Kramer v. Kramer

731 N.W.2d 615, 15 Neb. Ct. App. 518, 2007 Neb. App. LEXIS 71
CourtNebraska Court of Appeals
DecidedMay 1, 2007
DocketA-05-499
StatusPublished
Cited by1 cases

This text of 731 N.W.2d 615 (Kramer v. Kramer) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kramer v. Kramer, 731 N.W.2d 615, 15 Neb. Ct. App. 518, 2007 Neb. App. LEXIS 71 (Neb. Ct. App. 2007).

Opinion

Irwin, Judge.

I. INTRODUCTION

Stacy Lynn Kramer appeals from an order denying her application to modify a decree that dissolved her marriage to Gregory *519 Alan Kramer (Greg). On appeal, Stacy challenges the trial court’s denial of her application to modify Greg’s child support obligation and the trial court’s use of a joint physical custody worksheet in denying her application. We find that the trial court did not err in denying Stacy’s modification application because she failed to show that a material change of circumstances occurred subsequently to the entry of the original decree. We affirm.

II. BACKGROUND

On November 3, 2003, the district court entered a decree dissolving the marriage between Stacy and Greg. In the decree, the trial court awarded the parties joint legal custody of their son, Garrett, bom September 16, 2000. The court awarded Stacy physical custody, subject to Greg’s reasonable rights of parenting time. The court determined that Greg would have visitation every other weekend, from Friday after school to Monday at 8 a.m.; every Tuesday and Thursday, from after school to 8 p.m.; two 2-week periods each summer; and alternating holidays. A joint physical custody worksheet was entered into evidence as an exhibit. Based upon the parties’ stipulated agreement, the worksheet indicated that Greg would have 144 days with Garrett and Stacy would have 221 days with Garrett. The worksheet set forth Greg’s child support obligation as $111.58. The trial court did not complete a child support worksheet; nor did the trial court address the child support worksheet submitted as an exhibit. The trial court ordered Greg to pay $103 per month in child support. Neither party appealed from the decree.

On August 5, 2004, Stacy filed an application to modify the decree. She asserted in her application that there was a material change of circumstances because Greg did not have Garrett for the number of days out of the year determined by the original decree. She also asserted in her application that the trial court erred in using “sp[l]it custody” calculations. She requested that Greg be ordered to pay $476 per month in child support.

At trial, Stacy testified that the visitation schedule currently followed by the parties differs “[vjery little” from the one specified in the original decree. Both Stacy and Greg testified that Greg was currently spending more time with Garrett due to a change in his work schedule. Neither party submitted any evidence regarding any other change that had occurred subsequently *520 to the original decree. On February 15, 2005, the trial court issued an order denying Stacy’s application. The court found that Stacy failed to show a material change of circumstances, stating, “If anything, [Stacy] has proven that the increase in visitation should decrease the child support calculation.” On February 24, Stacy filed a motion for a new trial. The trial court overruled Stacy’s motion, and this appeal timely followed.

III. ASSIGNMENTS OF ERROR

Stacy has assigned two errors on appeal. First, Stacy asserts that the district court erred in refusing to grant her application for modification of child support. Second, Stacy asserts that the district court erred in improperly applying the Nebraska Child Support Guidelines.

IV. ANALYSIS

1. Standard of Review

Modification óf child support payments is entrusted to the trial court’s discretion, and although, on appeal, the issue is reviewed de novo on the record, the decision of the trial court will be affirmed absent an abuse of discretion. Gallner v. Hoffman, 264 Neb. 995, 653 N.W.2d 838 (2002). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Id.

2. Modification of Child Support

Stacy challenges the trial court’s failure to grant her application to modify Greg’s child support obligation. She argues that the trial court erroneously applied a joint physical custody worksheet when denying her application and that “the factual evidence demonstrated the parties did not have a joint custody arrangement.” We note that Stacy fails to argue that any material change of circumstances has occurred since the entry of the original decree. As such, we find no merit to her first assigned error.

A party seeking to modify a child support order must show a material change of circumstances which occurred subsequent to the entry of the original decree or a previous modification *521 which was not contemplated when the prior order was entered. Gallner v. Hoffman, supra; Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002). In the context of marital dissolutions, a material change of circumstances means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently. Gallner v. Hoffman, supra; Rauch v. Rauch, 256 Neb. 257, 590 N.W.2d 170 (1999).

Among the factors to be considered in determining whether a material change of circumstances has occurred are changes in the financial position of the parent obligated to pay support, the needs of the children for whom support is paid, and whether the change is temporary or permanent. Sneckenberg v. Sneckenberg, 9 Neb. App. 609, 616 N.W.2d 68 (2000); Rauch v. Rauch, supra.

In the instant case, Stacy fails to argue that any change of material circumstances occurred since the entry of the original decree. She fails to argue that there has been any financial change or that Garrett’s needs have changed since the entry of the original decree. Further, the evidence adduced at trial clearly indicates that Greg currently spends more time with Garrett since the entry of the original decree.

The thrust of Stacy’s second claim on appeal is that the trial court erred in using a joint physical custody worksheet when determining Greg’s child support in the original decree and when denying Stacy’s application for modification.

We cannot reach the issue of whether the trial court erroneously applied a joint physical custody worksheet in the modification order, because Stacy has failed to first show that a material change of circumstances occurred subsequently to the entry of the original decree.

In Pool v. Pool, 9 Neb. App. 453,

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Bluebook (online)
731 N.W.2d 615, 15 Neb. Ct. App. 518, 2007 Neb. App. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kramer-v-kramer-nebctapp-2007.