Pearson v. Pearson

285 Neb. 686, 2013 WL 1500572

• Court: Nebraska Supreme Court
• Decided: April 12, 2013
• Docket: S-12-482
• Status: Published

Opinion

Nebraska Advance Sheets 686 285 NEBRASKA REPORTS

older neighborhoods. Thus, intervention through the rental housing inspection program was clearly in the public’s interest of maintaining safe housing for tenants and safe and livable neighborhoods for La Vista’s residents. We agree with the U.S. Supreme Court that “a city’s ‘interest in attempting to preserve the quality of urban life is one that must be accorded high respect.’”16 CONCLUSION The record shows that La Vista based its distinctive treat- ment of residential rental properties on a real difference from other residential properties and that its distinctive treatment was reasonably related to legitimate goals. Accordingly, the court was correct in granting La Vista’s judgment as a matter of law. The court did not err in sustaining its motion for sum- mary judgment. Affirmed. Miller-Lerman, J., participating on briefs.

16 Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986).

K elly R. P earson, now known as K elly R. Connett, appellant, v. Steven C. P earson, appellee. ___ N.W.2d ___

Filed April 12, 2013. No. S-12-482.

1. Modification of Decree: Child Support: Appeal and Error. Modification of 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. 2. Child Support: Rules of the Supreme Court. A deviation in the amount of child support is allowed whenever the application of the Nebraska Child Support Guidelines in an individual case would be unjust or inappropriate. 3. ____: ____. Deviations from the Nebraska Child Support Guidelines must take into consideration the best interests of the child or children. 4. Visitation. As with other visitation determinations, the matter of travel expenses associated with visitation is initially entrusted to the discretion of the trial court. Nebraska Advance Sheets PEARSON v. PEARSON 687 Cite as 285 Neb. 686

5. Child Support: Rules of the Supreme Court. All orders concerning child sup- port, including modifications, should include the appropriate Nebraska Child Support Guidelines worksheets. 6. ____: ____. In the event of a deviation from the Nebraska Child Support Guidelines, the trial court should state the amount of support that would have been required under the guidelines absent the deviation and include the reason for the deviation in the findings portion of the decree or order, or complete and file worksheet 5 in the court file. 7. Child Support: Rules of the Supreme Court: Records: Appeal and Error. The record on appeal from an order imposing or modifying child support shall include any applicable Nebraska Child Support Guidelines worksheets with the trial court’s order. Failure to include such worksheets in the record will result in summary remand of the trial court’s order.

Appeal from the District Court for Douglas County: Duane C. Dougherty, Judge. Remanded with directions. Kelly T. Shattuck, of Vacanti Shattuck, for appellant. Douglas R. Switzer and Richard P. Hathaway, of Hathaway Switzer, L.L.C., for appellee. Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman, and Cassel, JJ. Stephan, J. This is an appeal from an order of the district court for Douglas County modifying a decree of dissolution by (1) per- mitting the mother to move the minor children in her custody to Alaska and (2) terminating child support. The sole issue on appeal is whether the district court abused its discretion in determining that the father’s child support obligation should be terminated because of the increased visitation expenses neces- sitated by the children’s move to Alaska. The district court’s order does not include a worksheet showing the methodol- ogy utilized by the court in determining that the child sup- port obligation should be terminated. Therefore, we remand with directions. FACTS Kelly R. Pearson and Steven C. Pearson were married in South Dakota on May 20, 1998. They have three minor chil- dren. On February 6, 2007, while residing in Nebraska, Kelly Nebraska Advance Sheets 688 285 NEBRASKA REPORTS

