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Drabbels v. Drabbels

Court of Appeals of Nebraska

October 3, 2017

MICHELLE R. DRABBELS, APPELLEE AND CROSS-APPELLANT,
v.
DARREN W. DRABBELS. APPELLANT AND CROSS-APPELLEE.

         1. Divorce: Child Support: Appeal and Error. An appellate court's review in an action for dissolution of marriage is de novo on the record to determine whether there has been an abuse of discretion by the trial judge. This standard of review applies to the trial court's determinations regarding child support.

         2. Judges: Words and Phrases. A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result.

         3. Evidence: Appeal and Error. When evidence is in conflict, an appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

         4. Child Support: Insurance: Proof. In calculating a party's child support obligation, a deduction shall be allowed for the monthly out-of-pocket cost to the parent for that particular parent's health insurance so long as the parent requesting the deduction submits proof of the actual cost incurred for health insurance.

         5. ___: ___: ___. In calculating a party's child support obligation, the increased cost to a parent for health insurance for the child shall be prorated between the parents; the parent paying the premium receives a credit against his or her share of the monthly support, provided that the parent requesting the credit submits proof of the cost of health insurance coverage for the child.

         6. Child Support. In calculating child support, the total monthly income of a parent should include earnings derived from all sources.

         7. ___. While a court is allowed to add in-kind benefits, derived from an employer or other third party, to a party's income, a court's findings [25 Neb.App. 103] regarding an individual's level of income should not be based on the inclusion of income that is entirely speculative.

         8. Child Support: Pensions. In calculating child support, a parent may receive a deduction for contributions to a retirement plan.

         Appeal from the District Court for Sheridan County: Travis P. O'Gorman, Judge.

          Jerrod P. Jaeger, of Jaeger Law Office, PC, L.L.O., for appellant.

          Andrew W. Snyder, of Chaloupka, Holyoke, Snyder, Chaloupka & Longoria, PC, L.L.O., for appellee.

          Moore, Chief Judge, and Bishop and Arterburn, Judges.

          ARTERBURN, JUDGE.

         INTRODUCTION

         Darren W. Drabbels appeals, and Michelle R. Drabbels cross-appeals, from the decree of dissolution entered by the district court for Sheridan County, which decree dissolved their marriage, awarded them joint legal custody of their daughter, awarded Michelle physical custody of their daughter, and ordered Darren to pay child support. At issue in this appeal is the district court's calculation of Darren's child support obligation. Upon our review, we conclude that the district court erred in calculating Darren's monthly income and in failing to allocate childcare expenses between the parties. As a result, we must modify that portion of the decree which concerns child support. In addition, we must remand the cause to the district court to enter an order allocating childcare expenses between the parties.

         BACKGROUND

         Darren and Michelle were married on September 26, 2009. There was one child born during the marriage; a daughter, born in January 2013. The parties separated in October 2014. [25 Neb.App. 104] Michelle filed a complaint for dissolution of the marriage on April 27, 2015. In the complaint, she specifically asked that the parties' marriage be dissolved, that their marital assets and debts be equitably divided, and that she be awarded custody of their daughter and child support.

         On December 28, 2015, the district court entered a temporary order which awarded Michelle physical and legal custody of the parties' daughter pending the dissolution trial. The temporary order also awarded Michelle $500 per month in child support.

         Trial was held on June 28 and August 17, 2016. During the trial, the evidence presented by both parties focused primarily on custody of the parties' daughter, the division of marital property, and the proper amount of child support to be paid by Darren. In this appeal, neither party challenges the district court's decisions concerning custody or the division of property. As such, our recitation of the evidence presented at the trial focuses on only that evidence relating to child support and childcare expenses.

         Michelle testified that she is currently employed as a dental office manager. She has been employed there since 2011 and earns $20 per hour. Michelle testified that she receives certain benefits as a result of her employment, including free dental care, the option to obtain health insurance, and a "40 IK where [the company] matches 3 percent of what I put in there." Michelle indicated that Darren currently provides their daughter with health insurance through his employer. Michelle testified that while she could provide health insurance for their daughter, she believes that it would be best for their daughter to remain on Darren's insurance plan. Michelle also indicated that their daughter attends daycare and that she and Darren have been splitting the cost of this daycare since at least January 2016. Michelle testified that she wanted this arrangement to continue.

         Darren testified that he is currently employed by a public power district as a journeyman lineman. As a part of [25 Neb.App. 105] his employment, he is a member of a union. In 2016, he earned $33.35 per hour. In addition to his hourly wages, he receives certain "fringe benefits" as a result of his employment. These benefits include health insurance and retirement benefits. Darren offered evidence which showed that in 2016, his employer paid $1, 935.52 per month for Darren's and his daughter's health insurance. Darren testified that this insurance was paid for entirely by his employer. He does not pay anything toward the insurance plan, and nothing is deducted from his paycheck to pay for this benefit. However, Darren also testified that if the cost of his insurance increases, his hourly rate of pay may be affected. Similarly, Darren offered evidence which showed that in 2016, his employer paid $12, 555.61 in retirement benefits for him. Darren testified that these retirement benefits were paid for entirely by his employer and that nothing is deducted from his paycheck to pay for this benefit. Other "fringe benefits" received by Darren in 2016 include the opportunity to earn overtime, a "Safety Award" of $107.63, and paid holiday, vacation, and sick leave. However, Darren testified that the overtime and the safety award are not "guaranteed."

         Darren testified that his monthly income should be calculated by using his hourly wage of $33.35 and adding in the amount that his employer pays for health insurance. He also indicated that when the court calculates his child support obligation, he should receive a deduction for his health ...


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