Phelps v. Phelps, 89-413

• Decision Date: 06 December 1991
• Docket Number: No. 89-413,89-413
• Citation: 477 N.W.2d 552,239 Neb. 618
• Parties: Rodney PHELPS, Appellant, v. Joyce PHELPS, Appellee.
• Court: Nebraska Supreme Court

Page 552

477 N.W.2d 552

239 Neb. 618

Rodney PHELPS, Appellant, v. Joyce PHELPS, Appellee.

No. 89-413.

Supreme Court of Nebraska.

Dec. 6, 1991.

Syllabus by the Court

1. Child Support: Modification of Decree: Appeal and Error. Modification of child support is an issue entrusted to the discretion of the trial court. Appellate review of such issues is de novo on the record, but absent an abuse of discretion by the trial court, its decision will be affirmed on appeal. The de novo review is also qualified by the fact that where there is a conflict in the evidence, weight is given to the fact that the trial court saw and heard the witnesses and accepted one version of the facts as opposed to the other.

2. Child Support: Modification of Decree: Proof. The party seeking to modify a child support order must show a material change in circumstances which occurred subsequent to the entry of the original decree and was not contemplated when the decree was first entered.

3. Child Support: Modification of Decree: Rules of the Supreme Court. The adoption of the Nebraska Child Support Guidelines effective October 1, 1987, constituted a material change of circumstances sufficient to justify consideration of proposed modification of child support orders entered before that date.

4. Child Support: Rules of the Supreme Court. In general, child support payments should be set according to the Nebraska Child Support Guidelines, which compute the presumptive share of each parent's child support obligation.

5. 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.

6. Child Support. The primary interest in determining the level of child support payments is the best interests of the children.

7. Appeal and Error: Words and Phrases. Plain error is error which was unasserted or uncomplained of at trial or on appeal, but is plainly evident from the record, which prejudicially affects a litigant's substantial right and which is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

8. Child Support: Appeal and Error. Under certain circumstances, an order that a part of child support payments be held in escrow while an appeal to the Supreme Court is pending is an abuse of discretion.

Paul M. Conley, Lincoln, for appellant.

James A. Cada, of Bailey, Polsky, Cada, Cope & Wood, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

BOSLAUGH, Justice.

This is an action to modify a dissolution decree which was entered in 1977. On October 6, 1988, the appellee, Joyce Phelps, filed a petition to modify the decree to increase child support for the parties' minor child, born August 16, 1975. On March 2, 1989, the district court entered an order raising the appellant's child support obligation from $125 per month to $400 per month. Appellant's motion for new trial was overruled on March 31.

The appellant filed his notice of appeal on May 1, 1989. On the same day, he filed a motion in the district court asking the court to place the increased child support in escrow. In June 1989, pursuant to Neb.Rev.Stat. § 42-351(2) (Reissue 1988), the district court entered orders that a portion of the appellant's monthly child support payments be placed in escrow.

The appellant contends in this court that the district court erred in increasing his child support obligation to $400 per month. Modification of child support is an issue entrusted to the discretion of the trial court. Appellate review of such issues is de novo on the record, but absent an abuse of discretion by the trial court, its decision will be affirmed on appeal. The de novo review is also qualified by the fact that where there is a conflict in the evidence, weight is given to the fact that the trial court saw and heard the witnesses and accepted one version of the facts as opposed to the other. Dobbins v. Dobbins, 226 Neb. 465, 411 N.W.2d 644 (1987).

The record shows that when the parties' marriage was dissolved in 1977, the appellant earned approximately $11,000 per year working as a firefighter for the city of Lincoln. He has remained in that position and now earns $28,000 per year, plus insurance and pension benefits, from that job. The appellant also receives approximately $200 per month net income from rental property. He and his present wife have also owned and operated an antique store in Lincoln for the past 8 years. The appellant testified that neither of them draws a salary from their antique business, but that they have reinvested their profits in the business. He testified that he did not know what his equity in the antique business was, that he did not know what his income from the antique business was, that he did not declare any income on his income tax returns from the antique business, and that he put between $10,000 and $20,000 back into the antique business in 1988.

The appellee worked as a receptionist after the 1977 decree, earning approximately $3 per hour, with several periods of unemployment. In May 1986, she had an accident and cut the tendons in her right hand. The wound became infected after surgery and the appellee was eventually diagnosed as having "RS dystrophy," which was described as the constricting of blood vessels and arteries in an injured limb. She also suffered a collapsed lung and pneumonia as a result of her treatment for RS dystrophy. As of the hearing date, the appellee was unemployed and her doctor had not released her for job training efforts.

We have held that a party seeking to modify a child support order must show a material change in circumstances which occurred subsequent to the entry of the original decree and was not contemplated when the decree was first entered. See Schmitt v. Schmitt, 239 Neb. 632, 477 N.W.2d 563 (1991). In this case, the appellant contends the district court erred in concluding that "a raise of almost 150% was a material and substantial change in circumstance," brief for appellant at 12-13, and that "[i]n a modification of decree proceeding, an increase in child support award based solely upon the current income formula applied to the Nebraska Child Support Guidelines is an abuse of discretion," brief for appellant at 16. Our opinion in Schmitt disposes of these issues.

In Schmitt v. Schmitt, supra, the parties' marriage was dissolved in August 1987 and the husband was ordered to pay $100 per month per child for the first 36 months and $150 per month per child thereafter for the support of three minor children. The Nebraska Child Support Guidelines became operative on October 1, 1987, and the wife sought modification of the child support order due to a material change in circumstances, contending that the guidelines suggested a total child support obligation of approximately $880 per month. We noted in Schmitt, supra at 637, 477 N.W.2d at 566, that the implementation of certain federal and state statutes "may well render the concept of 'material change of circumstances' of much less concern," and held that the adoption of the Nebraska Child Support Guidelines effective October 1, 1987, constituted a material change of...