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Armknecht v. Armknecht

Supreme Court of Nebraska

August 24, 2018

Jason L. Armknecht, appellant,
v.
Alita M. Armknecht, now known as Alita M. Reynolds, appellee.

         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. Evidence: Appeal and Error. In a review de novo on the record, an appellate court is required to make independent factual determinations based upon the record, and the court reaches its own independent conclusions with respect to the matters at issue.

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

         4. Judges: Words and Phrases. A judicial abuse of discretion exists if 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.

         5. Child Support. As a general matter, the parties' current earnings are to be used in calculating child support.

         6. Rules of the Supreme Court: Child Support. In general, child support payments should be set according to the Nebraska Child Support Guidelines.

         7. Child Support. Use of earning capacity to calculate child support is useful when it appears that the parent is capable of earning more income than is presently being earned.

         8. ___. The court may add "in-kind" benefits derived from an employer or other third party to a party's income for purposes of calculating child support.

         [300 Neb. 871] 9. ___. In determining child support, a court's findings regarding an individual's level of income should not be based on the inclusion of income that is entirely speculative in nature.

         10. Courts: Child Support. The trial court has discretion to choose whether and how to calculate a deduction for subsequent children.

         11. Child Support. No precise mathematical formula exists for calculating child support when subsequent children are involved, but the court must perform the calculation in a manner that does not benefit one family at the expense of the other.

         12. Modification of Decree: Child Support: Proof. The party requesting a deduction for his or her obligation to support subsequent children bears the burden of providing evidence of the obligation, including the income of the other parent of the child.

          Appeal from the District Court for Gage County: Daniel E. Bryan, Jr., Judge, Retired. Affirmed.

          Louie M. Ligouri, of Ligouri Law Office, for appellant.

          Mark J. Krieger and Terri M. Weeks, of Bowman & Krieger, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Derr and Urbom, District Judges.

          Urbom, District Judge.

         INTRODUCTION

         Jason L. Armknecht appeals the modification order entered by the district court for Gage County, which modified his child support obligation to his former wife, Alita M. Armknecht, now known as Alita M. Reynolds. Jason argues the district court erred in the calculation of child support. For the reasons set forth below, we affirm the order of the district court.

         BACKGROUND

         Jason and Alita married in September 1997 and divorced in November 2007. They have three children: Logan Armknecht, born in 1998; Rees Armknecht, born in 1999; and Alexia Armknecht, born in 2004. In the decree, Alita was granted physical custody of all three children, subject to Jason's [300 Neb. 872] parenting time, and Jason was ordered to pay child support in the amount of $950 per month. The decree ordered that such child support would be reduced to $700 for two children and $475 for one child.

         In April 2016, Jason filed a complaint for modification of the decree on the basis that the parties' middle child, Rees, had "expressed a strong and consistent desire" to live with Jason and had been staying with him since January 1, 2016. Jason sought modification of custody with respect to Rees and a reduction in his child support obligation due to such change in custody. Alita counterclaimed for modification of child support, alleging there had been a material change in circumstances that would result in an increase in Jason's support obligation of more than 10 percent.

         At the time of trial, Logan had reached the age of majority, Rees was living with Jason, and Alexia remained living with Alita. The parties stipulated that the split custody computation for child support would be retroactive to May 1, 2016, which was the first month following the filing of the complaint for modification. The evidence also showed that Jason had two subsequent children at the time of trial: a child born in February 2015, and a child born in October 2016.

         Evidence of Income

         The incomes of Jason and Alita were highly disputed at trial. Both parties remarried, and both were currently employed by their respective spouses. The evidence showed that in 2015, Jason began working as a full-time sales associate for an insurance agency owned by his wife, Tasa Paul (Tasa). At the time of trial in February 2017, Jason's two most recent pay stubs showed that he was earning $1, 650 per month, although he earned significantly more the previous year. Jason's 2016 pay stubs showed that he earned $3, 750 per month from January through May and $2, 100 per month from June through December. Tasa testified that his salary was reduced in June 2016 because she eliminated the marketing and overhead allowances that he had been given for the first part of that [300 Neb. 873] year. She explained that the agency had qualified for extra marketing dollars from the company at the end of 2015, so she decided to give Jason some extra marketing money to see if he could bring in more business. Starting in June, ...


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