924 N.W.2d 733
Neb. Ct. App.2019Background
- Jennifer (now Johnson) and Kevin Hall divorced in January 2016; one minor child, Cameron (b. Oct 2012). Kevin awarded sole physical custody; Jennifer reserved at least 150 days of parenting time per year.
- At dissolution Jennifer worked 12-hour rotating shifts at a hospital earning $21/hr; by trial she had seniority, increased wages (~$5,452.35/month), and more childcare support from spouse/friends.
- Kevin earned about $18.46/hr at decree and testified at trial he earned $17/hr, declining higher-paying work that would require commuting to remain near the child’s school and home.
- The original decree deviated from Nebraska Child Support Guidelines and used worksheet 3 based on 150 parenting days for Jennifer; the district court later recalculated support using updated incomes, preserved the deviation and worksheet 3, but reduced Jennifer’s credited days from 150 to 115, increasing her monthly support obligation.
- District court granted Kevin’s oral motion for a directed verdict dismissing Jennifer’s countercomplaint to modify custody, finding no material change in circumstances; court also resolved child support issues largely by using current incomes and deductions but altered the parenting-day division in the support worksheet.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a material change in circumstances to modify custody | Jennifer: increased work flexibility, new support network, and child’s transition difficulties/parental conflict justify modification | Kevin: parties contemplated scheduling issues and transitions at decree; changes are not material | No material change; directed verdict proper—custody not modified |
| Whether the district court erred by excluding certain evidence at custody trial | Jennifer: court improperly excluded testimony about decree understanding and parental fitness | Kevin: exclusions were harmless; fitness not alleged and testimony was irrelevant to material-change inquiry | Exclusions were harmless or irrelevant; no reversible error |
| Whether child support should be calculated using Kevin’s higher earning capacity | Jennifer: Kevin could/should be imputed higher income from commuting to urban jobs | Kevin: actual $17/hr is proper given residence and school choice; parties relied on $17/hr in filings | Use of actual $17/hr income affirmed; court may use actual income here |
| Whether court erred in deductions and parenting-day allocation for support | Jennifer: retirement deduction unsupported; court incorrectly reduced Jennifer’s credited parenting days from 150 to 115 | Kevin: deduction and changed days reflected evidence and current practice | Retirement deduction (4% of gross) was within guideline bounds and acceptable; but altering the agreed 150/215 day division was error—child support recalculation on remand required |
Key Cases Cited
- Hopkins v. Hopkins, 294 Neb. 417 (discretionary review of decree modification) (standard for reviewing modification orders)
- Schrag v. Spear, 290 Neb. 98 (abuse-of-discretion defined)
- Whilde v. Whilde, 298 Neb. 473 (two-step test for custody modification: material change then best interests)
- Heistand v. Heistand, 267 Neb. 300 (definition of material change in circumstances)
- McDonald v. McDonald, 21 Neb. App. 535 (changes contemplated at decree are not material)
- Kreus v. Stiles Service Ctr., 250 Neb. 526 (directed verdict equivalent to motion to dismiss in bench trials)
- Gress v. Gress, 274 Neb. 686 (courts should follow Nebraska Child Support Guidelines; deviations require specific findings)
- Claborn v. Claborn, 267 Neb. 201 (earning capacity may be used when income is voluntarily reduced)
- Schriner v. Schriner, 25 Neb. App. 165 (parental conflict can, in some cases, be a material change)
- State on behalf of Maddox S. v. Matthew E., 23 Neb. App. 500 (conflict between parents as possible material change)