Gress v. Gress

743 N.W.2d 67, 274 Neb. 686, 2007 Neb. LEXIS 173
CourtNebraska Supreme Court
DecidedDecember 21, 2007
DocketNo. S-06-607
StatusPublished
Cited by112 cases

This text of 743 N.W.2d 67 (Gress v. Gress) 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
Gress v. Gress, 743 N.W.2d 67, 274 Neb. 686, 2007 Neb. LEXIS 173 (Neb. 2007).

Opinion

Heavican, C.J.

I. INTRODUCTION

This action originated as a petition for dissolution of marriage between Pamela Joann Gress and Patrick Raymond Gress. The district court dissolved the marriage between the parties, divided their assets, and ordered Patrick to make monthly child and spousal support payments. Patrick appealed, citing an error in the district court’s calculation of child support and alimony. On appeal, we concluded the district court improperly calculated child support. We therefore remanded the cause for further [688]*688proceedings, instructing the court to recalculate Patrick’s share of child support and to make any necessary changes to the alimony award.1

On remand, the district court made a slight reduction in Patrick’s child support obligation and reinstated its order that Patrick pay alimony of $1,000 per month for 60 months. Patrick now appeals, once again arguing that the district court erred in setting the amount of his child and spousal support obligations. Pamela - cross-appeals, contending the district court erred by limiting alimony to a period of 60 months. For reasons developed in detail below, we affirm the district court’s child support order and the duration of the alimony award, but reverse the court’s order with regard to the amount of alimony.

II. BACKGROUND

Because a more thorough statement of facts can be found in our prior .opinion,2 we recount only facts relevant to this appeal. During the marriage, Pamela was a stay-at-home mother while Patrick, a lifelong farmer, worked the family’s farm. In September -2003, Pamela petitioned for a divorce. Patrick and Pamela have four children ranging in age from 5 to 17. The youngest of the Gress children was bom with Down syndrome.

On December 15, 2004, the district court entered an order which' dissolved the marriage, divided the couple’s assets and liabilities, and ordered Patrick to pay child support and alimony. Specifically, Patrick was ordered to pay, among other things, child support of $1,285 per month and alimony of $1,000 per month for 60 months. As noted above, Patrick appealed to this court, and after identifying an error in the district court’s calculation of depreciation in Patrick’s income, we remanded the cause for. further proceedings, instructing the court to adjust the amount of Patrick’s child support responsibilities. On remand, the court reduced Patrick’s child support obligation to $1,224 per month and reinstated its order that Patrick pay Pamela alimony of $1,000 per month for 60 months. Patrick was also [689]*689ordered to pay an “80.5 %” share of any daycare costs. Both parties now appeal.

HI. ASSIGNMENTS OF ERROR

Patrick assigns, restated and renumbered, that the district court erred in calculating Patrick’s child support obligation by (1) basing the calculation on an average of his incomes from 2001 through 2003, (2) disregarding paragraph Q of the Nebraska Child Support Guidelines, (3) violating paragraph R of the Nebraska Child Support Guidelines, and (4) failing to take the youngest child’s Social Security benefits into consideration. Additionally, Patrick assigns that the district court erred in (5) awarding an unreasonable amount of alimony to Pamela.

In her cross-appeal, Pamela assigns that the district court erred by limiting Patrick’s alimony obligation to 60 months.

IV. STANDARD OF REVIEW

Domestic matters such as child custody, division of property, child support, and alimony are entrusted to the discretion of trial courts.3 A trial court’s determinations on such issues are reviewed “de novo on the record to determine whether there has been an abuse of discretion by the trial judge.”4 Under this standard, an appellate court conducts its “own appraisal of the record” to determine whether the trial court’s judgments “are untenable such as to have denied justice.”5

Finally, we note that interpretation of the Nebraska Child Support Guidelines presents a question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.6

V ANALYSIS

Taken together, the parties’ assignments of error concern either the amount of Patrick’s child support obligation or the [690]*690amount and duration of Patrick’s spousal support obligation. The Nebraska Child Support Guidelines (hereinafter NCSG) instruct that a party’s alimony obligation is to be set according to the income he or she has available after his or her child support obligations, if any, have been accounted for.7 Accordingly, we begin with an analysis of the district court’s child support determination, then the alimony award.

