Metcalf v. Metcalf

769 N.W.2d 386, 278 Neb. 258
CourtNebraska Supreme Court
DecidedAugust 7, 2009
DocketS-07-1346
StatusPublished
Cited by70 cases

This text of 769 N.W.2d 386 (Metcalf v. Metcalf) 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
Metcalf v. Metcalf, 769 N.W.2d 386, 278 Neb. 258 (Neb. 2009).

Opinion

769 N.W.2d 386 (2009)
278 Neb. 258

Kenneth Ross METCALF, appellant,
v.
Rita Jo METCALF, appellee.

No. S-07-1346.

Supreme Court of Nebraska.

August 7, 2009.

*388 Paul E. Galter, of Butler, Galter, O'Brien & Boehm, Lincoln, for appellant.

Kristina M. Teague and Donald H. Bowman, of Bowman & Krieger, Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, and McCORMACK, JJ.

McCORMACK, J.

NATURE OF CASE

Kenneth Ross Metcalf filed a complaint to modify, seeking a reduction in his alimony obligation. The district court denied his complaint, and a few months later, Kenneth filed a second complaint to modify, again seeking a reduction in his alimony obligation. The district court denied the second complaint, concluding that since the denial of Kenneth's first complaint, he failed to show that there had been a material change in circumstances warranting a reduction in his alimony. Kenneth appealed, and the Nebraska Court of Appeals affirmed. We granted Kenneth's petition for further review.

BACKGROUND

Kenneth and Rita Jo Metcalf were divorced in 1999, and in the decree of dissolution entered on March 18, 1999, the district court ordered Kenneth to pay Rita alimony of $2,000 per month for a period of 120 months beginning April 1. In the original dissolution decree, Kenneth's monthly gross income was determined to be $8,211 per month, or $98,532 per year. Rita's income was determined to be $1,337 per month, or $16,044 per year.

On March 31, 2005, Kenneth filed a complaint seeking a reduction of his alimony obligation, alleging that since 1999, his income decreased and Rita's income increased. The court held a hearing on the matter on December 20, 2005, and on January 26, 2006, the court entered an order denying modification. The court concluded that Kenneth failed to prove a material and substantial change in circumstances had occurred to warrant modification. Kenneth did not appeal this order, but instead, on March 15, he filed a second complaint for modification of alimony.

The district court held an evidentiary hearing regarding Kenneth's second complaint to modify alimony. Rita filed a motion in limine asking the court to exclude any evidence presented at the first modification hearing that would show that there had been a material change in circumstances warranting a reduction in alimony. Rita asserted that any such evidence was barred by collateral estoppel. The court limited the evidence at the second hearing, allowing only evidence of changes which occurred after December 20, 2005, the date the first hearing was held.

An evidentiary hearing was held before the district court in the current modification proceedings on October 15, 2007. Kenneth has worked as a chiropractic physician *389 for 23 years. Kenneth is currently married, and his wife is employed as a nurse. Kenneth testified with respect to his current health, indicating that he has issues with "arthritic changes" in his knees and hands which limit him to a degree in his work as a chiropractor and that he has recently experienced problems with dizziness. While Kenneth had health insurance at the time of the divorce in 1999, he did not have health insurance at the time of the second modification hearing, because he does not have funds to pay for insurance.

Before becoming a chiropractor, Kenneth was a licensed funeral director and embalmer. At the time of the second modification hearing, Kenneth had investigated other employment with three local funeral firms because of the diminishing income in his current profession. Kenneth hoped to find employment within the limitations of his current physical issues, but he has not been able to find employment with a funeral firm that would eliminate the need for lifting and carrying associated with that business.

At the second modification hearing, the court took judicial notice of the original divorce decree and certain other exhibits, which were received into evidence at the first modification hearing. These exhibits show that Kenneth's average yearly income for 1996 through 2004 was $112,703 ($114,918 in 1996, $98,533 in 1997, $95,000 in 1998, $99,787 in 1999, $140,981 in 2001, $159,091 in 2002, $44,070 in 2003, and $149,244 in 2004; no income for 2000 was shown on the exhibit). The court also took judicial notice of Kenneth's 2004 tax return, showing income of $149,244, and a financial statement Kenneth submitted to his bank dated May 24, 2005, which showed that Kenneth's income was $80,000.

At the second modification hearing, Kenneth introduced his 2005 and 2006 tax returns into evidence. The returns show that his net income from self-employment was $50,047 in 2005 and $50,293 in 2006. Kenneth admitted that his 2005 and 2006 tax returns did not show a change in his income, but Kenneth testified that he discovered some accounting errors which affected his 2005 income and expense figures.

According to Kenneth, his 2005 income was less than what his income tax return showed, because he incurred $20,000 in unpaid business debts in 2005. Kenneth testified that he did not have the money to pay those expenses but had he been able to, his income would have been less than what his 2005 return showed. Kenneth, however, was unable to produce any receipts proving that such unpaid debts existed. These debts were ultimately discharged in bankruptcy.

Kenneth also testified that his employee made a billing error in 2004 and 2005, the result of which was that Kenneth's computer erroneously showed that billings were sent when in fact they were not. According to Kenneth, his 2006 income included money not earned in 2006 but received as a result of sending out bills that should have been sent out in 2004 or 2005. Kenneth testified that approximately half of his 2006 income was income that was actually earned in 2004 or 2005.

Kenneth also explained how his financial state had changed since the first modification proceeding. Kenneth had a retirement account of approximately $35,000, but he cashed it in incrementally starting in 2003, attempting to avoid bankruptcy. Kenneth eventually filed a chapter 7 bankruptcy petition and received a discharge. However, Kenneth still owes $21,000 to the Internal Revenue Service that was not *390 discharged, and he is making payments of $250 per month to pay off that debt.

Additionally, Kenneth deeded his home back to the mortgage lender after foreclosure proceedings were initiated, and he gave back the 2004 Dodge Durango he was leasing. He now drives a 1996 Toyota Camry with approximately 140,000 miles on it. Because of Kenneth's alleged decrease in income, Kenneth no longer has health insurance. Kenneth also had to eliminate his full-time employee position in 2006. Further, Kenneth testified that he has continued to experience a gradual decline in new patients and services rendered, but Kenneth provided no explanation as to why he was losing patients. At the time of the second hearing, Kenneth testified that his net income was about $3,000 per month.

Kenneth was also questioned about his criminal history. In 1995, Kenneth was found guilty of debauching a minor, a Class I misdemeanor. Rita argues that if Kenneth's income has decreased, it is likely a result of his criminal history, which is a result of his own wrongdoing, and that therefore, modification is not warranted.

At the second modification hearing, Rita testified about her financial situation, and the court took judicial notice of Rita's income tax returns for 2003 and 2004. Her tax returns show income of $39,267 for 2003 and $64,708 for 2004.

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Bluebook (online)
769 N.W.2d 386, 278 Neb. 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metcalf-v-metcalf-neb-2009.