Reinsch v. Reinsch, S-99-137.
| Decision Date | 26 May 2000 |
| Docket Number | No. S-99-137.,S-99-137. |
| Citation | 611 N.W.2d 86,259 Neb. 564 |
| Parties | Kenneth Gale REINSCH, appellant and cross-appellee, v. Ava Irene REINSCH, appellee and cross-appellant. |
| Court | Nebraska Supreme Court |
David L. Kimble, Seward, for appellant.
Kathy Pate Knickrehm, and David B. Downing, of Downing, Alexander, Wood & Ilg, Omaha, for appellee.
On February 24, 1998, Ava Irene Reinsch filed a petition to modify upward and extend the termination date of child support being paid by Kenneth Gale Reinsch for the parties' son, Eric Reinsch. The divorce decree entered May 5, 1986, provided, inter alia, that custody was awarded to Ava and that Kenneth was to pay $200 per month child support until Eric reached the age of 18. On January 19, 1999, the district court for Seward County issued an order in which it found a material change in circumstances and increased Kenneth's monthly support obligation, extended the termination of Kenneth's obligation until Eric's 19th birthday, and awarded Ava attorney fees. Kenneth appealed the modification of the age 18 provision and the award of attorney fees to the Nebraska Court of Appeals, and Ava cross-appealed the district court's failure to make the increase retroactive to the date she filed her application to modify on February 24, 1998. The Court of Appeals rejected Kenneth's assignments of error but found merit in Ava's cross-appeal and ordered that the increased child support obligation be applied retroactively to March 1, 1998, the first date on which child support was due after Ava filed her petition to modify. Reinsch v. Reinsch, 8 Neb.App. 852, 602 N.W.2d 261 (1999). The Court of Appeals affirmed the district court's order as modified. Id.
Kenneth petitioned for further review, assigning as his sole error that the Court of Appeals erred in affirming the district court's order extending his child support obligation until Eric's 19th birthday. We granted Kenneth's petition for further review. For the reasons recited below, we affirm the judgment of the Court of Appeals.
Kenneth and Ava were married on April 20, 1974. They have one child, Eric, born November 6, 1981. The parties' marriage was dissolved on May 5, 1986. The decree of dissolution incorporated verbatim the parties' property settlement agreement (agreement) dated February 19, 1986. The agreement provided that Ava would have custody of Eric and that Kenneth would pay $200 per month in child support "until the child reaches the age of 18, dies, marries, or becomes emancipated." Ava was not represented by separate counsel. The trial court in the dissolution action found the agreement to be fair, reasonable, and not unconscionable.
Ava filed a petition to modify the decree on February 24, 1998. Trial was held on November 24. After trial, the district court ordered that Kenneth's support obligation be increased to $683 per month and that Kenneth's obligation be extended until Eric reached the age of 19. The court ordered the increased payments to start on January 1, 1999, rather than ordering that the increase be applied retroactively.
Kenneth appealed to the Court of Appeals, assigning as error the district court's (1) extension of his obligation by 1 year; (2) not allowing him to take an income tax deduction for Eric after increasing the support obligation; (3) setting aside the property settlement agreement and decree without a finding that the agreement was procured by fraud or was unfair and unconscionable; and (4) awarding attorney fees to Ava. Ava cross-appealed the district court's failure to make the increase in child support retroactive to the date she filed her petition to modify.
The Court of Appeals rejected Kenneth's assignments of error but found merit in Ava's cross-appeal. In its decision, the Court of Appeals held that the enactment of Neb.Rev.Stat. § 42-371.01 (Reissue 1998) was a material change of circumstances justifying modification of the duration of the child support award. Reinsch v. Reinsch, supra.
The Court of Appeals further determined that the district court should have made the increase in child support retroactive to March 1, 1998, the first date on which child support was due after Ava filed her petition to modify. Id. The Court of Appeals affirmed the district court's order as modified. Id.
Kenneth petitioned for further review. Kenneth's petition was limited to the claim that the Court of Appeals erroneously extended his child support obligation until Eric's 19th birthday. We granted Kenneth's petition for further review.
