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Hotz v. Hotz

Supreme Court of Nebraska

September 21, 2018

Barbara F. Hotz, appellee,
v.
James P. Hotz, appellant.

         1. Modification of Decree: Child Support: Appeal and Error. Modification of child support is entrusted to the discretion of the trial court. An appellate court reviews proceedings for modification of child support de novo on the record and will affirm the judgment of the trial court absent an abuse of discretion.

         2. Evidence: Appeal and Error. In a review de novo on the record, an appellate court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue.

         3. Judgments: Words and Phrases. A judicial abuse of discretion requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and a just result.

         4. Child Support: Rules of the Supreme Court. Interpretation of the Nebraska Child Support Guidelines presents a question of law.

         5. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusions.

         6. Statutes: Rules of the Supreme Court. For purposes of construction, Nebraska Supreme Court rules are treated like statutes.

         7.__:__ . Absent a statutory indication to the contrary, language contained in a Nebraska Supreme Court rule is to be given its plain and ordinary meaning.

         8. __:__. Just as statutes relating to the same subject are in pari mate- ria and should be construed together, Nebraska Supreme Court rules should be read and construed together.

         9. Rules of the Supreme Court. A court must attempt to give effect to all parts of a Nebraska Supreme Court rule, and if it can be [301 Neb. 103] avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.

         10. Rules of the Supreme Court: Appeal and Error. An appellate court should try to avoid, if possible, the construction of a Nebraska Supreme Court rule that would lead to an absurd result.

         11. Child Support: Alimony: Rules of the Supreme Court. The Nebraska Child Support Guidelines exclude alimony between parents from their total monthly incomes for the purpose of calculating child support obligations for their children in modification proceedings.

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

         13. __:__ .A court may deviate from the Nebraska Child Support Guidelines if their application in an individual case would be unjust or inappropriate; the court must specifically find that a deviation is warranted based on the evidence and state the reason for the deviation in the decree.

         14. __:__.A deviation from the Nebraska Child Support Guidelines without a clearly articulated justification is an abuse of discretion.

         15. __:__ . Deviations from the Nebraska Child Support Guidelines must take into consideration the best interests of the child or children.

         16. Modification of Decree: Child Support: Proof. A party seeking to modify a child support order must show a material change in circumstances that (1) occurred subsequent to the entry of the original decree or previous modification and (2) was not contemplated when the decree was entered.

          Appeal from the District Court for Lincoln County: Richard A. Birch, Judge.

          Kent A. Schroeder, of Ross, Schroeder & George, L.L.C., for appellant.

          R. Bradley Dawson, of Lindemeier & Dawson, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          FUNKE, J.

         The district court dissolved the marriage of Barbara F. Hotz and James P. Hotz, split custody of their three minor children; ordered James to pay child support until the parties' oldest [301 Neb. 104] child, Josee Hotz, reached the age of majority; and awarded alimony to Barbara. Barbara later moved to modify the amount of child support James paid, alleging James' income had materially increased. The court declined to include James' alimony payments to Barbara in its calculation of the parties' total monthly income for the purpose of recalculating child support obligations. The court also rejected other arguments from James regarding the calculation of the parties' total monthly income and abated part of Barbara's child support obligations after Josee reaches the age of majority.

         We hold that the Nebraska Child Support Guidelines (NCSG) exclude alimony between parents from their total monthly income for the purpose of calculating child support obligations for their children. Further, we find that the court did not abuse its discretion in calculating the parties' child support obligations or abating Barbara's child support payments. Therefore, we affirm.

         I. BACKGROUND

         In 2015, the court entered a decree dissolving the marriage of Barbara and James and awarding custody of their three minor children. The court awarded Barbara custody of Josee and James custody of their other two children. The court ordered James to pay Barbara $253 per month in child support until Josee reached the age of majority, and then Barbara to pay James $302 per month for two children and $244 per month for one child. Further, the court ordered James to pay Barbara $750 per month in alimony for 70 months.

         In 2016, Barbara filed a complaint to modify the decree, seeking a change in custody, child support, and alimony. Concerning alimony and child support, the complaint alleged that James' income had increased and that the change would increase the support paid by him by more than 10 percent. At trial, the parties testified about and produced evidence of their current employment and income.

         Barbara testified that she has a part-time job with a hospital service company and a part-time job at a livestock company, [301 Neb. 105] working 1 day per work at each job. The evidence showed that she works about 8 hours per week, at a rate of $15.47 an hour, for the hospital service and that her monthly income from the livestock company is about $400. She also testified that she owns rental homes that are not currently income producing and runs a corporation that operates at a loss. James submitted Barbara's Social Security statement into evidence, which shows her annual earnings for the purposes of Social Security taxes. James testified that his earning capacity had decreased since the divorce decree. He submitted into evidence his personal and S corporation income tax returns from 2016.

         Each party presented a demonstrative exhibit of proposed child support calculations. James calculated his gross monthly income at $3, 116 and Barbara's at $3, 431. Barbara calculated her gross monthly income at $1, 560 and James' at $5, 794. She calculated her income as $9 per hour for a 40-hour workweek.

         The court accepted Barbara's calculation of James' total monthly income and determined Barbara's total monthly income based upon an earning capacity of $1, 784, finding she could work 8 hours per week at $15.47 per hour and 32 hours per week at $9 per hour. The court modified its support order to require James to pay Barbara $156 per month in child support until Josee reaches the age of majority, and then Barbara to pay James $424 per month for two children and $292 per month for one child.

         Both parties filed a motion to alter or amend the decision. The court denied James' motion. It ruled that it had correctly disregarded James' claimed depreciations, under Neb. Ct. R. § 4-204 (rev. 2016), and that the NCSG does not allow for the inclusion of alimony as income in child support calculations on a complaint to modify. It reasoned that Neb. Ct. R. § 4-213, read in conjunction with § 4-204, excludes alimony from total monthly income.

         The court, in part, granted Barbara's motion, requesting an adjustment of her child support obligation when the parties had alternating weeks of custody, by granting an 80-percent [301 Neb. 106] abatement of her obligation during the months of June, July, and August. It reasoned that the abatement was warranted because James' total monthly income is substantially higher than Barbara's and, during those months, Barbara will have equal days of custody, whereas James otherwise has full custody of the children after Josee reaches the age of majority.

         James filed an appeal, and we granted his motion to bypass the Nebraska Court of Appeals.

         II. ASSIGNMENTS OF ERROR

         James assigns, restated and consolidated, that the district court abused its discretion in (1) failing to accurately calculate the parties' child support obligations; (2) failing to include alimony payments in the calculation of the parties' total monthly incomes; (3) calculating Barbara's earning capacity; (4) finding James failed to prove he was entitled to depreciation deductions; ...


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