Meyers v. Meyers

383 N.W.2d 784, 222 Neb. 370, 1986 Neb. LEXIS 908
CourtNebraska Supreme Court
DecidedMarch 28, 1986
Docket85-387
StatusPublished
Cited by24 cases

This text of 383 N.W.2d 784 (Meyers v. Meyers) 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
Meyers v. Meyers, 383 N.W.2d 784, 222 Neb. 370, 1986 Neb. LEXIS 908 (Neb. 1986).

Opinions

Per Curiam.

The mother, Bernadet Meyers, appeals from the order dismissing her October 9, 1984, application to modify a prior decree of dissolution. Specifically, the application seeks a $200-per-month increase in the amount of child support the father, Victor J. Meyers, had been ordered to pay her as the custodial parent of the parties’ handicapped son, David Joseph; an order requiring the father to continue said payments beyond the son’s minority; and other equitable relief. The mother assigns as errors the district court’s (1) finding that there had been no material change in circumstances such as to warrant a change in child support payments during the son’s minority, (2) holding that it had no authority to continue child support payments beyond the son’s minority and thus refusing to accept evidence with respect to the son’s needs after majority, [372]*372and (3) ruling that the mother was not entitled to the award of an attorney fee. We affirm in part and in part reverse and remand with direction.

The son became 19 years of age, and thus attained majority, on February 9, 1985. The parties’ April 1982 decree of dissolution ordered the father to pay child support in the amount of $150 per month for the eldest child of the parties, now an adult, $300 per month for the subject son, who has suffered from the effects of cerebral palsy since birth, and $300 per month for the youngest child, now age 14, “until such time as each child respectively is emancipated, dies, or reaches his majority.”

At the beginning of the May 7, 1985, hearing on the modification application, the trial judge stated that he deemed the court to be without authority to award any support after the son attained majority. The trial court therefore ruled that only evidence relevant to the amount of support needed between the date of the application and the son’s majority would be admissible.

Dr. William David Maclnnes, a licensed clinical psychologist certified in clinical neuropsychology, conducted a neuropsychological evaluation of the son and concluded that the son’s primary abnormalities were manifestations of his cerebral palsy. Through an offer of proof, Dr. Maclnnes gave his opinion that the son, who had been in a special program at his high school until his senior year because of his handicaps, could not function in a normal college setting and, likewise, could not successfully work at a j ob. It is Dr. Maclnnes ’ opinion that the son needs to attend a special college program for handicapped students. Dr. Maclnnes also stated that the son’s cerebral palsy would become more of a handicap as he became older, since he had not developed the skills necessary to meet society’s expectations of an adult.

The mother offered to prove that the son’s future educational expenses would be approximately $4,225 per year. She also offered to prove that “during the last year or two,” the son needed services and eyeglasses which she could not obtain because she lacked funds with which to pay for them. These were as follows, each having the fair and reasonable value [373]*373indicated:

Eye examination and glasses $ 150
Capping of teeth 3,000
Speech therapy 3,536
Dermatology services 300
Total $6,986

Objections that the offers were not relevant were initially sustained, but, later, evidence concerning the $6,986 of needs was received.

The mother’s total income for 1982 was $16,472, of which $15,572 came from wages; her 1984 total income of $18,674 included $17,975 from wages. At the time of the hearing she was earning $17,544 per year. She testified to monthly expenses of $1,682.25. An objection to the mother’s effort to prove that she owed various creditors $10,409 because of expenses incurred on behalf of the son was properly sustained, as the discussion concerning the second assignment of error demonstrates, because the exhibit did not designate which expenses were incurred prior to the son’s 19th birthday.

In 1982 the father had a total income of $45,048, of which $44,903 was from wages; his 1983 total income of $51,841 included wages of $51,268; his 1984 wages totaled $41,465.74; and his 1985 wages amounted to $47,706.60. Other than the child support payments mentioned earlier, the father’s monthly expenses total, for himself, his current wife, and her two children, approximately $2,565.

We begin our analysis of the mother’s first assignment of error by again noting that child support payments are not subject to modification unless there has occurred since the entry of the prior order a material change of circumstances not in the contemplation of the parties and of such a nature as to require modification in the best interests of the child. Graber v. Graber, 220 Neb. 816, 374 N.W.2d 8 (1985); Tworek v. Tworek, 218 Neb. 808, 359 N.W.2d 764 (1984); Helgenberger v. Helgenberger, 209 Neb. 184, 306 N.W.2d 867 (1981). While we have recognized that the phrase “material change in circumstances” eludes precise definition, we have held that it results from an alteration and passage from one condition to [374]*374another. The determination of whether such a change has occurred involves a consideration of whether there has been a change in the financial resources of the parents, the needs of the child for whom support is paid, and whether the change in circumstances is temporary or permanent. Graber v. Graber, supra; Soukup v. Soukup, 208 Neb. 672, 305 N.W.2d 372 (1981). Questions relating to the modification of child support are initially entrusted to the sound discretion of the trial court, and, while on appeal such matters will be reviewed de novo on the record, the decision of the trial court will be affirmed in the absence of an abuse of its discretion. Graber v. Graber, supra.

Although whether there has been a material change of circumstances is a matter necessarily considered on a case-by-case basis, a review of past similar cases is helpful in determining the outcome of the issue in this case.

In Graber v. Graber, supra, the mother sought to increase the amount of child support the father was required to pay. This the court refused to do, noting that while the father’s gross income had increased, his adjusted gross income had decreased. Further, the mother’s adjusted gross income had substantially increased, and the illness which prevented her from working at the time of the modification hearing was temporary in nature. The other alleged changes, an increased mortgage payment and private schooling for the children, were held to be within the parties’ contemplation at the time of the decree sought to be modified.

Soukup v. Soukup, supra, refused to increase the father’s child support obligation where the evidence indicated that neither the father nor the mother had experienced a substantial change in financial circumstances.

An increase in child support was affirmed in Pfeiffer v. Pfeiffer, 201 Neb. 56, 266 N.W.2d 82 (1978), in part because of a significant increase in the father’s income.

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Bluebook (online)
383 N.W.2d 784, 222 Neb. 370, 1986 Neb. LEXIS 908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meyers-v-meyers-neb-1986.