Lodden v. Lodden

497 N.W.2d 59, 243 Neb. 14, 1993 Neb. LEXIS 92
CourtNebraska Supreme Court
DecidedMarch 19, 1993
DocketS-90-897
StatusPublished
Cited by14 cases

This text of 497 N.W.2d 59 (Lodden v. Lodden) 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
Lodden v. Lodden, 497 N.W.2d 59, 243 Neb. 14, 1993 Neb. LEXIS 92 (Neb. 1993).

Opinions

Per Curiam.

In 1990, Wendi Kyle Lodden (wife) requested, on the grounds that there had been a material change in circumstances, and later received, a modification of a 1980 marital dissolution decree for child support for a daughter born of wife’s marriage to Terry Joe Lodden (husband).

Under the 1980 decree, wife was awarded custody of the daughter, then 1 year old, and husband was ordered to pay child support in the amount of $200 per month.

On March 9, 1990, wife filed a petition for modification of the decree, seeking an increase in child support. She alleged that a change in circumstances had occurred after the 1980 decree, resulting in an increase in the cost of care, education, maintenance, and support of the daughter. Wife further alleged a change in circumstances by virtue of the economic status of the parties and the adoption of the Nebraska Child Support Guidelines.

At trial, wife testified that she was employed and earned approximately $20,000 per year. She also testified that increased expenses related to raising the daughter included the cost of music and dance lessons, food, clothing, and prescription drugs. Husband testified that he was employed and earned approximately $33,000 per year. He also testified that he paid all of his daughter’s medical expenses that were submitted to him and that he had remarried and had adopted his present wife’s 10-year-old son. His present wife works as a registered nurse and earns approximately $26,000 per year. Husband offered two child support calculations, one showing the net income and support calculations between him and his former wife, and the second showing calculations regarding him and his present wife for the support of their 10-year-old son.

After considering the evidence, the court found that there had been material changes in the circumstances of the parties and modified the decree to require husband to pay child [16]*16support in the amount of $300 per month.

Husband alleges that the district court erred (1) in finding that there had been a material change in the circumstances of the parties when wife failed to present evidence regarding the circumstances of the parties at the time of the 1980 decree or to substantiate the alleged changes in circumstances, and (2) in failing to consider husband’s obligation to provide support for the child of his second marriage in determining the proper amount of support under the Nebraska Child Support Guidelines.

“The standard of review for modification of a child support order is de novo on the record, and the decision of the trial court will be affirmed absent an abuse of discretion. Sanchez v. Sanchez, 231 Neb. 963, 439 N.W.2d 82 (1989). When the evidence is conflicting in a child support modification hearing, this court may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another. See, Dobbins v. Dobbins, 226 Neb. 465, 411 N.W.2d 644 (1987); Graber v. Graber, 220 Neb. 816, 374 N.W.2d 8 (1985).”

Lauenstein v. Lauenstein, 241 Neb. 521, 522, 489 N.W.2d 828 (1992) (quoting Schmitt v. Schmitt, 239 Neb. 632, 477 N.W.2d 563 (1991)).

“The paramount concern and question in determining child support, whether in the initial marital dissolution action or in proceedings for modification of a decree, is the best interests of the child.” Schulze v. Schulze, 238 Neb. 81, 85, 469 N.W.2d 139, 142 (1991) (citing Dobbins v. Dobbins, 226 Neb. 465, 411 N.W.2d 644 (1987); Wagner v. Wagner, 224 Neb. 155, 396 N.W.2d 282 (1986)).

“Modification of child support is an issue entrusted to the discretion of the trial court.” Dobbins v. Dobbins, 226 Neb. at 467, 411 N.W.2d at 645. Accord Wilson v. Wilson, 224 Neb. 589, 399 N.W.2d 802 (1987). “A proceeding to modify a judgment for child support is not a retrial of the original case or a review of the equities of the original decree.” Tworek v. Tworek, 218 Neb. 808, 809, 359 N.W.2d 764, 765 (1984). Accord Wagner v. Wagner, supra. “Modification of an award [17]*17of 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.” Dobbins v. Dobbins, 226 Neb. at 467, 411 N.W.2d at 645. Accord Graber v. Graber, 220 Neb. 816, 374 N.W.2d 8 (1985).

In Morisch v. Morisch, 218 Neb. 412, 413, 355 N.W.2d 784, 785-86 (1984), this court established the rule that

“[mjaterial change in circumstances” in reference to modification of child support is analogous to modification of alimony for “good cause.” See Neb. Rev. Stat. § 42-365 (Cum. Supp. 1982); cf. Chamberlin v. Chamberlin, 206 Neb. 808, 814, 295 N.W.2d 391, 395 (1980) (modification of alimony on account of a “change of circumstances of a material and substantial nature”). “Material change in circumstances” eludes precise and concise definition. Courts may consider various factors to determine if a material change in circumstances has occurred. Among some of the factors or circumstances considered by a court are a change in the financial resources or ability to pay on the part of the parent obligated to pay support, needs of the child or children for whom support is paid, good or bad faith motive of the obligated parent in sustaining a reduction of income, and the duration of the change, namely, whether the change is temporary or permanent. See 24 Am. Jur. 2d Divorce and Separation §§ 1082-1088 (1983). Alteration and passage from one condition to another is essential for a material change in circumstances.

Accord, Schulze v. Schulze, supra; Wilson v. Wilson, supra; Graber v. Graber, supra.

However, this court has also held that

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 [18]*18of dissolution.

Graber v. Graber, 220 Neb. at 819, 374 N.W.2d at 10.

In Wagner, this court limited

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Lodden v. Lodden
497 N.W.2d 59 (Nebraska Supreme Court, 1993)

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Bluebook (online)
497 N.W.2d 59, 243 Neb. 14, 1993 Neb. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lodden-v-lodden-neb-1993.