Opinion
No. A-19-860.
04-21-2020
LISA A. O'BRIEN, FORMERLY KNOWN AS LISA A. JAMISON, APPELLEE, v. SHANE L. JAMISON, APPELLANT.
Sterling T. Huff, P.C., L.L.O., for appellant. Rhonda R. Flower, of Law Office of Rhonda R. Flower, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion) NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E). Appeal from the District Court for Scotts Bluff County: LEO P. DOBROVOLNY, Judge. Affirmed. Sterling T. Huff, P.C., L.L.O., for appellant. Rhonda R. Flower, of Law Office of Rhonda R. Flower, for appellee. MOORE, Chief Judge, and RIEDMANN and ARTERBURN, Judges. RIEDMANN, Judge.
INTRODUCTION
Shane L. Jamison appeals the order of the district court for Scotts Bluff County which modified his child support obligation for the child he shares with Lisa A. O'Brien, formerly known as Lisa A. Jamison. We find no abuse of discretion in the district court's child support calculation and therefore affirm.
BACKGROUND
A decree dissolving the parties' marriage was entered in 2015. Jamison and O'Brien were awarded joint legal custody of their minor child, born in 2013, and O'Brien was awarded physical custody subject to Jamison's parenting time. Jamison was ordered to pay O'Brien $705 per month in child support.
In June 2016, Jamison filed a complaint to modify the decree, alleging that a material change in circumstances had occurred since entry of the decree. He asked the district court to modify the decree in several respects, including reducing his child support obligation.
Trial was held in June 2017, and the evidence revealed that Jamison continued to reside in Pennsylvania, and O'Brien resided in Nebraska. Jamison lost his employment in December 2015 but secured similar work in his field in March 2017. He estimated that he would earn approximately $4,500 per month in his new position and explained that he was self-employed so he would be required to pay all of his own taxes and provide his own transportation as part of his employment contract. An estimate of his business-related expenses was received into evidence.
Jamison was remarried at the time of trial, and two minor teenage children from a previous relationship were living with him and his new wife. He receives no financial support from the children's mother and is solely responsible for their care. Jamison's wife carries health insurance through her employment which also covers Jamison, his teenage children, and the minor child at issue here. A breakdown of the monthly cost was received into evidence.
After trial, the district court entered an order in which it found that a material change in circumstances had occurred and modified certain portions of the decree, including reducing Jamison's child support obligation to $651 per month. Jamison appealed to this court.
In that appeal, this court observed that although the district court had attached a child support worksheet to its modification order, the income calculation for Jamison was incomplete such that we were unable to discern whether he was afforded deductions to which he claimed he was entitled. See Jamison v. Jamison, No. A-17-1134, 2018 WL 6181704 (Neb. App. Nov. 27, 2018) (selected for posting to court website), modified on denial of rehearing 2019 WL 1590789 (Neb. App. Apr. 3, 2019). We therefore vacated the child support order and remanded the matter to the district court to complete the income calculation on the child support worksheet and recalculate child support accordingly. See id.
After this court's remand, the district court entered an order and attached a new child support worksheet. The court calculated Jamison's income as $3,779 per month, adding back in certain business-related expenses he had deducted in his proposed income calculation. The court declined to give Jamison credit for health insurance costs because his wife provides the insurance at no cost to him. The court also declined to give a credit or deviate from the child support guidelines for Jamison's two older children.
Thereafter, Jamison filed a motion for new trial. The court held a hearing and received evidence but ultimately denied the motion. Jamison appeals.
ASSIGNMENTS OF ERROR
Jamison assigns that the district court erred in calculating child support when it (1) failed to give him credit for his two older children, (2) miscalculated his income, and (3) did not give him credit for health insurance costs.
STANDARD OF REVIEW
Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016).
ANALYSIS
Jamison assigns that the district court erred in calculating child support, because it failed to give him credit for his two other children, certain expenses, and health insurance costs. We address each of these categories separately.
Jamison's primary argument is that the district court's modified child support calculation failed to consider two other children for whom he provides sole support. Jamison has two older children who have lived with him since the time he was married to O'Brien and for whom their mother provides no support. He argues that he is entitled to a reduction in the child support for the child he shares with O'Brien due to the support he provides for his two older children. To support his argument, he relies on Prochaska v. Prochaska, 6 Neb. App. 302, 573 N.W.2d 777 (1998).
In Prochaska v. Prochaska, supra, this court addressed whether the district court erroneously considered the husband's child from his subsequent marriage when determining whether to modify child support in that case. We recognized that the Nebraska Supreme Court had addressed the issue of a parent's obligation to multiple families in three previous cases. We observed that in those cases, the Supreme Court generally did not find an abuse of discretion so long as the trial court considered whether the facts of the particular case warranted a deviation from strict application of the guidelines. See, id., citing State on behalf of S.M. v. Oglesby, 244 Neb. 880, 510 N.W.2d 53 (1994); Lodden v. Lodden, 243 Neb. 14, 497 N.W.2d 59 (1993); Czaplewski v. Czaplewski, 240 Neb. 629, 483 N.W.2d 751 (1992).
