Hartman v. Hartman
|09 March 2001
|Ellen Teresa HARTMAN, Appellant, v. Rodney R. HARTMAN, Appellee.
|Nebraska Supreme Court
George G. Vinton, North Platte, for appellant.
R. Bradley Dawson, of Clough, Dawson, Piccolo & Jones, North Platte, for appellee.
In this modification of a divorce decree case, Ellen Teresa Hartman (Terri) appeals the order of the district court for Lincoln County requiring her former husband, Rodney R. Hartman, to pay $282 per month in child support for their daughter, Jacqueline. Terri contends that the amount of child support should be increased because Rodney should not have received credit for Social Security dependency benefits paid to Terri on behalf of Jacqueline as a result of Terri's disability. In other words, Terri asserts that the benefits should have been treated as Terri's income. Terri also contends that the district court erred in failing to require Rodney to pay medical bills incurred by Jacqueline while she was temporarily in Rodney's custody and in failing to award Terri attorney fees. We affirm in part and reverse in part the order and remand the cause to the district court with directions to enter an order requiring Rodney to pay $467 per month in child support.
During their marriage, Terri and Rodney had two children, Robert and Jacqueline. Pursuant to a May 29, 1997, decree of dissolution, Terri was awarded custody of Jacqueline and Rodney was awarded custody of Robert. A split custody child support calculation was prepared, and Rodney was ordered to pay child support to Terri in the amount of $309 per month.
On August 4, 1998, Rodney filed an application for change of custody requesting that he be awarded custody of Jacqueline. Rodney asserted the existence of a material and substantial change of circumstances, including the onset of Terri's disability. The district court entered an order that same day granting Rodney temporary custody of Jacqueline and suspending his child support obligation.
On May 24, 1999, Terri filed a motion to reinstate the original custody order and to reinstate and modify child support consistent with the Nebraska Child Support Guidelines (Guidelines). Terri asserted that child support would need to be recalculated because Robert would be turning 19 in July.
On July 1, 1999, Rodney filed a motion to dismiss his application for change of custody. The motion was granted July 2, and Jacqueline returned to live with Terri.
On August 9, 1999, Terri filed an amended motion to reinstate the original child custody and support order and requested that the court order Rodney to pay for medical expenses incurred by Jacqueline for the period she was in Rodney's custody prior to July 2. In her motion, Terri also sought an order directing Rodney to pay child support to Terri of $309 pursuant to the original order for July 1999 and to modify the amount of child support upward starting on August 1.
A hearing was held on Terri's motion October 4, 1999, at which hearing Terri established that she was receiving $655 per month in Social Security benefits as a result of her disability. In addition, Terri was receiving $327 per month in Social Security dependency benefits on behalf of Jacqueline due to Terri's disability.
On October 19, 1999, the district court ordered Rodney to pay child support in the amount of $220 per month as of July 1, 1999. Throughout its calculation of child support, the district court declined to treat the dependency benefits received on behalf of Jacqueline as income attributable solely to Terri. The particular treatment of the benefits in the district court's calculation is discussed in more detail in the "Analysis" section below.
Terri filed a motion for new trial on October 26, 1999, asserting (1) that Rodney's net monthly income had not been properly annualized and (2) that the Social Security dependency benefits received on behalf of Jacqueline should have been treated as Terri's income. The district court granted the motion only to the extent that child support should be recalculated using the properly annualized net monthly income of $2,002 per month for Rodney. The district court entered an order on November 30 increasing the amount of Rodney's child support obligation from $220 to $282; however, the district court did not change its method of accounting for the Social Security dependency benefits. Terri appeals the district court's order.
Terri asserts that the district court erred in (1) failing to treat Social Security dependency benefits paid to Terri on behalf of Jacqueline as a result of Terri's disability as part of Terri's income, (2) failing to require Rodney to pay medical bills incurred by Jacqueline while she was in his custody pursuant to a temporary custody order, and (3) failing to award Terri attorney fees.
