Wilkins v. Wilkins, S-04-252.
| Decision Date | 03 June 2005 |
| Docket Number | No. S-04-252.,S-04-252. |
| Citation | 697 N.W.2d 280,269 Neb. 937 |
| Parties | Shannon M. WILKINS, appellant and cross-appellee, v. Joseph A. WILKINS, appellee and cross-appellant. |
| Court | Nebraska Supreme Court |
Joseph H. Murray, P.C., L.L.O., of Germer, Murray & Johnson, Hebron, for appellant.
Sally A. Rasmussen, of Knudsen, Berkheimer, Richardson & Endacott, L.L.P., Lincoln, for appellee.
Shannon M. Wilkins appeals from the trial court's order modifying the decree that dissolved her marriage to Joseph A. Wilkins. The court increased Joseph's child support obligation, denied retroactive application of the child support increase, and recalculated the responsibility for health care and childcare expenses. It declined to change the allocation of tax exemptions for the parties' minor children and denied Joseph's request that he be allowed a deduction for the entire amount of his monthly student loan payment in calculating his child support obligation. Joseph cross-appeals.
Modification of child support is entrusted to the discretion of the trial court. See Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005). An appellate court reviews proceedings for modification of child support de novo on the record and will affirm the judgment of the trial court absent an abuse of discretion. Id.
Shannon and Joseph were married in August 1993. A dissolution decree entered on January 11, 2001, granted custody of the parties' two minor children to Shannon, with reasonable visitation for Joseph, including 6 weeks in the summer. Joseph was ordered to pay child support of $600 per month for two children and $400 per month for one child, commencing January 1, 2001. The decree provided that child support would abate by one-half for 1 month during summer visitation. Joseph was directed to pay his student loans of approximately $80,000, and he was granted a deviation in child support based upon the student loan payments. The deviation reduced his child support obligation by $137 per month for two children and $114 per month for one child.
Shannon was directed to provide health insurance for the children when it is available through her employment, and Joseph was made responsible for one-half of any medical and health care expenses not covered by insurance. Each parent was directed to pay the daycare expenses incurred when the children were in that parent's physical custody. The decree provided that Shannon could claim one of the children as a dependent for income tax purposes and that Joseph could claim the other, as long as he was current in his child support obligation.
On November 29, 2001, Shannon filed an application for modification of the dissolution decree, asserting that there had been material changes of circumstances. She alleged that the cost of daycare had increased and requested a modification to require Joseph to pay a proportionate share of this expense. She claimed that Joseph's income had increased since the decree and that application of the Nebraska Child Support Guidelines to his current income would result in an increase in child support in excess of 10 percent of his current obligation. Shannon also asked for a court order requiring the parties to file separate applications for credit in order to separate their loan obligations.
The issues raised in the modification request were not ultimately determined until February 2004, over 2 years after it was filed. The delays were the result of a number of events.
When Shannon filed the application for modification in November 2001, she did not have Joseph served with a summons. He entered a voluntary appearance on February 7, 2002. In an amended answer, Joseph asserted that the trial court should take into consideration his obligation to make monthly student loan payments when determining child support. Joseph also filed a counterclaim, alleging that he should be entitled to claim both children as dependents for income tax purposes.
On December 16, 2002, the trial court ordered that Joseph's child support obligation for two minor children be increased temporarily to $900 per month, effective November 1, 2002. A final decree was subsequently entered, and Joseph filed a motion for new trial or to alter or amend the judgment. He also filed a motion to recuse the trial judge because of ex parte communications between the judge and Shannon's counsel. The judge subsequently recused himself.
On May 2, 2003, a different judge sustained Joseph's motion for new trial and vacated and set aside the orders of the first trial judge. The second judge ordered continuation of the temporary child support during the pendency of the action and scheduled a new trial for July 1. Shannon's counsel filed a motion for continuance on June 30 because his residence had sustained severe tornado damage and he did not have adequate time to prepare for trial.
Following the new trial, the trial court entered an order on September 30, 2003, modifying the original decree. The court found a material change in circumstances in that Joseph's annual income had increased while Shannon's income had remained the same. As to Joseph's request for a deduction of his $1,029 per month student loan payments in calculating child support, the court found some evidence that the student loans might have been taken into consideration at the time of the decree. The court granted a deduction of 25 percent of the monthly loan payment, or $257.25, from Joseph's monthly income in calculating child support. It ordered monthly child support of $907 for two children and $627 for one child.
Shannon had requested that the modification of child support be made retroactive to the month following the filing of her application. The trial court noted that Joseph had paid $900 per month for approximately 10 months under the temporary child support order. It concluded that the delays in the case could not be specifically attributed to either party and that it would create a hardship on Joseph to make his child support obligation retroactive to December 1, 2001. The court found that the temporary child support had given Shannon adequate relief, and the modified child support obligation was made effective October 1, 2003.
The trial court ordered that each party would be responsible for one-half of the children's medical expenses not covered by insurance, in accordance with the child support guidelines. The court made no change in the allocation of tax exemptions. It ordered Joseph to reimburse Shannon for 50 percent of work-related childcare and ordered Shannon to reimburse Joseph for 50 percent of work-related childcare during summer visitation.
At the new trial, Joseph presented evidence that he had remarried and that his wife was expecting a child relatively soon. He requested credit for the support of this child in the calculation of his child support obligation. The trial court found it not appropriate to do so prior to the birth of the child. It stated, "However, it appears that [Joseph] would certainly be entitled to such a credit upon the birth of the child, and it is hoped that the parties can reach a stipulation in that regard." The court indicated a willingness to enter a further order of modification if an application was filed and the parties stipulated to the modification. The court stated that if no agreement could be reached concerning a further application to modify, it would consider entering a temporary order after notice and hearing, with all evidence to be presented by affidavit.
On October 2, 2003, Joseph filed a motion to reopen his rest or for new trial in order to present evidence of the birth of his daughter on September 27. Shannon filed a motion for new trial on October 6.
The trial court overruled the motions for new trial but granted Joseph's motion to reopen his rest for the limited purpose of providing evidence of the birth of the child. After evidence was offered, the court took the matter under advisement.
The final order modifying the dissolution decree was entered on February 23, 2004. The trial court found a material change in circumstances based on the 47-percent increase in Joseph's income while Shannon's income remained the same. The court again granted Joseph the student loan deduction of 25 percent. It made the child support modification effective March 1, 2004, finding that the temporary child support had given Shannon adequate relief and that the delays could not be specifically attributed to either party. Each party was directed to be responsible for one-half of any medical expenses in excess of $480 per calendar year per child up to a maximum of Joseph's monthly child support obligation. The court granted no change in the tax exemptions.
As a deviation from the child support guidelines, the trial court allowed Joseph a deduction of $411 from his income as the amount of his child support obligation for the child born September 27, 2003. The court based this deduction on a worksheet provided by Joseph. Joseph was ordered to pay child support of $792.35 per month for two children and $548.94 for one child. Shannon appealed, and Joseph has filed a cross-appeal.
Shannon assigns as error the trial court's abuse of discretion in (1) calculating child support on the basis of Joseph's total monthly income less $411 attributable to his obligation to support a child born September 27, 2003; (2) failing to make the child support order effective as of December 1, 2001, the first day of the month after Shannon filed her application for modification of the decree; and (3) failing to make Joseph's requirement to contribute to childcare expenses retroactive to December 1, 2001.
On cross-appeal, Joseph asserts that the trial court erred in (1) failing to grant him a credit in the amount of his entire student loan payment, which resulted in an increase in his...
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