Opinion
No. A-10-1047.
09-27-2011
PETER M. STEKR, APPELLANT, v. KELLY BEECHAM, FORMERLY KNOWN AS KELLY SHANNON STEKR, APPELLEE.
John A. Kinney and Jill M. Mason, of Kinney Law, P.C., L.L.O., for appellant. Brent M. Kuhn, of Harris Kuhn Law Firm, L.L.P., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
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 Douglas County: MARLON A. POLK, Judge. Remanded with directions.
John A. Kinney and Jill M. Mason, of Kinney Law, P.C., L.L.O., for appellant.
Brent M. Kuhn, of Harris Kuhn Law Firm, L.L.P., for appellee.
IRWIN, CASSEL, and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Peter M. Stekr appeals from an order of the district court for Douglas County, denying Peter's motion to modify his child support obligation from $1,801.51 per month to $647.51 per month. On appeal, Peter argues that the trial court erred in failing to use the Nebraska Child Support Guidelines in calculating his child support obligation and in failing to include a child support calculation in its decision. For the reasons set forth below, we remand the cause with directions.
BACKGROUND
Peter and Kelly Beecham, formerly known as Kelly Shannon Stekr (Kelly), were divorced in 2001, and at that time, the trial court granted Kelly custody of their daughter, who was born in February 2000, and ordered Peter to pay child support of $985.84 per month. In 2007, a modification hearing was held and the trial court raised Peter's child support obligation to $1,801.51 per month.
On January 29, 2010, Peter filed a complaint to modify his child support obligation, stating that a material and substantial change in circumstances had occurred since the decree, warranting a modification in his child support obligation. Peter stated that his income had decreased and that application of the child support guidelines would result in a decrease in his child support amount of 10 percent or more.
A hearing on Peter's complaint to modify was held on August 13, 2010, before a district court referee. At the hearing, Peter testified that in April 2010, he began working for a bank where he earns $60,000 per year. Prior to his job at the bank, Peter was employed as a bond trader from 2005 to February 2010 and was paid substantial commissions. The evidence showed that Peter made $129,057 in 2007, $331,354 in 2008, and $345,689 in 2009. Peter stated that he lost his job as a bond trader through no fault of his own, but because of certain decisions his company made and because of the faltering economy. Peter suggested that based on his current salary of $60,000, his child support obligation should be $647.51.
The evidence also showed that Peter formed a corporation which owns a single asset, a home in Colorado worth approximately $950,000. Peter testified that he has a mortgage on the Colorado property in the amount of $690,000 and that the monthly mortgage payments are between $2,400 and $2,600. Peter testified that he has been using his savings and funds from other investments to pay the mortgage since his income has decreased. Peter testified that the Colorado property is listed for sale and that the asking price is $799,000. Peter also owns two other homes, one valued between $450,000 and $500,000, and the other valued at $525,000. Peter stated that neither of these two properties has an outstanding mortgage.
Kelly testified that she is not currently employed and has not been employed since their daughter was born in 2000. Kelly presented evidence that Peter is behind on his child support obligation.
In the referee's report filed August 24, 2010, the referee stated that although Peter may be eligible for a reduction in his child support under the Nebraska Child Support Guidelines, he did not recommend that the guidelines be used because Peter's case is outside the normal financial framework on which the guidelines are based. The referee stated:
while [Peter] does have reduction in salary he has holding[s] worth almost Two Million Dollars ($2,000,000) and seem[s] to be will[ing] to spend his savings and borrow monies to protect his financial situation while not protecting his child's current or future financial situation. He is currently delinquent in his support but maintains two pieces of real estate in the Omaha area and one in Colorado. [Peter] should not be granted a reduction on his most important financial obligation, the one to his child while he continues to protect and build his own financial situation.The referee recommended that Peter's complaint for modification be denied.
Peter filed an exception to the referee's report on September 7, 2010. In an order filed October 6, the district court filed an order overruling Peter's exception to the referee's report. In the district court's order, the court stated that after reviewing the evidence, it appeared that there was sufficient evidence to support the referee's findings in light of Peter's significant real estate holdings and his willingness to spend his savings and borrowed monies to protect his financial situation. The district court accepted and adopted the findings and recommendations of the referee.
