840 N.W.2d 573
Neb. Ct. App.2013Background
- Del McDonald and Coleen Spencer (formerly McDonald) divorced in 2009; they have two children.
- The original divorce awarded Coleen sole legal and physical custody with Del having parenting time and a right of first refusal for overnight work periods.
- Del later sought custody modification and an increase in child support after obtaining full-time employment as a respiratory therapist; the State intervened to modify support.
- The district court increased Del’s child support from $69 to $982 per month, retroactive to March 2011, and allotted Coleen health insurance and tax exemptions accordingly.
- The district court also ordered Del to pay a portion of Coleen’s attorney fees and refused to modify custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Custody modification standard | Del argues material change in circumstances | Coleen argues no material change | No abuse; no material change found |
| Modification of child support | Del claims improper calculation and worksheet use | Coleen argues proper calculation under guidelines | Court did not abuse discretion; support modified |
| Retroactive child support | Del contends retroactivity is inequitable | Retroactivity appropriate to prevent delay benefits to nonpayor | Retroactive award proper |
| Tax dependency exemption | Del argues exemption tied to current support status | Exemption allocation within court’s equitable powers | Court permissible to require current support for exemption |
| Attorney fees | Del challenges fee award as excessive | Coleen contends fees reasonable given services and equities | No abuse; $2,000 attorney fees affirmed |
Key Cases Cited
- Adams v. Adams, 13 Neb. App. 276 (Neb. App. 2005) (material change standard for custody modification)
- Pool v. Pool, 9 Neb. App. 453 (Neb. App. 2000) (joint custody work sheet when joint physical custody exists)
- Hajenga v. Hajenga, 257 Neb. 841 (Neb. 1999) (guidelines-based child support with flexibility)
- Emery v. Moffett, 269 Neb. 867 (Neb. 2005) (retroactive modification of child support timing)
- State ex rel. Pathammavong v. Pathammavong, 268 Neb. 1 (Neb. 2004) (allocation of tax exemptions as an equitable matter)
- Pursley v. Pursley, 261 Neb. 478 (Neb. 2001) (timing and fairness considerations in support orders)