Mace v. Mace

610 N.W.2d 436, 9 Neb. Ct. App. 270, 2000 Neb. App. LEXIS 136
CourtNebraska Court of Appeals
DecidedMay 16, 2000
DocketNo. A-99-270
StatusPublished
Cited by10 cases

This text of 610 N.W.2d 436 (Mace v. Mace) 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
Mace v. Mace, 610 N.W.2d 436, 9 Neb. Ct. App. 270, 2000 Neb. App. LEXIS 136 (Neb. Ct. App. 2000).

Opinion

Irwin, Chief Judge.

I. INTRODUCTION

Jerry D. Mace appeals from the district court’s order modifying a decree which dissolved his marriage to Wanda K. Mace, now known as Wanda K. Stranathan. On appeal, Jerry challenges the court’s modification of child support and day-care expenses and the court’s award of attorney fees to Wanda. Because we conclude that the court did not abuse its discretion in awarding day-care expenses, we affirm that portion of the modification order. Because we conclude that the court abused its discretion in awarding attorney fees to Wanda when she did not provide any evidence to establish the amount of the fees incurred, we reverse the court’s order awarding Wanda attorney fees. Because we conclude that the court abused its discretion in not considering whether a deviation was warranted because of the birth of a subsequent child of Jerry’s, we reverse, and remand for further proceedings.

II. BACKGROUND

Jerry and Wanda were married on December 11, 1982. Three children were bom as a result of the marriage: Christopher, bom June 14, 1984; Michael, bom June 7, 1988; and Anita, bom March 25, 1992. On July 28, 1992, the court entered a decree dissolving the parties’ marriage. In the decree, Wanda was [272]*272awarded custody of the children and Jerry was ordered to pay child support in the amount of $825 per month.

On March 30, 1998, Jerry filed an application to modify the decree. In the application, Jerry alleged that he had suffered a work-related injury which resulted in a reduction of his net monthly income. On April 29, Wanda filed a cross-application to modify the decree. Wanda asserted that her income had increased, that the Nebraska Child Support Guidelines had been modified, that Jerry’s income had increased, and that Jerry should be paying a portion of day-care expenses.

On January 29, 1999, the district court entered an order of modification. In the order, the court found that Jerry had not suffered a work-related injury, but that he did suffer from a medical condition which prohibited him from earning significant overtime. The court modified Jerry’s child support obligation to $775 per month, ordered Jerry to pay 70 percent of Wanda’s work-related day-care expenses, and ordered Jerry to pay $1,500 of Wanda’s attorney fees. Jerry filed a motion for new trial, which was denied on February 12. This timely appeal followed.

III. ASSIGNMENTS OF ERROR

On appeal, Jerry has assigned four errors, which we consolidate for discussion to three. First, Jerry asserts the district court erred in the calculation of child support. Second, Jerry asserts the district court erred in ordering him to pay day-care expenses. Third, Jerry asserts the district court erred in awarding Wanda attorney fees.

IV. ANALYSIS

1. Standard of Review

Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court. Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999); Dueling v. Dueling, 257 Neb. 862, 601 N.W.2d 516 (1999); Rauch v. Rauch, 256 Neb. 257, 590 N.W.2d 170 (1999). In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent con[273]*273elusions with respect to the matters at issue. Elsome v. Elsome, supra; Rauch v. Rauch, supra. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court heard and observed the witnesses and accepted one version of the facts over another. Elsome v. Elsome, supra; Rauch v. Rauch, supra. 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 and which was not contemplated when the prior order was entered. Dueling v. Dueling, supra.

2. Child Support

Jerry first contends the district court erred in the calculation of his child support obligation. Jerry alleges the court erred in including overtime income in the calculation and in not properly applying the holding of this court from the case of Prochaska v. Prochaska, 6 Neb. App. 302, 573 N.W.2d 777 (1998).

(a) Jerry’s Overtime Income

The district court found that Jerry suffered from a medical condition which causes some disability and which has some effect on Jerry’s income-producing capability. Specifically, the court found that Jerry’s medical condition, a problem with his lower back, prevents him from earning any substantial overtime pay. The court adopted Wanda’s child support worksheet and set Jerry’s net monthly income at $1,925. The worksheet offered by Jerry alleged his net monthly income to be approximately $1,550.

Jerry alleges the court erred in accepting Wanda’s worksheet because “it is apparent that her calculation included an estimate for overtime.” Brief for appellant at 9. At trial, Wanda testified that her worksheet was based upon Jerry’s employment at ConAgra, Inc., which is where he was working at the time the application to modify was filed. The evidence established that when Jerry was working at ConAgra, his hourly wage was $12.59. Based on Jerry’s working 40 hours per week at this wage rate, his annualized gross monthly income would be $2,182.27. Wanda’s worksheet estimated Jerry’s gross monthly income at $2,182. As such, it is apparent that Wanda’s work[274]*274sheet did not include overtime, but only Jerry’s earning capacity based on full-time employment.

Because the evidence does not support Jerry’s assertion that the court included estimated overtime income in the child support calculation, we do not find an abuse of discretion in the court’s child support award. This assigned error is without merit.

(b) Application of Prochaska v. Prochaska

Jerry also asserts the district court erred in the child support calculation by not properly allowing him a credit for support that he is paying to a child bom in a subsequent relationship. Specifically, Jerry asserts that this court’s holding in Prochaska v. Prochaska, supra, supports allowing a deviation from the guidelines to allow him a deduction for a child, Kirsty, born during a subsequent marriage. Jerry testified that he remarried on July 3, 1996, and that Kirsty was “age five” at the time of trial, in January 1999. Jerry testified that Kirsty was bom “as a result of’ his relationship with his new wife, that he cared for Kirsty, and that he provided support for Kirsty. However, in response to a question from his own attorney, Jerry acknowledged that he had not ever adopted Kirsty.

In an order titled “Opinion and Findings,” the district court found that “[i]t is not clear from the evidence that Jerry is the natural father” of Kirsty. The court acknowledged the holding of Prochaska v. Prochaska, supra,

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610 N.W.2d 436, 9 Neb. Ct. App. 270, 2000 Neb. App. LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mace-v-mace-nebctapp-2000.