Keith M. Roberts, appellant and CROSS-APPELLEE,
DlANA S. ROBERTS, APPELLEE AND CROSS-APPELLANT.
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
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
Child Support. The primary concern in
determining child support is the best interests of the
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.
___. 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
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.
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.
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.
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.
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.
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.
___: ___. 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.
___: ___. Without a clearly articulated justification, any
deviation from the Nebraska Child Support Guidelines is an
abuse of discretion.
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.
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.
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.
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.
Divorce: Attorney Fees: Costs. Customarily
in dissolution cases, attorney fees and costs are awarded
only to prevailing parties or assessed against those who file
from the District Court for Douglas County: Marlon A. Polk,
Judge. Affirmed in part, and in part reversed and remanded
for further proceedings.
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.
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 ...