Knippelmier v. Knippelmier, 89-135
| Decision Date | 21 June 1991 |
| Docket Number | No. 89-135,89-135 |
| Citation | 470 N.W.2d 798,238 Neb. 428 |
| Parties | Kurt A. KNIPPELMIER, Appellant, v. Kimberly Ann KNIPPELMIER, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Divorce: Appeal and Error. In appeals involving actions for dissolution of marriage, the Supreme Court's review is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. When the evidence is in conflict, the Supreme Court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.
2. Child Support: Rules of the Supreme Court: Presumptions. Child support shall be established in accordance with the Nebraska Child Support Guidelines unless the 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.
3. Child Support: Rules of the Supreme Court. The court may deviate from the Nebraska Child Support Guidelines whenever the application of the guidelines in an individual case would be unjust or inappropriate.
4. Child Support. In determining the amount of a child support award, the trial court must consider the status, character, and situation of the parties and attendant circumstances, including the financial condition of the parties and the estimated cost of support of the children.
Louie M. Ligouri, Auburn, for appellant.
Steven J. Mercure, of Nestor & Mercure, Tecumseh, for appellee.
This is an action for dissolution of marriage. Petitioner-appellant husband, Kurt A. Knippelmier, and respondent-appellee wife, Kimberly Ann Knippelmier, were married on August 27, 1983. Two children were born to the marriage: Stanley Kyle, born June 24, 1986, and Kristin Ann, born January 23, 1988. The marriage was dissolved by a decree entered by the district court for Nemaha County, Nebraska, on February 8, 1989.
Pursuant to a property settlement agreement approved by the district court, the husband was awarded a 1982 Ford Bronco; the assets of his automotive repair business, which he and his father operate as a partnership; certain real estate, including the family home; and household personalty. The Bronco, the real estate, and the husband's interest in the automotive repair business have a combined total value of $33,800. The husband assumed payment for all the parties' debts, totaling $32,031.33, which were incurred prior to their separation on September 9, 1988. The wife received a 1979 Oldsmobile station wagon worth $2,000, a life insurance policy, her 401K retirement plan, and household goods. The parties agreed that no alimony would be paid. The parties also agreed that the wife would have custody of the children, subject to specific visitation in the husband.
After trial, the court ordered the husband to pay child support of $113.75 per child plus $150 per month toward the child-care expenses. The husband timely appealed, contending that the trial court erred in (1) setting child support in an amount above that established by the Nebraska Child Support Guidelines, (2) fixing day-care expenses in an excessive amount, and (3) ordering an automatic increase in child support to be payable beginning September 1, 1995. We determine appellant husband is correct only in his third assignment of error and affirm the judgment of the trial court, as modified herein.
In appeals involving actions for dissolution of marriage, the Supreme Court's review is de novo on the record to determine whether there has been an abuse of discretion by the trial judge, whose judgment will be upheld in the absence of an abuse of discretion. When the evidence is in conflict, the Supreme Court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. LaBenz v. LaBenz, 237 Neb. 231, 465 N.W.2d 726 (1991).
The record shows the following: The parties were married on August 27, 1983, and are the parents of two children, ages 4 and 3. They agreed that the wife would receive custody of the children and that neither party would pay alimony to the other.
Both parties have high school educations. During the marriage, the wife was the primary wage earner and was employed by a Hinky Dinky supermarket in Auburn. Shortly before trial, the wife moved to Lincoln, and she began employment with Hinky Dinky in Lincoln 5 days before the trial. At the time of trial, she earned $5.25 per hour, had a monthly gross income of $910, and estimated her child-care costs in Lincoln would be $448 per month. While employed in Auburn, the wife earned $700 per month, with child-care expenses of either $380 or $288 per month. The difference in those amounts is not explained, but may be connected with the fact that while in Auburn, the wife had assistance from relatives.
The husband testified that he is an able-bodied man and is capable of gainful employment. He had no taxable income in 1985, earned approximately $5,000 in 1986, and earned $3,276 in 1987. At the time of trial, the husband was self-employed in an automotive repair business with his father. The business had been in operation for 2 years. At the time of trial, the husband's affidavit showed estimated gross earnings from the automotive repair business were $615 per month, and his estimated monthly net income was $465.
Based on the foregoing, the district court found that "the Petitioner has the same earning capacity and ability as the Respondent and the net income of the Respondent is presently approximately $750.00 per month." The husband was ordered to pay child support of $113.75 per month per child
until the youngest child ... born January 23, 1988, is enrolled and attending school, at which time the [husband] shall pay ... the sum of $150.00 per child per month for a total sum of $300.00 per month for the support of the above-named minor children of the parties, payable on the 1st day of September, 1995, and continuing thereafter....
The court also ordered the husband to pay $150 per month for child-care expenses "until both of the minor children of the parties hereto are regularly enrolled in and attending school." The court also specified certain visitation adjustments in the support order.
In general, child support payments should be set according to the guidelines established by the Nebraska Supreme Court.
Neb.Rev.Stat. § 42-364(4) (Reissue 1988) provides:
In determining the amount of child support to be paid by a parent, the court shall consider the earning capacity of each parent and the guidelines provided by the Supreme Court pursuant to section 42-364.16 for the establishment of child support obligations....
Neb.Rev.Stat. § 42-364.16 (Reissue 1988) provides:
The Supreme Court shall provide by court rule, as a rebuttable presumption, guidelines for the establishment of all child support obligations. Child support shall be established in accordance with such guidelines unless the 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.
Thus, the court may deviate from the guidelines whenever the application of the guidelines in an individual case would be unjust or inappropriate.
The child support guidelines of the Nebraska Supreme Court apply to any child support award made from and after October 1, 1987. Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122 (1991); Formanack v. Formanack, 234 Neb. 325, 451 N.W.2d 250 (1990).
This case presents a contrast with Stuczynski v. Stuczynski, supra, where the husband worked two jobs to support his wife and children. In the instant case, for reasons not shown, the husband works, if at all, at jobs paying less than minimum wage, thus leaving the support of his children primarily to his wife.
Reviewing the record de novo, we find that there is sufficient evidence in the record to rebut the presumption that the child support guidelines should be applied in this case. Although there is no specific evidence in the record to support the trial court's conclusions that "in this country there still is no [parity] in opportunities for jobs between men and women" and that "there are ten times the opportunities out there for [petitioner] to make twice as much as [respondent is] making, with less opportunities," the court properly considered the fact that the husband admitted he is able-bodied and is capable of gainful employment, with some skills in the automobile repair business.
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