Benjamin D. Johnson, appellant,
Vanessa R. Johnson, appellee
1. Modification of Decree: Child Support: Appeal and Error. An appellate court reviews proceedings for modification of child support de novo on the record and will affirm the judgment of the trial court absent an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.
3. Motions to Dismiss: Directed Verdict: Appeal and Error. For purposes of appellate review, a motion to dismiss and a motion for directed verdict are treated similarly.
4. Motions to Dismiss: Proof. In the context of a motion to dismiss made at the close of all of the evidence in a proceeding on an application to modify a dissolution decree, in a court's review of evidence on a motion to dismiss, the nonmoving party is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can be reasonably drawn therefrom, and where the plaintiff's evidence meets the burden of proof required and the plaintiff has made a prima facie case, the motion to dismiss should be overruled.
5. Motions to Dismiss. If, on a motion to dismiss, there is any evidence in favor of the nonmoving party, the case may not be decided as a matter of law.
6. ___. When a trial court sustains a motion to dismiss, it resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw only one conclusion.
7. Modification of Decree: Child Support: Proof. A party is entitled to a modification of an award of child support if he proves a material change in circumstances which has occurred since the entry of the decree or a previous modification and if such change was not contemplated when the decree was entered.
8. Child Support: Evidence. Earning capacity should be used in determining a child support obligation only when there is evidence that the parent can realize that capacity through reasonable efforts.
9. ___: ___. When the evidence demonstrates that a parent is unable to realize a particular earning capacity by reasonable efforts, it is clearly untenable for the trial court to attribute that earning capacity to the parent for purposes of determining child support.
10. Modification of Decree: Child Support: Rules of the Supreme Court. Changes in career or occupation which reduce the ability to provide child support are allowed, so long as they are made in good faith, and future support obligations should generally be based on present income and the Nebraska Child Support Guidelines.
11. Modification of Decree: Child Support: Evidence. The decision of whether to modify a child support obligation must be based upon the evidence presented by [20 Neb.App. 896] the parties, and it would be improper for the court to focus on anything but the most recent circumstances ascertainable from the evidence. 12. Modification of Decree: Child Support. Among the relevant factors to be considered in determining whether a material change of circumstances has occurred is any change in the financial position of the parent obligated to pay child support.
Appeal from the District Court for Douglas County: W. Russell Bowie III, Judge.
Benjamin M. Belmont and Amanda M. Phillips, of Brodkey, Peebles, Belmont & Line, L.L.P, for appellant.
Brent M. Kuhn, of Harris Kuhn Law Firm, L.L.P, for appellee.
Inbody, Chief Judge, and Irwin and Moore, Judges.