State on Behalf of Elsasser v. Fox
| Decision Date | 22 September 1998 |
| Docket Number | No. A-97-021,A-97-021 |
| Citation | 7 Neb.App. 667,584 N.W.2d 832 |
| Parties | STATE of Nebraska on behalf of Camden J. ELSASSER, Appellee, v. Chad R. FOX, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Modification of Decree: Visitation: Child Support: Appeal and Error. Modification of a dissolution decree, child visitation, and amount of child support are matters initially entrusted to the discretion of the trial court, whose decisions are to be reviewed on appeal de novo on the record and will be affirmed absent an abuse of discretion.
2. Modification of Decree: Appeal and Error. Although in conducting its de novo review of a modification of a decree an appellate court reaches a conclusion independent of the trial court, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another.
3. Child Support: Rules of the Supreme Court. Paragraph C of the Nebraska Child Support Guidelines requires that all orders for child support, including modifications, must include a basic income and support calculation worksheet.
4. Child Support: Rules of the Supreme Court. A court may deviate from the child support guidelines whenever the application of the guidelines in an individual case would be unjust or inappropriate.
5. Child Support: Rules of the Supreme Court. Student loans are an appropriate deviation from the Nebraska Child Support Guidelines.
Joseph H. Murray, of Germer, Murray & Johnson, and Gregory C. Damman, Bruning, for appellant.
Loren L. Lindahl, Deputy Saunders County Attorney, Wahoo, for appellee.
Chad R. Fox appeals from the order of the district court increasing his child support obligation for Camden J. Elsasser, arguing that the court erred in not deducting the monthly payment he is required to make on his student loan from his net monthly income in computing his obligation. We find that the court did not include a basic income and support calculation and wrongly ignored evidence of the income of Camden's mother, Dawn Elsasser. Moreover, we conclude that the court erred in failing to allow a deduction for Chad's monthly student loan payments. Accordingly, we affirm as modified.
The facts are undisputed. On December 29, 1994, the district court entered a consent decree establishing that Chad is the father of Camden, born January 14, and ordering Chad to pay child support to Dawn in the amount of $50 per month, commencing January 1, 1995. The court also ordered Chad to name Camden as a beneficiary under any health and medical insurance policy available to him through his employer and to make certain payments in connection with Camden's birth.
On May 15, 1996, under Neb.Rev.Stat. § 43-512.12 (Reissue 1993), the Saunders County Attorney, representing the State of Nebraska on behalf of Camden, filed an application to modify Chad's child support obligation and to establish medical insurance coverage. The application alleged that Chad's income had increased substantially and that Chad may have medical insurance available through his employer. In his responsive pleading, Chad admitted that he was capable of furnishing more support and alleged that he had already procured medical insurance and had provided Dawn with evidence thereof. In an amended pleading, he alleged that he was responsible for student loans in the principal amount of approximately $17,000, for which he was obligated to make monthly payments in the amount of $178.09. Chad alleged that such loans should be taken into consideration in computing his child support obligation.
The trial on the modification issue was held on December 9, 1996. Dawn testified that although she had previously received Aid to Families with Dependent Children, she had recently obtained full-time employment, earning $7.10 per hour for 40 hours per week. Her testimony gave every indication that the job was permanent employment. During Dawn's direct examination, the State's attorney offered into evidence a photographic copy of the first pay stub she received from her new employment, showing her gross pay and the amounts withheld for income tax, et cetera. Chad's attorney objected to the exhibit as irrelevant, and for reasons we do not understand, the judge sustained the objection. At the time of the hearing, Dawn's wages would have translated into a monthly gross income of $1,230.
Chad testified that he is 24 years of age, that at the time of the decree in December 1994 he was a full-time college student, and that he graduated therefrom in May 1996. The record reflects that Chad attended college with the aid of part-time employment, some scholarships, help from his parents, and a student loan. In September 1996, he obtained full-time employment as a teacher in a public school in a small town, with gross pay of $1,974.16 per month. The record also reflects that he had supplied Dawn with medical insurance information.
Chad testified that the student loan was necessary for him to obtain the education he attained. Chad testified that the term of the loan was 10 years, beginning January 1996. A loan statement, dated January 8, 1996, reveals that Chad's principal balance was $17,219.02, that his monthly payment was $178.09, and that he was current in his payments on that loan. Income tax returns from the years 1994 and 1995 show that Chad made several thousand dollars a year in various jobs, some of which appear to be related to the education profession and others of which are typical of those engaged in by college students.
The parties did not file or introduce a basic income and support calculation, and the court did not follow paragraph C of the Nebraska Child Support Guidelines, which requires "[a]ll orders for child support, including modifications, must include a basic income and support calculation worksheet 1, and if used, worksheet 2 or 3." We find in the transcript an unsigned journal entry wherein the court stated that since it sustained the objection to Dawn's evidence of income, it found her income to be $0 per month. Further, the court stated: "Under the circumstances of this case, I find it would not be reasonable [or] equitable to allow the deviation for student loan payments requested by [Chad]." The journal entry stated that the court adopted the "County Attorney's calculation B as the most appropriate calculation," and found that effective September 1, 1996, Chad's child support obligation should be increased to $319 per month.
The transcript also contains a formal order dated and filed on January 6, 1997, modifying the decree. In the order, the court found a "substantial change in circumstances" and, without disclosing any findings relative to either party's gross or net income, or allowable deductions, ordered Chad to pay $319 per month in child support, commencing September 1, 1996. The order also contains the usual directives regarding payment to the clerk, delinquent payments, medical insurance, et cetera.
Chad argues that the court erred in computing his child support obligation because the court failed to deviate from the child support guidelines to account for his student loan. Chad, however, admits that there is a change in circumstances justifying an increase in support.
Modification of a dissolution decree, child visitation, and amount of child support are matters initially entrusted to the discretion of the trial court, whose decisions are to be reviewed on appeal de novo on the record and will be affirmed absent an abuse of discretion. Smith-Helstrom v. Yonker, 253 Neb. 189, 569 N.W.2d 243 (1997). Although in conducting its de novo review of such matters an appellate court reaches a conclusion independent of the trial court, where credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts rather than another. Id.
As noted above, the parties did not see fit to file or introduce any worksheet disclosing their respective gross and net monthly incomes or the method of computing Chad's child support obligation under the guidelines. Paragraph C of the Nebraska Child Support Guidelines requires that all orders for child support, including modifications, must include a basic income and support calculation worksheet. See, also, Baratta v. Baratta, 245 Neb. 103, 511 N.W.2d 104 (1994) (). The court ignored this clear direction by failing to include such as part of its order. Such failures impose upon this court the unnecessary work of combing the record in order to determine the income and deductions mandated by the evidence, and thus the judicial resources of this state are wasted on needless duplication. The worksheets provide an efficient method of summarizing the findings or proposed findings from the evidence, as well as displaying computations, and the trial courts are required to use them under paragraph C. We do not understand why trial courts and litigants do not always use them. Furthermore, such worksheets enable efficient comparison of the arithmetic necessary in child support calculations.
As we were unable to view a worksheet, we did the necessary work and prepared our own worksheet. Unfortunately, we are unable to arrive at the exact amount of child support ordered by the trial court, even when we use what we understand to be the trial court's findings on Dawn's income and the nondeductibility of Chad's student loan payments. We find that the evidence on Chad's income and deductions, exclusive of the student loan payments, is not disputed and that a correct, although skeletal, worksheet is as...
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