944 N.W.2d 516
Neb. Ct. App.2020Background
- Joey and Jared Fichtl divorced in 2012; they have three minor children. The 2012 consent decree awarded Jared physical custody and both parents shared legal custody; parenting time for Joey was set (every other weekend and Wednesday evenings) and the decree deviated from child support because Joey planned to move to Grenada.
- Joey moved to Grenada in 2012, returned to Nebraska in 2014, completed a master’s in nursing, and obtained stable nursing employment with substantially higher income by 2016.
- Joey sought modification (trials in May 2017 and April 2018) asking for joint physical custody / equal parenting time or, alternatively, family therapy; Jared counterclaimed for child support beginning August 2015.
- Evidence at trial: children (especially Kali and Liby) expressed distrust/anxiety about increased time with Joey; the children lived with and were thriving in Jared’s home; therapist Strawn recommended against forcing more time now.
- The district court denied Joey’s custody/parenting-time modification, granted Jared’s child support counterclaim and ordered Joey to pay child support retroactive to August 1, 2015; the court allowed certain business depreciation deductions for Jared when computing his income.
- On appeal the Court of Appeals affirmed denial of custody modification and the order to modify child support but held the district court erred in allowing Jared’s depreciation deductions, recalculated his income, and adjusted Joey’s monthly support obligation downward.
Issues
| Issue | Plaintiff's Argument (Joey) | Defendant's Argument (Jared) | Held |
|---|---|---|---|
| Whether custody/parenting-time should be modified to joint physical custody or equal parenting time | Joey: Return to Nebraska and changed circumstances (and prior informal promises) justify joint custody/equal time | Jared: Children are thriving in his care; original decree anticipated Joey’s move/return; no material change | Denied — Joey failed to show a material change and, alternatively, a change in best interests; children prefer current schedule. |
| Whether the court should order a lesser remedy (family therapy) instead of denying modification | Joey: Court has duty to protect children; should order family therapy or other remedial measures | Jared: Relief not requested as modification; burden on Joey to prove modification is warranted | Denied — court did not abuse discretion in leaving original plan intact; Joey bore burden to prove material change and best interests. |
| Whether child support should be modified (material change) | Joey: Return to Nebraska is same underlying fact relied on for custody — inconsistent to modify support but not custody | Jared: Deviation in 2012 was based on uncertainty of Joey’s income; her later stable, higher earnings constitute an unforeseen material change | Granted — court properly found a material change for child support because Joey obtained stable income not contemplated in 2012 decree. |
| Whether court erred in calculating Jared’s income by allowing business depreciation deductions | Joey: Depreciation deductions artificially reduced Jared’s income; not supported | Jared: Depreciation was proper business deduction | Reversed — Jared failed to meet §4-204 requirements (5 years’ returns, straight-line method, ordinary/necessary assets); depreciation disallowed and income recalculated. |
| Proper averaging period for Jared’s fluctuating income (3 v. 4 years) | Joey: 3-year average should be presumed | Jared: 4-year average is reasonable here | Court: No abuse in using 4-year averaging; no mandatory 3-year presumption; upheld 4-year use. |
| Use of “Married Filing Jointly” on child support worksheet | Joey: Filing status inflated support | Jared: Same status used for both; no shown prejudice | Affirmed — court did not abuse discretion in using Married Filing Jointly where both were remarried and no dispute shown about resulting error. |
| Credit for Joey’s subsequently born child (other dependents) | Joey: Should receive credit for support of her new child | Jared: Opposes reduction absent proof | Denied — Joey failed to present evidence of regular support obligation or other parent’s income; burden was hers under §4-220. |
| Retroactivity of child support award to date after counterclaim filing | Joey: Retroactive award creates windfall because scope of reimbursements also changed | Jared: Retroactivity prevents custodial party from being penalized for delay | Affirmed — general rule applies: absent equities to the contrary, modification is retroactive to first day of month after filing; court did not abuse discretion. |
Key Cases Cited
- Schrag v. Spear, 290 Neb. 98 (standard of review for custody and abuse-of-discretion definition)
- Eric H. v. Ashley H., 302 Neb. 786 (definition of material change for custody modification)
- Hotz v. Hotz, 301 Neb. 102 (requirements under child support rule for depreciation and supporting evidence)
- McDonald v. McDonald, 21 Neb. App. 535 (discussion of contemplated changes and modification principles)
- Incontro v. Jacobs, 277 Neb. 275 (factors for material change in child support modifications)
- Mamot v. Mamot, 283 Neb. 659 (approving use of multi-year averaging for fluctuating income)
- Gress v. Gress, 274 Neb. 686 (discussing common averaging practices for fluctuating earnings)
- Schwarz v. Schwarz, 289 Neb. 960 (court discretion in deductions for subsequent children)
- Floerchinger v. Floerchinger, 24 Neb. App. 120 (weight given to a child’s expressed preference when of sufficient age)
- McDougall v. McDougall, 236 Neb. 873 (definition of material change for custody purposes)