Peter appeals.
ASSIGNMENTS OF ERROR
Peter argues, condensed and restated, that the trial court erred in (1) failing to calculate his child support obligation under the child support guidelines and (2) failing to include a child support calculation in its decision.
STANDARD OF REVIEW
Modification of child support payments is entrusted to the trial court's discretion, and although, on appeal, the issue is reviewed de novo on the record, the decision of the trial court will be affirmed absent an abuse of discretion. Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Id. 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.
ANALYSIS
On appeal, Peter argues that the trial court erred in failing to calculate his child support obligation under the child support guidelines and in failing to include a child support calculation in its decision.
Neb. Ct. R. § 4-203 provides:
The child support guidelines are to be applied as a rebuttable presumption. All orders for child support obligations shall be established in accordance with the provisions of the guidelines unless the court finds that one or both parties have produced sufficient evidence to rebut the presumption that the guidelines should be applied. . . . Findings must state the amount of support that would have been required under the guidelines and include a justification of why the order varies from the guidelines. . . . In the event of a deviation, the reason for the deviation shall be contained in the findings portion of the decree or order, or worksheet 5 should be completed by the court and filed in the court file.Section 4-203 further states that "[a]ll orders for child support, including modifications, must include a basic income and support calculation worksheet 1, and if used, worksheet 2 or 3."
In the instant case, the referee stated that although Peter may be eligible for a reduction in his child support under the child support guidelines, the referee did not recommend that the guidelines be used because Peter's case is outside the normal financial framework on which the guidelines are based. The referee stated that while Peter's salary decreased, Peter has holdings worth almost $2 million and seems to be willing to spend his savings and borrowed funds to protect his financial situation while not protecting his child's current or future financial situation. The referee recommended that Peter's complaint for modification be denied. The district court determined that there was sufficient evidence to support the referee's findings, and it adopted the recommendations of the referee and dismissed Peter's complaint to modify.
By adopting the referee's findings, the district court essentially found that Peter's decrease in income was a material change in circumstances warranting a reduction in child support under the guidelines, but further found that a deviation from the guidelines was justified based on the value of Peter's real estate. However, neither the referee nor the court attached a child support worksheet to its order. All orders concerning child support, including modifications, should include the appropriate child support worksheets. See § 4-203. Although the court denied Peter's complaint to modify, leaving his child support obligation the same, the court recalculated Peter's obligation based on the evidence presented (Peter's decrease in income and his real estate holdings) and a worksheet was necessary to show how the court arrived at the same amount of support that Peter had previously been ordered to pay.
Additionally, the district court's order does not state the amount of child support that Peter would have been required to pay under the guidelines based on his decreased monthly income. The court was required to do so since the court found that a deviation from the guidelines was appropriate. In the event of a deviation from the guidelines, the court should "state the amount of support that would have been required under the guidelines absent the deviation and include the reason for the deviation in the findings portion of the decree or order, or complete and file worksheet 5 in the court file. Jensen v. Jensen, 275 Neb. 921, 750 N.W.2d 335 (2008).
Because the district court failed to include a worksheet with its order and failed to state the amount of support that would have been required under the guidelines, we are unable to determine the method used by the court to determine Peter's child support obligation.
The Nebraska Supreme Court has recently stated that if a trial court fails to prepare the applicable worksheets, the parties are required to request that such worksheet be included in the trial court's order. Rutherford v. Rutherford, 277 Neb. 301, 761 N.W.2d 922 (2009). Orders for child support which do not contain such worksheets will on appeal be summarily remanded to the trial court so that it can prepare the worksheets as required by the guidelines. Rutherford v. Rutherford, supra.
In the instant case, the trial court did not attach a child support calculation worksheet to its order and there is no evidence in the record showing that counsel made an attempt to secure compliance with the rules on this matter. Therefore, we must remand the cause to the district court with directions to prepare the applicable child support worksheet. Once the district court has completed the worksheet, filing a new appeal will be necessary.
CONCLUSION
The cause is remanded with directions that the trial court prepare an order of modification consistent with this opinion.
REMANDED WITH DIRECTIONS.