1. Child Support

Patrick argues that the trial court erred in ordering him to pay $1,224 per month in child support. He offers four distinct reasons why this figure is erroneous. First, Patrick argues that the court erred in averaging his incomes from 2001 through 2003. Patrick contends the court should have used an 8-year average instead or, at the very least, should have included Patrick’s income from 2004 in its average. Second, Patrick argues that the district court erred by disregarding paragraph Q of the NCSG in setting child support. Third, Patrick argues that the district court erred by ordering an amount of child support which allegedly violates paragraph R of the NCSG. Finally, Patrick argues that the district court incorrectly ignored the Social Security allowance in setting Patrick’s child support obligation. Wé address each argument in turn in the sections that follow.

■ (a) Income Averaging

In his primary argument, Patrick asserts that the district court erred in averaging his annual income for the purpose of calculating his monthly child support obligation. Before determining an individual’s child support obligation, the trial court must identify the monthly incomes for both the custodial and noncustodial parents.8 As a self-employed farmer, Patrick’s income is prone to fluctuations from year to year. The NCSG anticipates this contingency and provides that “[i]n the event of substantial fluctuations of annual earnings of either party during [691]*691the immediate past 3 years, the income may be averaged to determine the percent of contribution of each parent. . . .”9

In 2001, Patrick’s annual income was $51,654. In 2002, this figure increased to $61,059, only to plummet to $28,400 in 2003. These figures translate to an approximate 18-percent increase from 2001 to 2002, then a 54-percent drop from 2002 to 2003. This is the sort of substantial fluctuation that the NCSG contemplates. Therefore, it was entirely proper for the district court to use income averaging to calculate Patrick’s income for child support purposes. Patrick contends, however, that the district court erred by (1) using a 3-year average instead of an 8-year average or, alternatively, (2) not including Patrick’s income from 2004 in its average.

(i) 8- Year Average

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kingston v. Kingston
320 Neb. 981 (Nebraska Supreme Court, 2026)
Witt v. Witt
Nebraska Court of Appeals, 2022
Essink v. Essink
Nebraska Court of Appeals, 2022
Callahan v. Galaway
Nebraska Court of Appeals, 2022
Brisso v. Brisso
Nebraska Court of Appeals, 2022
Toro v. Toro
30 Neb. Ct. App. 158 (Nebraska Court of Appeals, 2021)
Henson v. Carosella
Nebraska Court of Appeals, 2020
Gandara-Moore v. Moore
29 Neb. Ct. App. 101 (Nebraska Court of Appeals, 2020)
Harrison v. Harrison
28 Neb. Ct. App. 837 (Nebraska Court of Appeals, 2020)
Flchtl v. Flchtl
28 Neb. Ct. App. 380 (Nebraska Court of Appeals, 2020)
Fichtl v. Fichtl
28 Neb. Ct. App. 380 (Nebraska Court of Appeals, 2020)
Killinger v. Killinger
Nebraska Court of Appeals, 2019
Schnackel v. Schnackel
27 Neb. Ct. App. 789 (Nebraska Court of Appeals, 2019)
Miller v. Miller
Nebraska Court of Appeals, 2019
Ewing v. Evans
Nebraska Court of Appeals, 2019
Stockdale v. Rehal
Nebraska Court of Appeals, 2019
Hall v. Hall
26 Neb. Ct. App. 877 (Nebraska Court of Appeals, 2019)
In the Matter of Steven Hoyt and Lesley Hoyt
196 A.3d 85 (Supreme Court of New Hampshire, 2018)
Armknecht v. Armknecht
300 Neb. 870 (Nebraska Supreme Court, 2018)
Wiedel v. Wiedel
300 Neb. 13 (Nebraska Supreme Court, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
743 N.W.2d 67, 274 Neb. 686, 2007 Neb. LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gress-v-gress-neb-2007.