Wilson v. Wilson

399 N.W.2d 802, 224 Neb. 589, 1987 Neb. LEXIS 781
CourtNebraska Supreme Court
DecidedJanuary 23, 1987
Docket86-251
StatusPublished
Cited by43 cases

This text of 399 N.W.2d 802 (Wilson v. Wilson) 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
Wilson v. Wilson, 399 N.W.2d 802, 224 Neb. 589, 1987 Neb. LEXIS 781 (Neb. 1987).

Opinion

White, J.

This is an appeal from the district court for Saline County. The parties to this case, Sandra Jean Wilson and Richard Alan Wilson, were divorced on October 4, 1982. As part of the decree the court approved a property settlement agreement. The property settlement agreement provided for the joint custody of their four children. Specifically, the appellee, Sandra Wilson, was awarded custody of the children during the school year, and the appellant had rights of visitation during every other weekend and holiday. The custody and visitation arrangements were reversed during the summer months. Richard Wilson was also ordered to pay $50 per month per child *590 during the time when the children were with their mother, but was excused from payment during the time the children were with him. In an addendum to the original property settlement, the appellant was ordered to pay one-half of all medical expenses and to obtain and maintain health insurance coverage on the children.

In March of 1984 the decree was modified to provide that the appellant pay a total of $200 per month child support except in any month in which he has the children 25 days or more. The appellant was also ordered to pay all reasonable and necessary medical expenses incurred by the children.

The third and final modification of the visitation, custody, and support rights came in March of 1986. The appellee was given custody of the children. The appellant was given visitation for 30 days in the summer, along with every other weekend, and was excused from the payment of support during that time. The appellant was permitted to pick up his children at 6 p.m. on Friday and return them at 7 p.m. on Sunday. He was also ordered to maintain present health care obligations.

This appeal follows the final modification. Appellant assigns error to the trial court’s modification of the custody, support, and visitation provisions of the decree. We affirm as modified.

Addressing the issue of the custody of the four minor children, the appellant argues that the trial court erred in changing the custody of the Wilson children from joint custody in both parents to custody in the children’s mother. Neb. Rev. Stat. § 42-364(3) (Cum. Supp. 1986) permits joint custody only in situations where both parents agree, and then only after a public hearing is conducted on that issue. Regardless of any agreement by the parents on the outcome of the public hearing, the court must find that joint custody is in the best interests of the children.

We have, in our previous opinions on the issue of joint custody, stated explicitly that joint custody is not favored and must be reserved for only the rarest of cases. Trimble v. Trimble, 218 Neb. 118, 352 N.W.2d 599 (1984); Korf v. Korf, 221 Neb. 484, 378 N.W.2d 173 (1985). Although each parent has shown only love and affection for the children, our review of the record makes apparent that the Wilsons’ inability to *591 agree on custody arrangements has disrupted the children’s home life and caused much unneeded stress. Although each parent is capable of providing a secure and happy home for the children, it is in the best interests of the children that there be only one custodial parent. From a de novo review of the record, which we are required to conduct, we find that the district court has made an admirable effort to find a solution for a situation in which none is really apparent. We find no abuse of discretion and affirm the district court’s placement of the custody of the children with the appellee.

Appellant next assigns as error the district court’s change of child support from a total of $200 per month to $120 per month per child. Questions relating to the modification of child support are entrusted to the sound discretion of the trial court. Although our review is de novo on the record, absent an abuse of discretion on the part of the trial court the decision of the trial court will be affirmed on appeal. Wagner v. Wagner, ante p. 155, 396 N.W.2d 282 (1986).

The rule is well established that, absent a material change of circumstances, child support payments are not subject to modification. Graber v. Graber, 220 Neb. 816, 374 N.W.2d 8 (1985). The record reveals that the appellant’s income has increased from over $10,000 in 1983 to over $19,000 in 1984. The appellant argues that this increase in income does not justify the lower court’s increase in support payments. The appellee testified in court that the $200 per month she currently received in child support barely enabled her to feed the children and did not provide extra money to pay any additional expenses.

In Morisch v. Morisch, 218 Neb. 412, 413, 355 N.W.2d 784, 785-86 (1984), this court enumerated the situations which would meet the requirement of a material change of circumstances as follows:

“Material 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 *592 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.

(Emphasis supplied.)

We also notq Pfeiffer v. Pfeiffer, 201 Neb. 56, 266 N.W.2d 82 (1978), where a change in support obligations was partially justified by the increase in the father’s salary, and Meyers v. Meyers, 222 Neb. 370, 383 N.W.2d 784

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Bluebook (online)
399 N.W.2d 802, 224 Neb. 589, 1987 Neb. LEXIS 781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-wilson-neb-1987.