Roberts v. Roberts
25 Neb. Ct. App. 192
| Neb. Ct. App. | 2017Background
- Keith and Diana Roberts divorced in August 2014; they have two minor children. The decree imputed Diana $20,000/year earning capacity and ordered Keith to pay child support and $3,000/month alimony for 84 months.
- After the decree, Keith retired from federal service, began receiving a federal annuity, and accepted a Department of State contractor post in Ankara, Turkey; he receives base salary, post differential, COLA (while in Turkey), and lives in embassy-paid housing.
- Diana filed to modify child support in January 2016 (initial filing Aug 31, 2015), arguing Keith’s income increased and his relocation reduced his parenting time and increased her expenses.
- The district court found a material change, adopted Keith’s baseline guideline calculations, used an additional high-income worksheet, and then upwardly deviated to order $2,500/month for two children; it denied retroactive relief and attorney fees to Diana.
- On appeal, the Nebraska Court of Appeals reviewed (de novo on the record) and addressed (1) calculation of each party’s income, (2) the court’s unexplained upward deviation from the Guidelines, (3) retroactivity of the modification, and (4) attorney fees.
Issues
| Issue | Plaintiff's Argument (Diana) | Defendant's Argument (Keith) | Held |
|---|---|---|---|
| Whether court correctly calculated Keith’s income | Include in-kind housing allowance and potential danger pay; adjust annuity/COLA figures upward | Court correctly excluded housing (embassy-paid, no allowance to him) and danger pay (not actually received); annuity and COLA calculations were proper | Court affirmed district court’s income calculations for Keith (no error including COLA/post differential; exclusion of housing and danger pay justified) |
| Whether court correctly calculated Diana’s income | Exclude alimony and/or replace imputed earning capacity with annuity income | District court included alimony and retained previously stipulated imputed earning capacity | Court held inclusion of alimony was legal error (alimony is excluded); imputed earning capacity may remain if supported — remand to recalculate without alimony |
| Whether upward deviation from Child Support Guidelines was justified | Deviation appropriate given increased expenses and children’s best interests after Keith’s relocation/income change | Deviation not justified without specific findings and worksheet; guideline amounts suffice | Court held deviation was an abuse of discretion: district court failed to state reasons or file Worksheet 5 and improperly relied on a §4‑203(C) high‑income worksheet because corrected combined net income falls below $15,000; remand for recalculation and proper findings if deviation sought |
| Whether modification should be retroactive to month after filing | Retroactivity to Sept 1, 2015 is appropriate; lack of stated reason for denial and no apparent hardship to Keith | Court discretion to deny retroactivity based on equities and ability to pay | Court held denial of retroactivity was abuse of discretion; remand for entry of retroactive modification to Sept 1, 2015 unless district court articulates contrary equities |
| Whether Diana entitled to attorney fees | Keith has ability to pay; fees were substantial and some conduct increased costs | Trial court acted within discretion denying fees | Court affirmed denial of attorney fees as not an abuse of discretion |
Key Cases Cited
- Gangwish v. Gangwish, 267 Neb. 901 678 N.W.2d 503 (Neb. 2004) (best interests of children and equitable, flexible income determination under Guidelines)
- Johnson v. Johnson, 290 Neb. 838 862 N.W.2d 740 (Neb. 2015) (modification review standard; trial court discretion)
- Garza v. Garza, 288 Neb. 213 846 N.W.2d 626 (Neb. 2014) (attorney fees in modification actions reviewed for abuse of discretion)
- Gallner v. Hoffman, 264 Neb. 995 653 N.W.2d 838 (Neb. 2002) (alimony excluded from income when calculating child support)
- Gress v. Gress, 274 Neb. 686 743 N.W.2d 67 (Neb. 2007) (deviations from Guidelines require specific findings or Worksheet 5)
- Riggs v. Riggs, 261 Neb. 344 622 N.W.2d 861 (Neb. 2001) (general rule: modified child support applied retroactively to first day of month after filing unless equities justify otherwise)
- Freeman v. Groskopf, 286 Neb. 713 838 N.W.2d 300 (Neb. 2013) (use of earning capacity when parent can reasonably earn more)
- Noonan v. Noonan, 261 Neb. 552 624 N.W.2d 314 (Neb. 2001) (customary attorney fee awards in dissolution contexts)