Armknecht v. Armknecht
916 N.W.2d 581
Neb.2018Background
- Jason and Alita Armknecht divorced in 2007 and share three children; by trial one child was adult, one (Rees) moved to live with Jason, and one (Alexia) remained with Alita.
- Jason filed to modify custody and child support in April 2016; parties stipulated split-custody calculations to be retroactive to May 1, 2016.
- Income was disputed: Jason worked for his wife’s insurance agency with variable pay (pay stubs showed $3,750/mo early 2016, later $2,100 then $1,650); prior self-employment tax returns averaged low taxable income.
- Alita worked as an administrative assistant for her husband’s company (W-2 income uneven across years) and Jason introduced promotional ViSalus materials and evidence of nonwage benefits (gifted real estate, vehicle) that he argued reflected greater income.
- District court found both parties’ current income evidence not credible, set earning capacities (Jason $3,100/mo; Alita $3,333/mo), awarded custody of Rees to Jason, adopted child-support worksheets prepared by Alita’s counsel, and calculated subsequent-child credits for Jason’s two later-born children.
- Jason appealed, arguing the court erred in (1) using former/earning-capacity figures rather than current income, (2) failing to make independent findings and instead adopting opposing counsel’s worksheets, and (3) miscalculating the deduction for his subsequent children.
Issues
| Issue | Jason's Argument | Alita's Argument | Held |
|---|---|---|---|
| Whether court erred by using former earning capacity instead of current income | Court should use Jason’s lower actual current income (~$2,100/mo or $1,650) | Court and record support using earning capacity given inconsistent/controlled incomes | Affirmed: court did not abuse discretion in using earning capacity ($3,100/mo) |
| Whether court improperly excluded Alita’s ViSalus and nonwage benefits from income | ViSalus/promotional materials and employer gifts show higher income; should be included | ViSalus materials are speculative and nonwage benefits were not shown to be recurring income | Affirmed: ViSalus evidence speculative; exclusion appropriate; earning capacity set at $3,333/mo |
| Whether court erred by adopting counsel’s worksheets rather than making independent findings | Trial court failed to make independent calculations and improperly adopted opposing counsel’s worksheet | Court made on-record income findings and instructed counsel to prepare calculations consistent with those findings | Affirmed: on-record factual findings became the court’s findings when adopted in the order |
| Whether subsequent-child credit for Jason was miscalculated | Court attributed excessive income to Jason’s wife when computing credit, inflating his obligation to Alexia | Court used a permissible methodology comparing obligations to both families and Jason provided no alternative calculations | Affirmed: methodology within trial court discretion; Jason bore burden to provide evidence/calculations |
Key Cases Cited
- Johnson v. Johnson, 290 Neb. 838 (trial-court discretion in modification reviewed de novo)
- Becher v. Becher, 299 Neb. 206 (appellate review de novo and weight to trial court’s witness assessments)
- Peter v. Peter, 262 Neb. 1017 (use of earning capacity where current income controlled/unstable)
- Freeman v. Groskopf, 286 Neb. 713 (earning capacity may be considered under guidelines)
- Brunges v. Brunges, 260 Neb. 660 (trial court must make independent findings; counsel-prepared decrees discouraged)
- Schwarz v. Schwarz, 289 Neb. 960 (trial court discretion on calculating subsequent-child credits)