Hotz v. Hotz
301 Neb. 102
Neb.2018Background
- Barbara and James Hotz divorced in 2015; custody of three children was split, James was ordered to pay child support to Barbara until the oldest (Josee) reached majority, and James was ordered to pay Barbara alimony ($750/month for 70 months).
- In 2016 Barbara sought modification of custody, child support, and alimony, alleging James’ income had materially increased; evidence of current earnings, earning capacity, and tax returns were introduced at trial.
- The district court recalculated incomes using Barbara’s earning capacity (part-time wage plus assumed full‑time at lower wage), accepted Barbara’s calculation of James’ income, declined to include James’ alimony payments to Barbara as income, and refused James’ claimed depreciation deductions for lack of proof.
- The court modified support: James to pay $156/month to Barbara until Josee’s majority, then Barbara to pay James specified amounts for remaining children; it also abated 80% of Barbara’s obligation for June–August (alternate summer custody) after finding a material change.
- James appealed, challenging: (1) income calculations, (2) exclusion of alimony from income, (3) Barbara’s earning capacity calculation, (4) denial of depreciation deductions, and (5) the 80% summer abatement. The Nebraska Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (James) | Defendant's Argument (Barbara) | Held |
|---|---|---|---|
| Whether alimony paid between parents may be included in total monthly income when modifying child support | Alimony already ordered in decree should be included in total monthly income for modification computations because the NCSG does not explicitly exclude post‑decree alimony | NCSG §4‑213 and rule structure require child support to be calculated before spousal support; alimony between parents must be excluded | Alimony between parents is excluded from total monthly income for child support calculations in modification proceedings; exclusion affirmed (NCSG §4‑213 applies) |
| Whether James’ claimed depreciation may be deducted from income | Depreciation shown on personal and S‑corp returns should reduce income | James failed to meet NCSG proof requirements for depreciation deductions | Court correctly denied depreciation deductions; James failed to present 5 years of returns and required evidentiary showings |
| Whether the court erred in calculating Barbara’s earning capacity | Barbara’s full‑time earning capacity should be at $15.47/hr (her part‑time rate) for a 40‑hour week | Court may impute earning capacity using available evidence; evidence did not show she could obtain additional hours at $15.47/hr so imputing lower wage for remaining hours was reasonable | Trial court did not abuse discretion in imputing earning capacity (use of $15.47 for current hours and $9/hr for remainder supported by record) |
| Whether abating Barbara’s child support 80% in summer was improper | Original decree contemplated equal summer custody; changing summer arrangement not a material change | Modification of support amounts and resulting custody/economic changes justified deviation under NCSG §4‑210 and best interests of children | Abatement upheld: modification constituted material change and deviation (up to 80%) was permissible and justified |
Key Cases Cited
- Gallner v. Hoffman, 264 Neb. 995 (clarifies alimony is not considered income when child support is established and cessation of alimony is not a material change for modifying child support)
- Roberts v. Roberts, 25 Neb. App. 192 (Court of Appeals: alimony excluded from income in modification proceedings consistent with Gallner)
- Simpson v. Simpson, 275 Neb. 152 (explains NCSG principle that all income is included except specific exclusions)
- Anderson v. Anderson, 290 Neb. 530 (addresses when deviation from the NCSG is appropriate and requirements for articulating justification)