834 N.W.2d 812
Neb. Ct. App.2013Background
- Dissolution decree in Oct. 2006 awarded Benjamin and Vanessa joint legal custody, Vanessa primary physical custody, and ordered Benjamin to pay child support and alimony.
- Benjamin filed a 2009 modification complaint seeking to reduce support/alimony and non-reimbursed medical expenses.
- A referee hearing in May 2010 limited issues to Benjamin’s requests; Vanessa’s issues to be heard later.
- Benjamin testified he left his $140,000/year job before dissolution and started a business; his income dropped to near zero from Oct. 2006 to June 2009.
- Benjamin later secured employment at about $75,000/year; Vanessa moved from unemployment to operating a daycare business earning around $60,000/year.
- The referee recommended granting Vanessa’s directed-verdict motion; district court adopted this, but on appeal the court reverses and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a material change of circumstances supported modification | Johnson showed failure to realize earning capacity. | Johnson left prior employment pre-decree; no material change. | Yes, there was a material change; abuse of discretion to grant directed verdict. |
| Whether evidence of living expenses was properly excluded | Living expenses relevant to ability to pay; should be considered. | Only earning capacity considered; expenses irrelevant. | Error to exclude living-expense evidence. |
| Whether the directed verdict was improper | Benjamin presented prima facie case of material change. | Record supported no change; verdict proper. | Directed verdict improper; abuse of discretion; reversal and remand. |
Key Cases Cited
- Collins v. Collins, 19 Neb. App. 529 (2012) (de novo review; earning capacity vs. actual income; factors in modification decisions)
- Sabatka v. Sabatka, 245 Neb. 109 (1994) (changes in career may be allowed if in good faith and guidelines applied)
- Knaub v. Knaub, 245 Neb. 172 (1994) (motion-to-dismiss standards; evidence must support prima facie case)
- American Central City v. Joint Antelope Valley Auth., 281 Neb. 742 (2011) (motion-to-dismiss standards; evidence favorable to nonmovant must be considered)