and Steven separated. On June 22, they entered into a marital settlement agreement. The agreement provided for joint legal custody of the children and stated that the parent with whom the children resided would control day-to-day decisions. No child support was to be paid “[d]ue to the income of each party and the number of overnights the child(ren) spend with each party . . . ,” but Kelly and Steven agreed to review the child support arrangement at least every 2 years. In a dissolution proceeding in which both parties appeared pro se, the district court for Douglas County entered an order dissolving the mar- riage on April 4, 2008. Custody and visitation were ordered as provided in the agreement. On July 25, 2008, the district court found there had been a material change in circumstances in that the children had begun receiving assistance from the State of Nebraska, and it entered an order modifying the decree. Steven was ordered to pay child support of $481 per month for three children, $416 per month for two children, and $282 per month for one child. Kelly remarried in October 2010. On February 24, 2011, she filed an application to modify the decree because child sup- port had not been reviewed for more than 3 years. Kelly also claimed it was in the best interests of the minor children that she be awarded sole legal and physical custody and asked that she be allowed to remove the minor children from Nebraska to Alaska, because her husband had a job opportunity there and the move would result in increased income for the family. Kelly requested that “child support . . . be based on a standard calculation” and that it be made retroactive to the date on which her application to modify was filed. After a trial, the district court granted Kelly’s request to remove the minor children to Alaska and found that it was in the best interests of the children that sole care, custody, and control be awarded to Kelly. The court awarded Steven visita- tion every summer beginning 10 days after school was dis- missed and ending 10 days prior to the start of school. Steven also was awarded visitation over the school spring break and over the “Christmas and New Year school holiday.” Kelly was ordered to allow the children to have reasonable and liberal contact with Steven through “webcam” access and telephone Nebraska Advance Sheets PEARSON v. PEARSON 689 Cite as 285 Neb. 686

contact. Steven was also granted visitation with the children anytime he might be in Alaska, with the provision that he give Kelly 48 hours’ advance notice. The court ordered Steven to pay all costs of transportation for visitations, except that if the airlines required a chaperone, Kelly was to pay the cost. The court terminated Steven’s child support obligations “in recognition of the greatly increased costs that [Steven] will incur in order to exercise his visitation with his minor chil- dren.” However, the district court’s order does not include a worksheet showing the court’s calculations leading to the ter- mination of Steven’s child support obligation. ASSIGNMENT OF ERROR Kelly appealed, assigning as error the district court’s ter- mination of Steven’s child support obligation. Steven did not cross-appeal from that portion of the order permitting Kelly to remove the children to Alaska. STANDARD OF REVIEW [1] Modification of 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.1 ANALYSIS In general, child support payments should be set according to the Nebraska Child Support Guidelines,2 which are promul- gated by this court pursuant to Neb. Rev. Stat. § 42-364.16 (Reissue 2008). The guidelines “shall be applied as a rebuttable presumption,” and “[a]ll orders for child support obligations shall be established in accordance with the provisions of the guidelines unless the court finds that one or both parties have produced sufficient evidence to rebut the presumption that the guidelines should be applied.”3

1 Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009). 2 Id. 3 Neb. Ct. R. § 4-203 (rev. 2011). See, also, State on behalf of A.E. v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340 (2007); Wilkins v. Wilkins, 269 Neb. 937, 697 N.W.2d 280 (2005). Nebraska Advance Sheets 690 285 NEBRASKA REPORTS

[2-4] Under the guidelines, a deviation in the amount of child support is allowed whenever the application of the guidelines in an individual case would be unjust or inappro- priate.4 Deviations from the guidelines must take into consid- eration the best interests of the child or children.5 The guide- lines specifically address adjustments in child support related to visitation: [A]n adjustment in child support may be made at the discretion of the court when visitation or parenting time substantially exceeds alternating weekends and holidays and 28 days or more in any 90-day period. During visita- tion or parenting time periods of 28 days or more in any 90-day period, support payments may be reduced by up to 80 percent. The amount of any reduction for extended parenting time shall be specified in the court’s order and shall be presumed to apply to the months designated in the order. Any documented substantial and reasonable long-distance transportation costs directly associated with visitation or parenting time may be considered by the court and, if appropriate, allowed as a deviation from the guidelines.6 As with other visitation determinations, the matter of travel expenses associated with visitation is initially entrusted to the discretion of the trial court.7 [5,6] All orders concerning child support, including modi- fications, should include the appropriate child support work- sheets.8 In the event of a deviation from the guidelines, the trial court should state the amount of support that would have been required under the guidelines absent the deviation and include the reason for the deviation in the findings portion of

