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McDonald v. McDonald

Court of Appeals of Nebraska

December 10, 2013

Coleen McDonald, Appellee,
v.
Del McDonald, Appellant. and State of Nebraska, Intervenor-Appellee,

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Page 577

Appeal from the District Court for Douglas County: J. RUSSELL DERR, Judge. Affirmed.

Avis R. Andrews, Fremont, for appellant.

Ronald E. Frank and Mary M. Schott, Omaha, of Sodoro, Daly & Sodoro, P.C., for appellee.

Julie Fowler, of Child Support Enforcement Office, for intervenor-appellee.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

Syllabus by the Court

1. Modification of Decree: Visitation: Child Support: Appeal and Error. Issues involving the modification of a divorce decree, parenting time, and the amount of child support are initially entrusted to the discretion of the district court, whose determinations in these matters are reviewed de novo on the record for an abuse of discretion.

2. Child Support. The trial court's discretion to award child support extends to its determination that the child support award should be retroactive.

3. Attorney Fees: Appeal and Error. An appellate court reviews a trial court's award of attorney fees for an abuse of discretion.

4. Courts: Words and Phrases. An abuse of discretion occurs when a trial court acts or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives the litigant of a substantial right or just result.

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5. Modification of Decree: Child Custody. Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action.

6. Modification of Decree: Words and Phrases. A material change in circumstances means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently.

7. Modification of Decree. Changes in circumstances which were within the contemplation of the parties at the time of the decree are not material changes in circumstances for purposes of modifying a divorce decree.

8. Modification of Decree: Child Custody: Proof. Prior to the modification of a child custody order, two steps of proof must be taken by the moving party. First, the moving party must show a material change in circumstances that affects the best interests of the child. Second, the moving party must prove that changing the child's custody is in the child's best interests.

[21 Neb.App. 536] 9. Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.

10. Modification of Decree: Child Support: Proof. A parent seeking to modify a child support award must show a material change in circumstances, including changes in the financial position of the parent obligated to pay support.

11. Child Support: Rules of the Supreme Court. Generally, child support payments should be set according to the guidelines established pursuant to Neb.Rev.Stat. ยง 42-364.16 (Reissue 2008).

12. Child Support: Rules of the Supreme Court: Presumptions. Although the child support guidelines are not to be applied with blind rigidity, child support shall be established in accordance with the guidelines, unless the court finds that one or both parties have produced sufficient evidence to rebut the presumption that the application of the guidelines will result in a fair and equitable child support order.

13. Modification of Decree: Child Custody. If trial evidence establishes a joint physical custody arrangement, courts will so construe it, regardless of how prior decrees or court orders have characterized the arrangement.

14. Child Custody: Child Support: Rules of the Supreme Court. Where parties exercise joint physical custody, the trial court must use the joint custody worksheet of the child support guidelines to calculate support.

15. Child Custody: Words and Phrases. Joint physical custody is generally defined as joint responsibility for minor day-to-day decisions and the exertion of continuous physical custody by both parents over a child for significant time periods.

16. Appeal and Error. Generally, a party cannot complain of error which the party has invited the court to commit.

17. Divorce: Minors: Stipulations. Parties in a proceeding to dissolve a marriage cannot control the disposition of matters pertaining to minor children by agreement.

18. Divorce: Modification of Decree: Child Support. The paramount concern and question in determining child support, whether in the initial marital dissolution action or in the proceedings for modification of decree, is the best interests of the child.

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19. Child Support. In determining whether to order retroactive support, a court must consider the parties' status, character, situation, and attendant circumstances. As part of that consideration, the court must consider whether the obligated party has the ability to pay the lump-sum amount of a retroactive award.

20. Modification of Decree: Child Support: Time. Absent equities to the contrary, modification of a child support order should be applied retroactively to the first day of the month following the filing date of the application for modification.

21. Child Support: Child Custody. In the determination of child support, the children and the custodial parent should not be penalized by delay in the legal process, nor should the noncustodial parent gratuitously benefit from such delay.

22. Taxation: Child Support: Alimony: Child Custody. Because a tax dependency exemption is an economic benefit nearly identical in nature to an award of child support or alimony, a trial court may exercise its equitable powers to allocate ...


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