Windham v. Kroll
307 Neb. 947
| Neb. | 2020Background
- Alyssa Windham (nonbiological partner) lived with Rebecca Kroll for ~17 years and stood in loco parentis to Kroll’s two children; in 2012 the parties entered a consent judgment: joint legal/physical custody, Windham in loco parentis, 50/50 allocation of school tuition and many child-related expenses, and $166/month contributions to college savings accounts.
- No appeal was taken from the 2012 judgment. In 2017 Kroll sought modification (alleging abuse/alcohol use) and temporary orders gave Kroll sole custody and Windham temporary child support; temporary support was later reduced when Windham’s income fell.
- Windham counterclaimed seeking child support under the Nebraska Child Support Guidelines and reduction/elimination of certain expense obligations given her decreased income.
- The parties mediated custody and agreed Kroll should have sole custody and Windham regular parenting time; they could not agree on modification of support-related provisions, so the trial focused solely on support/expense allocations.
- The district court found a material change in circumstances (change from joint to sole custody and Windham’s reduced income) and: ordered Windham to pay $1,050/month for two children ($763.80 when one remains), eliminated the $166 monthly college-savings contributions, and reallocated school tuition so Windham pays one-third and Kroll two-thirds. Kroll appealed, arguing the court applied the wrong legal standard (she urged a fraud/gross inequity standard for modifying consent provisions).
Issues
| Issue | Kroll's Argument | Windham's Argument | Held |
|---|---|---|---|
| Applicable legal standard to modify in loco parentis custody/visitation/support provisions | Consent-judgment provisions (tuition/college savings) can be changed only for fraud or gross inequity | Provisions relating to support of minor children are modifiable on a showing of a material change in circumstances affecting the child’s best interests | Material-change standard applies to support-related provisions for minors; fraud/gross inequity standard inapplicable (per Reinsch) |
| Are school tuition and college-savings obligations "child support" (i.e., modifiable as child-related expenses)? | These items are outside traditional child support and not subject to the ordinary material-change standard | Tuition/college-savings and similar educational expenses are child-related support and thus a subset of child support | Such expenses are part of child support obligations and are modifiable upon a material change (following Caniglia, Lenz, Coffey) |
| Did the district court abuse its discretion in finding a material change and modifying support/expense provisions? | Argued there was insufficient evidence of a material change to justify modifying those provisions | Argued the shift to sole custody plus Windham’s reduced income constituted a material change affecting the children’s support needs | No abuse of discretion; change from joint to sole custody and evidence of Windham’s decreased income supported modification |
Key Cases Cited
- Reinsch v. Reinsch, 259 Neb. 564, 611 N.W.2d 86 (holds fraud/gross inequity standard does not apply to modification of child support provisions in property settlement)
- Carlson v. Carlson, 299 Neb. 526, 909 N.W.2d 351 (post-majority support governed differently; property-settlement modification rules apply to provisions not pertaining to minor-child support)
- Caniglia v. Caniglia, 285 Neb. 930, 830 N.W.2d 207 (child-related expenses listed in statute are modifiable as a subset of child support)
- Whilde v. Whilde, 298 Neb. 473, 904 N.W.2d 695 (when modifying in loco parentis rights, courts may consider whether the in loco parentis relationship has changed)
- Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (recognizes parental-preference doctrine applies in disputes between natural parent and in loco parentis)
- Lenz v. Lenz, 222 Neb. 85, 382 N.W.2d 323 (special schooling expenses characterized as child-support–type obligations and modifiable prospectively)
- Coffey v. Coffey, 11 Neb. App. 788, 661 N.W.2d 327 (financial accounts earmarked for children's education were tied to custody/support and were modifiable when custody/support changed)