McDonald v. Del Mcdonald

• Decision Date: 10 December 2013
• Docket Number: No. A–12–1058,A–12–1058
• Citation: 840 N.W.2d 573,21 Neb.App. 535
• Parties: Coleen McDonald, Appellee, and State of Nebraska, Intervenor–Appellee, v. Del McDonald, Appellant.
• Court: Nebraska Court of Appeals

21 Neb.App. 535

840 N.W.2d 573

Coleen McDonald, Appellee,andState of Nebraska, Intervenor–Appellee,

v.Del McDonald, Appellant.

No. A–12–1058

Court of Appeals of Nebraska.

Filed December 10, 2013

Appeal from the District Court for Douglas County: J. Russell Derr, Judge. Affirmed.

Avis R. Andrews, Fremont, for appellant.

Ronald E. Frank and Mary M. Schott, Omaha, of Sodoro, Daly & Sodoro, P.C., for appellee.

Julie Fowler, of Child Support Enforcement Office, for intervenor-appellee.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

Syllabus by the Court

1. Modification of Decree: Visitation: Child Support: Appeal and Error. Issues involving the modification of a divorce decree, parenting time, and the amount of child support are initially entrusted to the discretion of the district court, whose determinations in these matters are reviewed de novo on the record for an abuse of discretion.

2. Child Support. The trial court's discretion to award child support extends to its determination that the child support award should be retroactive.

3. Attorney Fees: Appeal and Error. An appellate court reviews a trial court's award of attorney fees for an abuse of discretion.

4. Courts: Words and Phrases. An abuse of discretion occurs when a trial court acts or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives the litigant of a substantial right or just result.

5. Modification of Decree: Child Custody. Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action.

6. Modification of Decree: Words and Phrases. A material change in circumstances means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently.

7. Modification of Decree. Changes in circumstances which were within the contemplation of the parties at the time of the decree are not material changes in circumstances for purposes of modifying a divorce decree.

8. Modification of Decree: Child Custody: Proof. Prior to the modification of a child custody order, two steps of proof must be taken by the moving party. First, the moving party must show a material change in circumstances that affects the best interests of the child. Second, the moving party must prove that changing the child's custody is in the child's best interests.

9. Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.

10. Modification of Decree: Child Support: Proof. A parent seeking to modify a child support award must show a material change in circumstances, including changes in the financial position of the parent obligated to pay support.

11. Child Support: Rules of the Supreme Court. Generally, child support payments should be set according to the guidelines established pursuant to Neb.Rev.Stat. § 42–364.16 (Reissue 2008).

12. Child Support: Rules of the Supreme Court: Presumptions. Although the child support guidelines are not to be applied with blind rigidity, child support shall be established in accordance with the 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.

13. Modification of Decree: Child Custody. If trial evidence establishes a joint physical custody arrangement, courts will so construe it, regardless of how prior decrees or court orders have characterized the arrangement.

14. Child Custody: Child Support: Rules of the Supreme Court. Where parties exercise joint physical custody, the trial court must use the joint custody worksheet of the child support guidelines to calculate support.

15. Child Custody: Words and Phrases. Joint physical custody is generally defined as joint responsibility for minor day-to-day decisions and the exertion of continuous physical custody by both parents over a child for significant time periods.

16. Appeal and Error. Generally, a party cannot complain of error which the party has invited the court to commit.

17. Divorce: Minors: Stipulations. Parties in a proceeding to dissolve a marriage cannot control the disposition of matters pertaining to minor children by agreement.

18. Divorce: Modification of Decree: Child Support. The paramount concern and question in determining child support, whether in the initial marital dissolution action or in the proceedings for modification of decree, is the best interests of the child.

19. Child Support. In determining whether to order retroactive support, a court must consider the parties' status, character, situation, and attendant circumstances. As part of that consideration, the court must consider whether the obligated party has the ability to pay the lump-sum amount of a retroactive award.

20. Modification of Decree: Child Support: Time. Absent equities to the contrary, modification of a child support order should be applied retroactively to the first day of the month following the filing date of the application for modification.

21. Child Support: Child Custody. In the determination of child support, the children and the custodial parent should not be penalized by delay in the legal process, nor should the noncustodial parent gratuitously benefit from such delay.

22. Taxation: Child Support: Alimony: Child Custody. Because a tax dependency exemption is an economic benefit nearly identical in nature to an award of child support or alimony, a trial court may exercise its equitable powers to allocate dependency exemptions between the custodial and noncustodial parent.

23. Taxation: Child Custody: Presumptions. Although a custodial parent is presumptively entitled to a tax dependency exemption, a trial court may use its equitable powers to allocate the exemption to a noncustodial parent if the situation of the parties so requires.

24. Attorney Fees. Attorney fees are recoverable in Nebraska only when provided for by law or allowed by custom.

25. Attorney Fees: Child Support. Attorney fees and costs are allowed in child support cases brought by a child's mother, father, guardian or next friend, the county attorney, or other authorized attorney.

26. Attorney Fees. The award of attorney fees depends on multiple factors that include the nature of the case, the services performed and results obtained, the earning capacity of the parties, the length of time required for preparation and presentation of the case, customary charges of the bar, and general equities of the case.

27. Attorney Fees: Courts. Trial courts and appellate courts are equally regarded as experts at determining the value of legal services.

Riedmann, Judge.

I. INTRODUCTION

Del McDonald appeals from the decision of the district court for Douglas County modifying his child support obligation, awarding attorney fees to his former wife, and denying his request for custody modification. We determine that the district court did not abuse its discretion in refusing to modify child custody, in modifying Del's child support obligation, or in awarding attorney fees. Accordingly, we affirm the trial court's decision.

II. BACKGROUND

Del and Coleen Spencer, formerly known as Coleen McDonald, married in March 1999 and divorced in July 2009. Two children were born during the marriage–a son born in 1999 and a daughter born in 2002.

In the original divorce decree, the court awarded Coleen sole legal and physical custody of the parties' two children, subject to Del's parenting time. Del's parenting time consisted of alternating weekends, Wednesday nights, rotating holidays, and extended time during the summer. Del's parenting rights also included a right of first refusal when Coleen worked overnight.

To facilitate their shared parenting responsibilities, the parenting plan established rules for Del and Coleen to aid them in communicating. The rules eliminated face-to-face interaction during custody exchanges, established that the parties would communicate professionally through e-mail or voice-mail, and ordered the parties to sit apart from each other at school activities.

In addition to sole custody, the decree also awarded Coleen $69 per month in child support. The decree ordered Coleen to maintain health and medical insurance for the children unless it was available to Del at a lower rate. Del's child support obligations were calculated based on his status as a full-time student with minimal income.

About a year after the decree was entered, Del obtained full-time employment as a respiratory therapist at a Bellevue medical center and occasionally worked additional shifts at a hospital in Blair. Because Del's income increased, the State of Nebraska intervened in February 2011 to ask the court to recalculate Del's child support obligation. Del filed an answer and counterclaim alleging that there had been a material change in circumstances which warranted an award of full custody to him. He based his modification request upon contact that the children had with Coleen's then boyfriend, who Del claimed had a history of domestic abuse and who transported the children while he was consuming alcohol. He further claimed that Coleen was frustrating his relationship with the children by refusing telephone contact and denying him the right of first refusal to care for the children when Coleen was at work.

At trial, the parties addressed both child support and custody issues. To help determine the proper amount of child support, both parties submitted proposed calculations to the court. The State calculated Del's income as $24 per hour full time and Coleen's income as $23.67 per hour full time. Both parties stipulated to the exhibits containing the income calculations. Both parties showed they were...