Modification of the amount of child support payments is entrusted to the discretion of the trial court, 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. Sears v. Larson, 259 Neb. 760, 612 N.W.2d 474 (2000).
Whether Social Security dependency benefits received on behalf of a child are considered income of the parent whose disability resulted in the payment of benefits is a question of law. 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. Gress v. Gress, 257 Neb. 112, 596 N.W.2d 8 (1999).
A district court's award or denial of attorney fees in a proceeding to modify a divorce decree will be upheld absent an abuse of discretion. Groseth v. Groseth, 257 Neb. 525, 600 N.W.2d 159 (1999).
Social Security Dependency Benefits.
A party seeking to modify a child support order must show a material change in circumstances which has occurred subsequent to the entry of the original decree or a previous modification and was not contemplated when the decree was entered. Gammel v. Gammel, 259 Neb. 738, 612 N.W.2d 207 (2000). Neither party disputes on appeal that a modification was appropriate.
Terri first asserts that the district court erred in failing to treat the Social Security dependency benefits Terri received on behalf of Jacqueline because of Terri's disability as part of Terri's income. In calculating Rodney's child support obligation pursuant to the Guidelines, the district court treated the benefits in the following manner:
(1) Percentage of Contribution. The court did not include the benefits in either Terri's or Rodney's net monthly income when calculating the percentage of contribution for each parent.
(2) Combined Monthly Net Income. The court added the benefits to Terri's and Rodney's monthly net incomes in order to arrive at the combined monthly net income.
(3) Monthly Support. The court used the combined monthly net income, which included the benefits, to determine monthly support from table 1 of the Guidelines.
(4) "Reduced" Monthly Support. The court subtracted the benefits from the monthly support figure found in table 1.
(5) Each Parent's Monthly Share. The court multiplied the "reduced" monthly support by each parent's percentage of contribution to arrive at each parent's monthly share, with Rodney's child support obligation's being his monthly share.
The district court patterned its calculation after the approach used by the Nebraska Court of Appeals in Ward v. Ward, 7 Neb.App. 821, 585 N.W.2d 551 (1998), which involved, inter alia, Social Security benefits received on behalf of a child by the custodial father based on the earnings of a deceased parent.
Terri urges that instead of the approach detailed above that was used by the district court, the dependency benefits received on behalf of Jacqueline should have been treated as part of Terri's net monthly income and that the monthly support figure should not have been reduced by the amount of the benefits. The result of such treatment, Terri asserts, would be to increase Rodney's child support obligation from $282 to $471 per month. Under the treatment urged by Terri, Rodney's monthly net income is $2,002 and Terri's monthly net income, including the $327 of Social Security dependency benefits received on behalf of Jacqueline, is $982. Using the combined monthly net income of $2,984, Terri found total monthly support to be $703. Multiplying the total monthly support of $703 by Rodney's contribution of 67 percent, Terri asserts that Rodney's monthly child support obligation should be $471 per month. We agree that the appropriate treatment of the Social Security dependency benefits is that urged by Terri.
The district court based its calculation on the approach used by the Court of Appeals in Ward v. Ward, supra.
However, Ward and the instant case are distinguishable. The parties in Ward were the child's adoptive parents, and the benefits received on behalf of the child were based on the earnings of a deceased parent who obviously was not a party to the case. In the present case, the benefits received on behalf of Jacqueline are based on Terri's disability and her prior earnings. The present case and Ward further differ. In Ward, the benefits could not be directly attributed as income to one or the other of the parties because the benefits were based on a deceased parent's earnings, whereas, in the instant case, the dependency benefits are in lieu of a party's income.
The approach taken by the Court of Appeals in Ward was a deviation from the Guidelines. In general, child support payments should be set according to the Guidelines established pursuant to Neb. Rev.Stat. § 42-364.16 (Reissue 1998). Sears v. Larson, 259 Neb. 760, 612 N.W.2d 474 (2000). The Guidelines permit deviations...
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