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Roberts v. Roberts

Court of Appeals of Nebraska

October 24, 2017

Keith M. Roberts, appellant and CROSS-APPELLEE,
v.
DlANA S. ROBERTS, APPELLEE AND CROSS-APPELLANT.

         1. Modification of Decree: Child Support: Appeal and Error. Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court. The same standard applies to the modification of child support.

         2. Modification of Decree: Attorney Fees: Appeal and Error. In an action for modification of a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion.

         3. Child Support. The primary concern in determining child support is the best interests of the children.

         4. Child Support: Rules of the Supreme Court. The main principle behind the Nebraska Child Support Guidelines is to recognize the equal duty of both parents to contribute to the support of their children in proportion to their respective incomes.

         5. ___: ___. In general, child support payments should be set according to the Nebraska Child Support Guidelines, which compute the presumptive share of each parent's child support obligation.

         6. Actions: Equity: Child Support: Rules of the Supreme Court. The Nebraska Supreme Court has favored a flexible approach to determining a parent's income for child support proceedings because such actions are, despite the Nebraska Child Support Guidelines, equitable in nature.

         7. Child Support. While a court calculating child support is permitted to add in-kind benefits derived from an employer to a party's income, inclusion of such benefits is not required.

          [25 Neb.App. 193] 8. Alimony: Child Support. Alimony is not an item of income in calculating child support. 9. Alimony: Child Support: Rules of the Supreme Court. The language in Neb. Ct. R. § 4-213 of the Nebraska Child Support Guidelines clearly provides that child support obligations are to be calculated prior to the calculation of alimony.

         10. Child Support. The use of earning capacity in calculating child support is useful when it appears that the parent is capable of earning more income than is presently being earned.

         11. Modification of Decree: Child Support: Proof. A party can modify a prior child support order by showing that there has been a material change in circumstances since the entry of the court's prior order.

         12. Child Support: Rules of the Supreme Court. Generally, parties' child support obligations should be set according to the provisions set forth in the Nebraska Child Support Guidelines.

         13. ___: ___. A court may deviate from the Nebraska Child Support Guidelines, but only if it specifically finds that a deviation is warranted based on the evidence.

         14. ___: ___. Without a clearly articulated justification, any deviation from the Nebraska Child Support Guidelines is an abuse of discretion.

         15. Equity: Modification of Decree: Child Support: Time. Absent equities to the contrary, the general rule is that the modification of a child support order should be applied retroactively to the first day of the month following the filing day of the application for modification.

         16. Child Custody: Time. A child and custodial parent should not be penalized, if it can be avoided, by the delay inherent in our legal system.

         17. Modification of Decree: Time: Appeal and Error. The initial determination regarding the retroactive application of a modification order is entrusted to the discretion of the trial court and will be affirmed on appeal absent an abuse of discretion.

         18. Child Support: Time. There are circumstances to take into consideration wherein a noncustodial parent may not have the ability to pay retroactive support in addition to meeting current support obligations.

         19. Divorce: Attorney Fees: Costs. Customarily in dissolution cases, attorney fees and costs are awarded only to prevailing parties or assessed against those who file frivolous suits.

         Appeal from the District Court for Douglas County: Marlon A. Polk, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.

          [25 Neb.App. 194] Donald A. Roberts and Justin A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., for appellant.

          Lindsay Belmont and Angela Dunne, of Koenig Dunne, PC, L.L.O., for appellee.

          Inbody, Pirtle, and Riedmann, Judges.

          Riedmann, Judge.

         I. INTRODUCTION

         Keith M. Roberts appeals from an order entered by the district court for Douglas County that modified his child support obligation to Diana S. Roberts following the dissolution of the parties' marriage. Diana cross-appeals from the same order. For ...


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