Noonan v. Noonan, S-99-1013.

• Citation: 261 Neb. 552,624 N.W.2d 314
• Decision Date: 06 April 2001
• Docket Number: No. S-99-1013.,S-99-1013.
• Parties: Jo Ann NOONAN, Appellant, v. Michael J. NOONAN, Appellee.
• Court: Supreme Court of Nebraska

624 N.W.2d 314
261 Neb. 552

Jo Ann NOONAN, Appellant,
v.
Michael J. NOONAN, Appellee

No. S-99-1013.

Supreme Court of Nebraska.

April 6, 2001.

624 N.W.2d 319

Wayne E. Janssen, Lincoln, for appellant

Paul M. Conley, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

GERRARD, J.

I. INTRODUCTION

Jo Ann Noonan (mother) filed a petition seeking modification of a child support order entered in the dissolution of her marriage to Michael J. Noonan (father). After a hearing, the district court found no material change in circumstances and denied the mother's request for an increase in child support. The mother appeals, contending that the district court erred in not finding a 10-percent variance in the father's child support obligation by assigning the tax exemptions for the two children to her and not the father, not including the father's overtime wages and capital gains in his gross income, including the father's student loan payments as a deduction, and improperly assigning and calculating health insurance costs as a deduction from income. The mother also argues that the modification should be retroactive to the date of filing and that she should be awarded attorney fees. Based on our de novo review, we determine that there was more than a 10-percent variation in the child support obligation of the father, and we modify the child support order retroactive to the first day of the month following the filing date of the application for modification.

II. BACKGROUND

The father and mother were married in 1985 and had two children. After their marriage was dissolved on August 31, 1995, certain issues were appealed to the Nebraska Court of Appeals which entered a memorandum opinion and judgment on appeal on April 1, 1997. Noonan v. Noonan, 5 Neb.App. xv (case No. A-95-1153, Apr. 1, 1997). The mother was awarded custody of the two children, and the father was ordered to pay child support in the amount of $740 per month and to provide health insurance for the children and was given the right to claim the children as tax exemptions. In calculating child support, the father's mandatory overtime was included as income and his student loan payments were not allowed as deductions.

The mother filed this action for modification of child support in Lancaster County on December 30, 1997. She claimed a material change in circumstances had occurred since the date of dissolution in that the father's income had increased and the application of the child support guidelines would result in a variation of more than 10 percent in the father's child support obligation. The mother also alleged that a material change in circumstances had occurred with respect to health insurance and that the responsibility for health insurance should be given to her. The mother filed a motion for temporary allowances requesting a temporary increase in child support, which the district court denied.

On September 17, 1998, the mother's attorney filed a motion to set the matter for trial, and a modification hearing was held on February 9, 1999. At the modification hearing, evidence was adduced relating to the father's income and deductions. First, the father testified as to how much is deducted from his monthly paycheck for health care expenses. The father, however, did not show how much of the health care cost is attributable to his two children.

Next, the father testified that at the time of the modification hearing, he had worked approximately 6 ½ years for his current employer. The father testified that his hourly rate of pay at the time of the hearing was $19.86. He stated that he usually receives pay raises each year and that his last raise was a 2-percent increase. Additionally, the father testified

624 N.W.2d 320

that he is not required to work overtime, as he was required to do at the time the original divorce decree was entered. While the overtime hours are no longer mandatory, the father's testimony revealed that he continues to work overtime at a rate of 5 hours per pay period (every 2 weeks)

Each pay period, a percentage of the father's wages are paid in the form of company stock. The father testified that he sells the stock he receives from his employer each year. The yearly stock sales have resulted in the father's receiving capital gains income for the 2 years prior to the modification hearing. In 1996 and 1997, the father received capital gains of $979 and $888 respectively from the sale of stock he had received from his employer.

The father also has student loans that he acquired during his marriage to the mother. The father continues to make payments on the student loans in the amount of $87.32 per month. There is no evidence in the record regarding what the loans were used for during the Noonans' marriage, no evidence as to what benefit the father received from the loans, nor is there evidence as to how much of the loan is principal or interest.

The mother testified that at the time of the modification hearing, she had been working for the State of Nebraska for approximately 12 years. There was also evidence adduced at trial indicating that the mother makes approximately $9.48 per hour as a secretary.

Since the dissolution, there have been issues regarding the communication between the father and the mother with respect to health insurance for the children. The mother testified that she had difficulties filing claims because the father's employer changed insurance providers and that he failed to inform her of the changes. The father, on the other hand, testified that he gave the mother copies of the new insurance cards as soon as he discovered his employer had changed insurance providers. Because the insurance companies with whom the mother filed claims were not always the most current insurance company through the father's employer, the health care provider would turn the matter over to a collection agency and the mother would receive collection notices from the agencies. She testified that since these occurrences, she has been unable to obtain credit cards.

The father testified that he knows nothing about when or where his children go for health care services or what claims are filed with his insurance until he receives a statement from his insurance company. He also testified that he did not receive copies of his children's past-due medical bills until the collection agencies called him. The father also claims that he is now in the habit of calling medical care providers to be sure that he is up to date with payments.

There is no evidence showing that health insurance coverage stopped at any time or that the children suffered a reduction in health care services (although, at one point, one of the children had been dropped from the father's health insurance coverage for a short period of time due to a mistake by the father's employer. The claims that had been refused were eventually paid).

On May 4, 1999, the district court entered its order finding that there was not a 10-percent change in the father's child support obligation through the application of the Nebraska Child Support Guidelines (Guidelines). The district court's calculation resulted in the father's child support obligation increasing to $805.42, just short of $814, which would be the 10-percent variation required to raise a rebuttable presumption of a material change in circumstances under the Guidelines. Thus, the district court found no material change in circumstances and denied the request for an increase in child support.

In its calculations, the district court did not include the father's overtime wages as

624 N.W.2d 321

income, reasoning that his overtime was considerably less than in past years and that his employer did not require overtime. Also, the court included a deduction for student loan payments from the father's income, reasoning that the Court of Appeals recognizes the payment of student loans as a legitimate deduction from income under the Guidelines. The worksheet attached to the district court's order, which is incorporated by reference into the order, shows that the children's income tax exemptions were assigned to the mother in the calculation and not to the father as in the original decree. The shift of exemptions was not requested by either party

The mother's request that she be given responsibility for the children's health insurance, instead of the father, was denied by the district court. The court stated that both parties have legitimate reasons to carry the insurance and that both had given reasons why the other party would not be reliable in carrying the insurance. The district court also denied the mother's request for attorney fees.

The mother filed a motion for new trial, and the district court overruled her motion in all relevant respects. This timely appeal followed.

III. ASSIGNMENTS OF ERROR

The mother assigns, restated and renumbered, that the district court erred in (1) failing to transfer the obligation of health insurance to her; (2) the calculation of child support by assigning the tax exemptions for the two children to her and not the father, not including the father's overtime wages and capital gains from the sale of stock in his gross income, including the father's student loan payments as a deduction from income, and failing to require the father to show that his health insurance deduction was fully attributable to the health insurance cost for their two children; (3) failing to award temporary child support; (4) failing to modify the child support retroactive to the date of filing for modification; and (5) failing to award her attorney fees.

IV. STANDARD OF REVIEW

Modification of a dissolution decree 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. Hartman v. Hartman, 261 Neb. 359, 622 N.W.2d 871(2001);...