Hajenga v. Hajenga
| Decision Date | 15 October 1999 |
| Docket Number | No. S-98-326.,S-98-326. |
| Court | Nebraska Supreme Court |
| Parties | Edward G. HAJENGA, appellee, v. Chin G. HAJENGA, appellant. |
J. Bruce Teichman and Sam Houston, Beemer, of Feller & Teichman, P.C., for appellant.
Steven M. Watson, P.C., of Marks Clare & Richards, Omaha, for appellee.
Chin G. Hajenga appeals from the decree of dissolution of marriage entered in the district court for Douglas County, Nebraska. Chin claims inadequacy in the amount of child support which Edward G. Hajenga was ordered to pay and error in dividing the marital assets. On our own motion, we removed the matter to this court pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals.
Edward and Chin were married on April 6, 1987. During the course of their marriage, the couple had three children. In April 1996, Edward moved out of the family residence. A month later, Edward moved in with Robin Taylor, a mother with custody of three minor children. Edward and Robin subsequently had a child of their own. Edward and Robin's child, as well as Robin's other three children, reside with Edward and Robin.
On April 29, 1996, Edward filed a petition of dissolution of marriage against Chin in the district court. The petition requested that the trial court equitably distribute the property and debts of the parties; award Chin the temporary and permanent care, custody, and control of the three minor children of the parties; and establish a schedule of visitation rights and child support payments. At trial, Edward asked the trial court, in determining his child support obligation, to take into consideration the fact that he has a fourth child that he supports. In regard to the property and debts of the parties, Edward testified that after he moved out of the family residence, he had to borrow money from his mother and that he had to pay this money back to his mother.
The trial court entered a decree of dissolution of marriage awarding Chin the care, custody, and control of the minor children and found that the Nebraska Child Support Guidelines did not apply in this case. The trial court ordered Edward to pay $630 per month in child support. The trial court also distributed the property and debts of the parties and in doing so, treated the money Edward owed his mother as a marital debt and used it in determining the division of the parties' property and debts.
Chin filed a motion for new trial which was overruled. Chin timely appealed.
Chin assigns, renumbered and restated, that the trial court erred in (1) deviating from the guidelines; (2) not stating that one or both parties had produced sufficient evidence to rebut the presumption that the guidelines should be applied and in not stating the specific grounds for the deviation from the guidelines or, alternatively, in not completing a "Deviations to Child Support Guidelines Worksheet 5"; (3) not stating the amount of support that would have been required under the guidelines absent the deviation; (4) not specifying in its order the amount of child support owed by Edward when one or more children no longer qualify for child support; and (5) making a determination that Edward owed his mother $20,000 to $25,000 and that this was a marital debt to be included in calculating an equitable division of the parties' property and debts.
In actions for dissolution of marriage, an appellate court reviews the case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Thiltges v. Thiltges, 247 Neb. 371, 527 N.W.2d 853 (1995); Jirkovsky v. Jirkovsky, 247 Neb. 141, 525 N.W.2d 615 (1995). In a review de novo on the record, we reappraise the evidence as presented by the record and reach our own independent conclusions with respect to the matters at issue. Tyler v. Tyler, 253 Neb. 209, 570 N.W.2d 317 (1997); Thiltges v. Thiltges, supra.
When evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witness and accepted one version of the facts rather than another. Thiltges v. Thiltges, supra; Jirkovsky v. Jirkovsky, supra.
Chin first claims that the trial court erred in deviating from the guidelines. Chin further argues that because the trial court deviated from the guidelines, paragraph C of the guidelines required the trial court to state in the decree that it found that one or both parties had produced sufficient evidence to rebut the presumption that the guidelines should be applied and to state the reason the trial court deviated from the guidelines or that alternatively, the trial court should have completed worksheet 5. In addition, Chin alleges that the decree should have stated the amount of support that would have been required under the guidelines absent the deviation.
(Emphasis supplied.)
We interpret paragraph C of the guidelines to require that when child support orders deviate from the guidelines, a trial court must state the reasons for the deviation in the decree or order or that alternatively, it must complete worksheet 5 and file it in the court file. While paragraph C provides that either stating the reason for the deviation in the decree or order or completing worksheet 5 is sufficient, we encourage trial courts to do both. In addition, paragraph C requires that the decree or order state the amount of support that would have been required under the guidelines absent the deviation.
In the present case, the trial court's decree states that the guidelines do not apply in the instant case, but fails to state the reason for the deviation and the trial court did not complete a worksheet 5. The trial court also failed to state the amount of support that Edward would have been required to pay under the guidelines.
The most logical explanation for the trial court's deviation is that it must have considered the support Edward provides for the child he fathered with Robin. However, even in cases such as this where a possible reason for the deviation can be discerned from the record, the reason still remains a guess or is speculation on our part. We will not speculate as to why a trial court did what it did. While we refuse to come to any conclusion as to why the trial court in the instant case deviated from the guidelines, we will discuss whether a trial court can consider a party's subsequent child in determining child support for purposes of remand.
In general, child support payments should be set according to the guidelines established pursuant to Neb. Rev.Stat. § 42-364.16 (Reissue 1998). Knippelmier v. Knippelmier, 238 Neb. 428, 470 N.W.2d 798 (1991). Section 42-364.16 provides that child support shall be established in accordance with the guidelines unless a court finds that one or both parties have produced sufficient evidence to rebut the presumption that the application of the guidelines will result in a fair and equitable child support order. Knippelmier v. Knippelmier, supra.
Thus, the trial court may deviate from the guidelines in an individual case if the application of the guidelines would be unjust or inappropriate.
The guidelines are not to be applied with blind rigidity:
[A] trial judge does not satisfy his duty to equitably determine child support by blindly following suggested guidelines. The Nebraska Child Support Guidelines are, by their very nature, simply guidelines.... The court may deviate from the guidelines where one or both parties have provided sufficient evidence to rebut the presumption that the guidelines should be applied. Thus, the guidelines offer flexibility and guidance, with the understanding that not every child support scenario will fit neatly into the calculation structure.
Czaplewski v. Czaplewski, 240 Neb. 629, 631, 483 N.W.2d 751, 752 (1992).
In determining the amount of a child support award, a trial court must consider the status, character, and situation of the parties and attendant circumstances, including the financial...
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