per month, which would reduce his obligation from the current amount of $517 to approximately $199 ... would you still be able to provide for yourself, your two boys, after this move to Grandby?

A. Of course.

Q. So as far as the child support amount received from Mr. Griess, that's not real relevant as far as providing for the boys, in your budget plan?

A. We have never budgeted for the child support payment, to help raise the children.

After the June hearing, the court entered a "Memorandum Finding" on October 30, 1998, declining to give Bryan any relief for the overpayments of child support that he had made. Bryan timely appealed.

ASSIGNMENTS OF ERROR

Using a number of legal and equitable theories, Bryan asserts that the district court should have granted him a credit toward his future child support obligation in the amount of $18,922 plus interest, which he asserts is equal to the child support that he has overpaid as a result of an incorrect child support calculation made in August 1996.

STANDARD OF REVIEW

The standard of review of an appellate court in child support cases is de novo on the record, and the decision of the trial court will be affirmed in the absence of an abuse of discretion. Gress v. Gress, 257 Neb. 112, 596 N.W.2d 8 (1999); Berg v. Berg, 238 Neb. 527, 471 N.W.2d 435 (1991); Hanthorn v. Hanthorn, 236 Neb. 225, 460 N.W.2d 650 (1990).

Whether overpayments of child support should be credited against future child support is a question of law. See Gress, supra.

To the extent issues of law are presented, an appellate court has an obligation to reach independent conclusions irrespective of the determinations made by the court below. Id.; Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999). We note that the Supreme Court has recently said that the correct standard of review for a trial court's exercise of equity jurisdiction is de novo on the record with independent conclusions of fact and law. Hornig v. Martel Lift Systems, 258 Neb. 764, 606 N.W.2d 764 (2000).

ANALYSIS

A situation involving the substantial overpayment of child support due to an obviously incorrect calculation and court order has not been addressed by the appellate courts of Nebraska. Kristin does not dispute that Bryan was ordered to pay child support in excess of the guidelines. The overpayment is determined as follows:

*Amount He **Amount He Amount Bryan Orders to Pay Actually Paid Should Have Paid ----------------------------------------------------------------------------------- 9/1/96 through 6/1/97 ($1,212 × 10) = $12,120 $11,684 ($96 × 10) = $ 960 7/1/97 1,288 1,348 432 *** 8/1/97 644 674 148 9/1/97 1,424 1,348 432 10/1/97 through 4/1/98 ($1,424 × 7) = 9,968 9,816 ($568 × 7) = 3,976 Totals $25,444 $24,870 $5,948 * Taken from the "Case Transaction History Report" of the Fillmore County District Court. ** Calculated pursuant to the Nebraska Child Support Guidelines based on income stated on 1996 calculation. *** Bryan was required to pay only half of $1,288 for August, because the children were with him for summer visitation.

Thus, the difference between what Bryan should have paid ($5,948) and what he actually paid ($24,870) is $18,922.

The stated principle behind the child support guidelines "is to recognize the equal duty of both parents to contribute to the support of their children." Nebraska Child Support Guidelines, paragraph A. Paragraph C of the guidelines is applied as a rebuttable presumption and provides in part:

All orders for child support obligations shall be established in accordance with the provisions of the guidelines unless the court finds that one or both parties have produced sufficient evidence to rebut the presumption that the guidelines should be applied. All stipulated agreements for child support must be reviewed against the guidelines and, if a deviation exists and is approved by the court, specific findings giving the reason for the deviation must be made.

(Emphasis supplied.)

The lower court has acknowledged its failure to follow the guidelines and the mandated procedure quoted above. The court stated in its journal entry filed April 28, 1998, that "[t]he Court specifically finds that the split custody calculation as attached to the order dated August 19, 1996 was incorrect in its computation causing an overstatement in the amount of child support due and owing by the Respondent to the Petitioner." At the time of this journal entry, the court declined to rule on the matter of a credit, but after another hearing, the court, in its "Memorandum Finding," filed October 30, 1998, declined to give Bryan any relief, although stating that the trial court "was never aware or attempted to calculate the form as it should have been." We take this as an admission that the court did not check the figures and calculation presented to it by Kristin's former attorney, nor did it do its own child support worksheet.

The overpayment...