Dobbins v. Dobbins

411 N.W.2d 644, 226 Neb. 465, 1987 Neb. LEXIS 1015
CourtNebraska Supreme Court
DecidedSeptember 11, 1987
Docket86-1107
StatusPublished
Cited by18 cases

This text of 411 N.W.2d 644 (Dobbins v. Dobbins) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dobbins v. Dobbins, 411 N.W.2d 644, 226 Neb. 465, 1987 Neb. LEXIS 1015 (Neb. 1987).

Opinion

Per Curiam.

The respondent, Willis E. Dobbins, has appealed from the order of the district court increasing the amount of child support he must pay under the decree dissolving his marriage to Ramona M. Dobbins.

The original decree of dissolution was entered on June 29, 1982. The court granted custody of the parties’ two daughters to Ramona. Pursuant to the parties’ stipulation, Willis was ordered to pay child support of $150 per child per month.

On July 28,1986, Ramona filed an application to modify the decree to increase the award of child support. She alleged that the increase was required in the best interests of the children due to material changes in the parties’ circumstances since entry of the original decree. Specifically, she alleged that Willis had realized numerous increases in his earnings over the years, whereas her own income had remained the same or decreased. She also alleged that the parties’ two daughters had grown in years and their needs increased, thereby increasing the financial demands on her.

On October 20,1986, a hearing was had on the application to modify. Prior to receiving any evidence, the trial court stated that it would not hear any evidence regarding increased financial needs of the children and their mother due to the daughters’ growth in years. This limitation was based on the trial court’s reading of an unidentified opinion of this court. The evidence was thus restricted to that regarding the allegation of increased earnings to Willis.

After hearing the testimony of both Willis and Ramona, the trial court on October 27, 1986, increased Willis’ child support obligations under the decree to $ 175 per child per month.

On appeal, Willis maintains there was not sufficient evidence of a material change of circumstances since the time of the original decree which would justify the increase in child support.

*467 Modification of child support is an issue entrusted to the sound discretion of the trial court. Wilson v. Wilson, 224 Neb. 589, 399 N.W.2d 802 (1987). Our 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. Wilson, supra. Our 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. Graber v. Graber, 220 Neb. 816, 374 N.W.2d 8 (1985).

It is also necessary to keep in mind that the paramount concern regarding child support issues, whether in the original dissolution action or in proceedings for modification, remains the best interests of the children. Wagner v. Wagner, 224 Neb. 155, 396 N.W.2d 282 (1986).

Modification of an award of child support is not justified unless the applicant proves that a material change in circumstances has occurred since entry of the decree or a previous modification. Graber v. Graber, supra.

Previously, this court has held that a “material change in circumstances” is a concept which eludes precise, concise definition. Wilson v. Wilson, supra. There are certain factors, however, which the district court may consider in determining whether a material change has occurred or not. Among those factors are: changes in the financial position of the parent obligated to pay support; the needs of the children for whom support is paid; good or bad faith motive of the obligated parent in sustaining a reduction in income; and whether the change is temporary or permanent. Wilson v. Wilson, supra.

In a similar vein, this court in Meyers v. Meyers, 222 Neb. 370, 374, 383 N.W.2d 784, 787 (1986), stated: “The determination of whether such a change has occurred involves a consideration of whether there has been a change in the financial resources of the parents, the needs of the child for whom support is paid, and whether the change in circumstances is temporary or permanent.”

Willis contends that the evidence here was insufficient to support a modification because the record is silent as to the needs of the minor children in question. In fact, there is no such *468 direct evidence in the record. Ramona responds that an inference of the children’s increased needs arises from the fact that she is now unemployed, which was not the case when the stipulation and decree were entered.

The lack of direct evidence regarding the children’s needs is due to the fact that the trial court refused to hear evidence regarding Ramona’s allegation that her minor daughters’ growth in years had resulted in an increase in their financial needs. Any evidence that Ramona had on this issue should not have been excluded.

In Graber v. Graber, supra at 819, 374 N.W.2d at 10, this court stated:

Indeed, if the changes are of the type that necessarily were in the contemplation of the parties at the time the decree was entered, even though material, such changes do not, of themselves, justify a modification. For instance, it obviously is in the contemplation of all of the parties in every case that the children involved will grow older and that their needs will therefore change. That fact, standing alone, is not sufficient to justify a modification of a decree of dissolution.

Subsequently, in Wagner v. Wagner, supra, we indicated that the above quoted language from Graber was an overstatement. The better view, as stated in Wagner, supra at 157, 396 N.W.2d at 283, is that “evidence of the increased age of children alone will not furnish a satisfactory basis for modification of child support unless accompanied by competent evidence of the actual increase in the cost of maintaining the children.” (Emphasis supplied.)

In view of Wagner, an opinion released subsequent to the hearing of this case, the trial court committed plain error in refusing to permit evidence on this issue. See Neb. Rev. Stat. § 25-1919 (Reissue 1985).

Nevertheless, the evidence before the court was sufficient to show a material change of circumstances. Specifically, the evidence reflected that Willis’ gross income had increased from $28,894.58 in 1982, when the decree was entered, to $32,544.41 in 1985. The evidence also showed that while Ramona was employed as a gas station attendant when the decree was *469 entered, she was unemployed at the time of the modification hearing and had been so since August of 1986. Her unemployment was due to a heart condition which had caused her problems for 14 years.

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Bluebook (online)
411 N.W.2d 644, 226 Neb. 465, 1987 Neb. LEXIS 1015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dobbins-v-dobbins-neb-1987.