4 Rutherford v. Rutherford, 277 Neb. 301, 761 N.W.2d 922 (2009); Gress v. Gress, 271 Neb. 122, 710 N.W.2d 318 (2006). 5 See, id.; § 4-203. 6 Neb. Ct. R. § 4-210 (emphasis supplied). 7 State on behalf of Pathammavong v. Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004); Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002). 8 Rutherford v. Rutherford, supra note 4. See § 4-203. Nebraska Advance Sheets PEARSON v. PEARSON 691 Cite as 285 Neb. 686

the decree or order, or complete and file worksheet 5 in the court file.9 In this case, the only child support worksheet included in the record is one prepared by Steven’s counsel, which was received “as an aid” to the court. It reflects that Steven’s monthly child support obligation would be $1,149 for three children, $995 for two children, and $675 for one child. There is no worksheet attached to the district court’s order, and the order makes no reference to the worksheet submitted by Steven’s counsel. [7] In Rutherford v. Rutherford,10 we held that a trial court abused its discretion by failing to complete a worksheet docu- menting the method it used to determine the modification of child support. We reasoned that without a worksheet specify- ing the trial court’s calculations and delineating any devia- tions it took into consideration, an appellate court was unable to undertake any meaningful review. We held that if a trial court fails to prepare the applicable worksheets, the parties are required to request that such worksheets be included in the trial court’s order. And we concluded that effective upon the filing of the Rutherford opinion, “the record on appeal from an order imposing or modifying child support shall include any applicable worksheets with the trial court’s order. Failure to include such worksheets in the record will result in summary remand of the trial court’s order.”11 Based upon our holding in Rutherford, we remand this cause to the district court with directions to complete the applicable worksheets and provide evidence in the court order of the calculations used to deter- mine child support. In the interests of judicial efficiency, and because we have not previously written on the factors to be considered in deter- mining whether travel expenses relating to visitation should be allowed as a deviation from the guidelines under § 4-210, we note our agreement with the principles stated in Hokomoto

9 Rutherford v. Rutherford, supra note 4; Jensen v. Jensen, 275 Neb. 921, 750 N.W.2d 335 (2008). 10 Rutherford v. Rutherford, supra note 4. 11 Id. at 308, 761 N.W.2d at 927. Nebraska Advance Sheets 692 285 NEBRASKA REPORTS

v. Turnbull,12 a recent memorandum opinion of the Nebraska Court of Appeals. Only reasonable transportation expenses may reduce or abate a child support obligation. Allowing unlimited abatement of child support, to the point where the custodial parent receives substantially reduced or no child support, is contrary to the children’s best interests. As other courts have noted, a custodial parent has some fixed and constant expenses in raising children, and these expenses do not decrease dur- ing extended periods of visitation with the noncustodial par- ent.13 These expenses certainly do not decrease simply because transportation costs significantly increase. On remand, the court must consider the impact of the increased transporta- tion expenses on both parents in light of the best interests of the children. CONCLUSION The cause is remanded with directions that the district court receive any additional evidence it deems relevant and mate- rial on the issue of child support modification and that it pre- pare an order of modification consistent with Rutherford and this opinion. R emanded with directions. McCormack, J., participating on briefs.

12 Hokomoto v. Turnbull, No. A-11-704, 2012 WL 2849311 (Neb. App. July 10, 2012) (selected for posting to court Web site). 13 See, e.g., Plymale v. Donnelly, 157 P.3d 933 (Wyo. 2007); Abbott v. Abbott, 25 P.3d 291 (Okla. 2001); Gatliff v. Gatliff, 89 Ohio App. 3d 391, 624 N.E.2d 779 (1993).