Upon further review, Kenneth asserts the Court of Appeals erred in affirming the district court's order which set aside the property settlement agreement and decree without a finding that the agreement was procured by fraud or was unfair or unconscionable and extended Kenneth's child support obligation by 1 year.
Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court. Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999).
Standard for Modification of Child Support Order.
We first address Kenneth's argument, properly rejected by the Court of Appeals, that the district court erred in setting aside the parties' property settlement agreement with respect to child support without a finding that such agreement was procured by fraud or was unconscionable. Kenneth misstates the standards applicable to this case. The present action is one for a modification of a child support order, which order is subject to a material change of circumstances analysis and is always subject to review and modification, whereas the standards upon which Kenneth relies relate variously to real and personal property and maintenance. Kenneth's first argument on further review is unavailing.
Kenneth relies on Neb.Rev.Stat. § 42-366 (Reissue 1998), and the cases Prochazka v. Prochazka, 198 Neb. 525, 253 N.W.2d 407 (1977), and Klabunde v. Klabunde, 194 Neb. 681, 234 N.W.2d 837 (1975), in support of his argument that the district court and the Court of Appeals should have analyzed the change of age provision under a fraud or unconscionable analysis. Kenneth's reliance is misplaced.
Section 42-366 provides that the parties to a dissolution of marriage may enter into a written property settlement agreement containing provisions for, among other things, the support and custody of minor children. § 42-366(1). The statute specifically provides that "the terms of the agreement, except terms providing for the support and custody of minor children, shall be binding upon the court unless it finds ... that the agreement is unconscionable." (Emphasis supplied.) § 42-366(2). We further note that child support orders are always subject to review and modification. Shomaker v. Shomaker, 183 Neb. 609, 163 N.W.2d 102 (1968). See, also, Hoover v. Hoover, 2 Neb.App. 239, 508 N.W.2d 316 (1993).
In applying § 42-366, we have held that if the terms of a property settlement agreement with respect to real and personal property and maintenance are not found unconscionable, the agreement is binding upon the dissolution court and the initial decree must carry such agreement into effect. Prochazka v. Prochazka, supra.
See, also, Smith v. Ganz, 219 Neb. 432, 363 N.W.2d 526 (1985); Dobesh v. Dobesh, 216 Neb. 196, 342 N.W.2d 669 (1984); § 42-366(4). We have also held that where a party to a divorce action voluntarily executes a property settlement agreement which is approved by the dissolution court and incorporated into a divorce decree from which no appeal is taken, provisions dealing with division of real and personal property, division of pension benefits, and division of stock will not thereafter be vacated or modified in the absence of fraud or gross inequity. Klabunde v. Klabunde, supra. See, also, Hoshor v. Hoshor, 254 Neb. 743, 580 N.W.2d 516 (1998); Pascale v. Pascale, 229 Neb. 49, 424 N.W.2d 890 (1988); Colson v. Colson, 215 Neb. 452, 339 N.W.2d 280 (1983).
Notwithstanding Kenneth's argument to the contrary, neither the "unconscionable" standard nor the "fraud or gross inequity" standard as utilized in the cases referred to above are applicable to this action involving modification of child support. Instead, we have consistently held that a party seeking to modify a child support order must show a material change in circumstances which has occurred subsequent to the entry of the original decree or a previous modification and was not contemplated when the decree was entered. Rhoades v. Rhoades, 258 Neb. 721, 605 N.W.2d 454 (2000). Kenneth's first argument is without merit, and the Court of Appeals did not err in rejecting his argument.
Extension of Child Support Obligation.
Kenneth assigns as error the Court of Appeals' affirmance of the district court's order extending his child support obligation. Although we disagree with the Court of Appeals' reasoning, we conclude that the Court of Appeals did not err in affirming the district court's order extending Kenneth's child support to age 19 and accordingly, affirm the decision of the Court of Appeals. Corcoran v. Lovercheck, 256 Neb. 936, 943-44, 594 N.W.2d 615, 621 (1999) ().
The district court's order was a modification of a child support order, and as discussed above, a party seeking to modify a child support order must show a material change in circumstances. Rhoades v. Rhoades, supra.
Thus, Ava was required to show a material change in circumstances which justified modifying the child...
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