Roberts v. Roberts, 25 Neb. Ct. App. 192

Background

Keith and Diana Roberts divorced in August 2014; two minor children (2002, 2005). Keith was a high federal earner at divorce; Diana was unemployed and had an imputed earning capacity of $20,000/year.
Divorce decree: Keith paid child support ($1,866/mo for two children), and $3,000/mo alimony for 84 months; Diana awarded primary physical custody.
After the decree Keith retired from federal employment, began working as a Department of State personal service contractor in Ankara, Turkey, receives base salary, COLA, post differential, and a federal annuity (part of which is paid to Diana). Keith relocated to Turkey in Nov. 2015.
Diana filed for modification (filed Aug 31, 2015; second amended Jan 2016), alleging a material change in circumstances: increased gross income for Keith and increased custodial expenses due to reduced parenting time by Keith; she sought increased child support, retroactivity, and attorney fees.
District court (Nov. 2016) found a material change, adopted Keith’s calculations, used an additional worksheet for high incomes, deviated upward from guidelines and ordered $2,500/mo for two children; denied retroactive application and denied Diana’s attorney-fee request.
On appeal, Nebraska Court of Appeals affirmed in part, reversed in part, and remanded: it found the trial court erred by including alimony in Diana’s income, abused discretion in deviating without adequate findings and in denying retroactivity, but did not abuse discretion in denying attorney fees.

Issues

Issue	Diana's Argument	Keith's Argument	Held
Whether trial court correctly calculated parties’ incomes for guideline support	Court should include Keith’s housing allowance, danger pay; Diana’s income should exclude alimony but include imputed earning capacity	Court’s income calculations (as adopted) were proper	Court erred: exclusion of Keith’s housing/danger pay was supported; but inclusion of Diana’s alimony was legal error; imputed earning capacity may be used and was properly included
Whether trial court permissibly deviated upward from Child Support Guidelines	Deviation justified by changed incomes, relocation, and children’s best interests	Deviation unsupported and unexplained; calculations adopted from Keith did not justify the amount	Abuse of discretion: court failed to articulate reasons or file worksheet 5; combined net income (corrected) < $15,000 so §4-203(C) worksheet was not applicable; remand for recalculation and explicit findings if deviation again sought
Whether modification should be retroactive to month after filing	Retroactivity to Sept 1, 2015 required absent equities to the contrary	Trial court denied retroactivity; argued discretion to deny	Abuse of discretion: court gave no reason for denying retroactivity; record lacked equities to deny (e.g., no demonstrated hardship on Keith) — remand to apply retroactivity
Whether trial court should award Diana attorney fees	Diana sought fees due to Keith’s higher income and litigation conduct	Trial court denied; both parties to bear own fees	Affirmed: no abuse of discretion; custom is to award fees only to prevailing party or against frivolous filers; denial reasonable despite Diana’s partial success

Key Cases Cited

Johnson v. Johnson, 290 Neb. 838 (standard of review for modification and child support)
Garza v. Garza, 288 Neb. 213 (discretionary award of attorney fees in modification actions)
Gangwish v. Gangwish, 267 Neb. 901 (purpose of child support guidelines and flexible income determination)
Gallner v. Hoffman, 264 Neb. 995 (alimony excluded from child support income calculation)
Freeman v. Groskopf, 286 Neb. 713 (use of earning capacity when present income understates ability)
Gress v. Gress, 274 Neb. 686 (deviation from guidelines requires explicit findings or worksheet)
Riggs v. Riggs, 261 Neb. 344 (general rule: modification retroactive to first day of month after filing absent equities)
Noonan v. Noonan, 261 Neb. 552 (customary practice on attorney-fee awards in dissolution cases)