Peter v. Peter
| Decision Date | 11 January 2002 |
| Docket Number | No. S-00-1193.,S-00-1193. |
| Citation | 262 Neb. 1017,637 N.W.2d 865 |
| Parties | Cynthia S. PETER, Appellant and Cross-Appellee, v. James B. PETER, Appellee and Cross-Appellant. |
| Court | Nebraska Supreme Court |
John W. Ballew, Jr., of Ballew, Schneider & Covalt, Lincoln, for appellant.
James E. Gordon, of DeMars, Gordon, Olson, Shively & Zalewski, Lincoln, for appellee.
Cynthia S. Peter and James B. Peter were divorced in June 1998. In October 1999, Cynthia brought an action in Lancaster County District Court to modify the decree of dissolution, requesting an increase in James' child support obligation. In January 2000, James filed his own petition to modify, alleging that Cynthia had fraudulently failed to disclose certain assets at the time their marital estate was divided. The district court denied Cynthia's petition for modification and granted James' petition in part. Cynthia appealed, and James cross-appealed.
While the case was on appeal, James filed with the district court a motion to amend the bill of exceptions. The district court denied the motion. James also appeals the district court's refusal to grant his motion to amend the bill of exceptions.
Cynthia and James were married in 1974 in Lincoln, Nebraska. The marriage was dissolved on June 10, 1998, when the Lancaster County District Court entered a decree of dissolution, which incorporated the parties' property settlement, custody, and support agreement. In the decree, the district court granted legal and physical custody of the Peters' two children to Cynthia and ordered James to pay a total of $731 per month in child support.
On October 25, 1999, Cynthia filed a petition for modification of the decree of dissolution in Lancaster County District Court. She requested that the district court increase James' child support obligation and apply it retroactively.
On January 6, 2000, James filed his own petition to modify the decree of dissolution, alleging in part that Cynthia fraudulently failed to disclose a transition account she possessed at the time the parties entered into the property settlement agreement. James claimed the account, which was maintained through Cynthia's employer, Bryan Memorial Hospital, was unknown to him at the time the decree of dissolution was entered. James requested that the district court modify the decree to award him one-half the gross value of the account as of June 10, 1998.
On January 25, 2000, Cynthia filed an answer and cross-petition to James' petition to modify. In her cross-petition, Cynthia asked the district court to strike James' petition and award her attorney fees pursuant to Neb.Rev.Stat. § 25-824 (Reissue 1995) on the basis that James filed his petition frivolously in order to harass her.
Since the entry of the decree, the parties have also had an ongoing disagreement over the sharing and exchanging of family photographs. The property settlement agreement specifically provided:
The parties will cooperate in making photographs available for Husband to duplicate at his expense. To the extent there are some duplicates of these photographs, Husband may have them. Husband is also entitled to utilize photographic proofs for purposes of copying and shall return them to Wife after he has made copies.
On January 4, 2000, James filed a motion requesting the district court to order Cynthia to produce all photographs and negatives in her possession and to award James attorney fees. On January 27, the district court granted James' motion to produce the photographs and negatives, but withheld any ruling on attorney fees pending the trial on the petitions to modify.
Trial was held on August 8, 2000. At trial, James presented evidence of what he alleged to be a mathematical error in the decree of dissolution and the property settlement agreement. James argued that a "transposition error" had occurred when the district court derived the money judgment designed to equalize the division of the Peters' marital estate from numbers found in appendix 2 of the property settlement agreement and then "carried over" a different, incorrect number into paragraph 11 of the property settlement agreement and paragraph 6 of the decree of dissolution. This error allegedly resulted in an overpayment to Cynthia of $2,256.
James also asserted in support of his petition to modify that he spent a sufficient amount of time with his children to create a joint physical custody arrangement, thereby justifying a reduction in his child support obligation from $731 per month to $120.42 per month.
The district court entered its order on November 13, 2000. With respect to Cynthia's petition to modify, the court found that due to the fluctuations in James' annual income, income averaging was an appropriate method under the Nebraska Child Support Guidelines for determining whether there was a material change in circumstances that would require a modification in child support. Utilizing income averaging, the court found that James' monthly child support obligation would increase from $731 per month to $760.27 per month. Since the variation was less than the "10 percent or more" standard at which a material change of circumstances is presumed under paragraph Q of the guidelines, the court denied Cynthia's petition to modify, finding there was not a material change of circumstances.
Concerning James' petition to modify, the district court found that Cynthia had failed to disclose the transition account maintained by her employer at the time of the division of the marital estate. The court determined that the "Gross Vested Transition Account Amount" at the time of the decree of dissolution was $7,640.94. The court ordered Cynthia to pay James $3,820.47, one-half of the gross amount of $7,640.94, with interest from June 21, 1998.
The district court also agreed with James that there was a mathematical error in the decree of dissolution. The court determined that Cynthia had received an overpayment of $2,256 as a result of the error and therefore ordered Cynthia to pay James that amount with interest from June 21, 1998.
The district court, however, found against James on his remaining claims. The court found that a joint custody arrangement did not exist and determined that both parties would be responsible for their respective attorney fees. Cynthia appealed the district court's order on November 16, 2000, and James cross-appealed.
On April 23, 2001, James filed with the district court a motion to amend the bill of exceptions. In his motion, James asked for leave to add a page to exhibit 7, a document describing Bryan Memorial Hospital's policies regarding transition accounts. Exhibit 7, as offered into evidence at trial, contained only the first and third pages of the document.
On May 11, 2001, the district court held a hearing on whether to amend the bill of exceptions. In its order, the court found that the second page was not part of the exhibit as offered at trial and determined it did not have jurisdiction to expand the trial record. James also appeals this determination.
Cynthia assigns, rephrased and renumbered, that the district court erred in (1) utilizing income averaging in determining whether a material change in circumstances had occurred, (2) determining that there was not a material change in circumstances and refusing to increase and retroactively apply James' child support obligation, (3) modifying the final decree of dissolution to correct a mathematical error, (4) entering a money judgment against Cynthia based on the finding that her transition account through Bryan Memorial Hospital was an asset that was not disclosed at the time the decree of dissolution was entered, and (5) failing to find under § 25-824 that James' petition for modification was frivolous and brought in bad faith.
In his cross-appeal, James assigns, rephrased and renumbered, that the district court erred in (1) failing to award attorney fees resulting from James' motion to require Cynthia to produce family photographs, (2) finding that a joint custody arrangement did not exist, and (3) denying James' motion to amend the bill of exceptions.
Finally, James argues in his brief that this court should award him attorney fees on appeal resulting from his motion to amend the bill of exceptions.
Modification of child support payments is entrusted to the trial court's discretion, 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. Wagner v. Wagner, 262 Neb. 924, 636 N.W.2d 879 (2001).
A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Id.
In an action for modification of a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Noonan v. Noonan, 261 Neb. 552, 624 N.W.2d 314 (2001).
In her petition to modify, Cynthia claimed that a material change of circumstances had occurred with respect to James' income which required an increase in James' child support obligation. Prior to the divorce, James worked as an administrator at the Nebraska Heart Institute, where he received a salary in excess of $90,000 in 1995, and over $100,000 in 1996. In 1997, he began working on commission as a stockbroker. According to James' evidence, his gross annual earnings from commissions were $36,492 in 1997, $30,814.31 in ...
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