In those cases and in Prochaska, however, the question was how to deal with children born subsequent to the children for which support was being calculated. The Supreme Court has interpreted the expression "subsequent children" to mean children born after an existing support order. State on behalf of Fernando L. v. Rogelio L., 299 Neb. 329, 907 N.W.2d 920 (2018). The court found that this interpretation of "subsequent children" is consistent with the jurisprudence of modification, which contemplates a circumstance that was not present at the time of the original decree. Id. It is well settled that a party seeking to modify a child support order must show a material change in circumstances which (1) occurred subsequent to the entry of the original decree or previous modification and (2) was not contemplated when the decree was entered. Id.
In the present case, Jamison's older children were not born subsequent to entry of the decree dissolving the marriage of Jamison and O'Brien. Jamison admits that his older children were living with him and O'Brien during the parties' marriage and that he was providing their sole support at that time. He specifically acknowledges that the fact that he is solely supporting his older children is not a change from the time of the original divorce action. Jamison was not awarded a credit or deviation in the child support calculated in the original decree due to his older children, and no appeal was taken from the decree.
Because the two older children were residing with Jamison and under his sole care at the time of his divorce from O'Brien, they are not "subsequent children" and do not constitute a material change in circumstances which occurred subsequent to the entry of the original decree and which was not contemplated when the decree was entered. We therefore find that the district court did not abuse its discretion in declining to reduce the child support for the child at issue here due to Jamison's two older children.
Jamison also asserts that he was entitled to a credit on his child support for health insurance costs. We disagree.
A deduction shall be allowed for the monthly out-of-pocket cost to the parent for that particular parent's health insurance. Neb. Ct. R. § 4-205(F) (rev. 2016). This includes the cost of coverage for the parent only. Id. It does not include the cost of health insurance for the child(ren), which is addressed in Neb. Ct. R. § 4-215(A). § 4-205(F). The parent requesting the deduction must submit proof of the cost actually incurred for health insurance coverage of the parent. Id. The amount of the deduction for the cost to the parent for health insurance for himself or herself shall not exceed 5 percent of that parent's gross income. Id.
Under § 4-215(A), the increased cost to the parent for health insurance for the child(ren) of the parent shall be prorated between the parents. The parent requesting an adjustment for health insurance premiums must submit proof of the cost for health insurance for coverage of the child(ren). Id. The parent paying the premium receives a credit against his or her share of the monthly support. Id.
The child support guidelines make clear that a parent is entitled to a credit for the cost of health insurance for the parent or children which is paid by the parent. Here, Jamison's current wife has health insurance through her employment that covers him and the minor child at issue. Jamison's wife pays the premium for health insurance that covers both Jamison and his child. Thus, because the cost is not paid by the parent, Jamison, he is not entitled to a credit against his child support.
Finally, Jamison argues that the district court miscalculated his income because it failed to give him credit for business-related expenses. In his proposed child support calculation, Jamison calculated his income to be $3,050 per month, which included deductions for expenses related to his self-employment and vehicle that he uses for business purposes. He testified at the modification hearing that he is required to provide his own mode of transportation as part of his new employment. He offered into evidence an exhibit listing business-related expenses and including such things as vehicle depreciation, business meals, business expenses, and registration and inspection fees. The district court added these deductions back into the equation when calculating Jamison's income.
Jamison's sole argument on this issue is that the district court stated that the evidence revealed that Jamison used his vehicle for personal use as well as business purposes and that "'no allocation was testified to.'" Brief for appellant at 13. Contrary to the court's statement, Jamison notes that he testified that he used his vehicle approximately 75 percent of the time for business use and 25 percent of the time for personal use. He argues that he was "not sure if any personal expenses were included in [his estimate]" and that his estimated expenses were "either all business vehicle expenses, or 75% business and 25% personal." Brief for appellant at 13.
Jamison originally identified 100 percent of the expenses as related to his business when he calculated his income to be $3,050 per month. On cross-examination, he was asked whether the vehicle he uses for his employment was strictly used for business, and he said it was not and that he used it for personal use as well. He was asked for an estimate of how much of the time the vehicle was for business use versus personal use, and he responded, "As of currently, maybe 75, 25; 75 business, 25 personal." He admitted that the original expense calculation he offered was for 100 percent business use of the vehicle and that the actual expenses "[p]robably could be a percentage of that." To clarify, he was asked, "So you did include some personal expenses in there?" He responded, "I don't know if we did or not to be honest with you." He was then asked whether it was possible that 25 percent of the expenses he set forth were personal, and he said, "Could be, yes." He also admitted that of the expenses he had listed for his vehicle, at least a portion of them would be reimbursed in terms of a mileage reimbursement. Given Jamison's own uncertainty as to the percent of time he uses his vehicle for business use versus personal use and his testimony that he would be reimbursed for some of the expenses included in his calculation, we conclude that the district court did not abuse its discretion in not giving him credit for all of the expenses Jamison requested.
CONCLUSION
The district court did not abuse its discretion in its child support calculation. We therefore affirm the court's order.
AFFIRMED.