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 ordered Keith to pay child support and $3,000/month alimony for 84 months.
- At divorce Keith was a federal employee with monthly income ~$12,281; Diana was unemployed but imputed an earning capacity of $20,000/year.
- Keith retired, began receiving a federal annuity, and took a Department of State contractor position in Ankara, Turkey (base salary $136,833 plus COLA and post differential; housing paid by embassy). Diana received a portion of Keith’s annuity.
- Diana filed to modify child support (filed Aug 31, 2015), alleging Keith’s income changed and his relocation increased her childcare expenses. Trial occurred May 2016; court issued modification Nov 2016.
- Trial court adopted parties’ baseline guideline calculations, used an extra worksheet for incomes > $15,000, then ordered an unexplained upward deviation to $2,500/month for two children; it denied retroactivity and denied attorney fees to Diana.
Issues
| Issue | Plaintiff's Argument (Diana) | Defendant's Argument (Keith) | Held |
|---|---|---|---|
| Calculation of parties’ incomes | Court should include Keith’s full annuity components (housing allowance, danger pay) and correctly compute COLA; exclude Diana’s alimony and decide whether to impute earning capacity | Keith argued court correctly excluded in-kind housing (no evidence he received an allowance), excluded danger pay (not actually received), and properly computed annuity and COLA; imputed Diana’s earning capacity per stipulation | Court: no error excluding housing allowance or danger pay; annuity and COLA calculations upheld; court erred by including Diana’s alimony in her income (must be excluded) — remand to recalculate child support excluding alimony. |
| Upward deviation from guidelines | Deviation justified by increased combined income and children’s best interests due to Keith’s relocation and failure to exercise parenting time | Deviation improper because court failed to articulate reasons or complete worksheet 5; combined income (corrected) below $15,000 so §4-203(C) worksheet inapplicable | Court abused discretion: failed to state reasons or file worksheet 5; because alimony inclusion was error, combined net income falls below $15,000 so §4-203(C) deviation was improper — remand for recalculation and explicit findings if deviation again sought. |
| Retroactivity of modification | Modification should be retroactive to Sept 1, 2015 (first day of month after filing) because no equities to the contrary and delay should not penalize custodial parent | Court declined retroactivity without stating reasons; Keith offered no evidence retroactivity would cause hardship | Court abused discretion denying retroactivity where record showed no equities against it (e.g., Keith received a lump sum); remand for entry of retroactive support to Sept 1, 2015 unless trial court articulates contrary equities. |
| Attorney fees | Diana sought fees (claimed inability to pay, Keith’s higher means, and contributing discovery/custody tactics) | Keith argued fees need not be shifted; trial court denied fees and ordered parties to bear own costs | Court did not abuse discretion in denying attorney fees; customary rule awards fees to prevailing party or against frivolous litigant; denial affirmed. |
Key Cases Cited
- Johnson v. Johnson, 290 Neb. 838 (standard of review for modification is de novo on the record; trial court discretion)
- Garza v. Garza, 288 Neb. 213 (attorney fees in modification actions are discretionary)
- Gangwish v. Gangwish, 267 Neb. 901 (Nebraska Child Support Guidelines primary principles; flexible approach to income)
- Gallner v. Hoffman, 264 Neb. 995 (alimony is not income for child support; child support determined before spousal support)
- Freeman v. Groskopf, 286 Neb. 713 (earning capacity may be used when parent can earn more than current income)
- Gress v. Gress, 274 Neb. 686 (deviation from guidelines permitted only with specific findings or worksheet 5; unexplained deviation is abuse of discretion)
- Riggs v. Riggs, 261 Neb. 344 (modification generally retroactive to first day of month after filing absent equities)
- Noonan v. Noonan, 261 Neb. 552 (customary rule on awarding attorney fees in dissolution matters)