Opinion
No. A-10-1183.
08-09-2011
MARY A. ZIMMERMAN, APPELLEE AND CROSS-APPELLANT, v. FRANKLIN J. ZIMMERMAN, APPELLANT AND CROSS-APPELLEE.
Allen Fankhauser, of Fankhauser, Nelsen, Werts & Ziskey, P.C., for appellant. Angelo M. Ligouri, of Ligouri Law Office, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
ZIMMERMAN V. ZIMMERMAN
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 Nemaha County: DANIEL E. BRYAN, JR., Judge. Affirmed.
Allen Fankhauser, of Fankhauser, Nelsen, Werts & Ziskey, P.C., for appellant. Angelo M. Ligouri, of Ligouri Law Office, for appellee.
IRWIN, CASSEL, and PIRTLE, Judges.
IRWIN, Judge.
I. 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. Franklin J. Zimmerman appeals and Mary A. Zimmerman cross-appeals from the order of the district court which modified their dissolution decree by increasing Franklin's child support obligation and by granting Franklin an abatement of his child support during the months he exercises his extended summer parenting time. On appeal, Franklin argues that the district court erred in calculating his current income and, as a result, erred in calculating his modified child support obligation. On cross-appeal, Mary argues that the court erred in granting Franklin an abatement of his child support during the months he exercises his summer parenting time and erred in failing to award her attorney fees. For the reasons set forth herein, we affirm the order of the district court.
II. BACKGROUND
Franklin and Mary were married on October 5, 1985. Two children were born of the marriage—the first in February 1989 and the second in November 1995.
The parties' marriage was dissolved by a decree of the district court on March 17, 2008. In the decree, the district court explicitly accepted the terms of the parties' property settlement agreement and parenting plan. As a part of that agreement and plan, the parties' agreed that Mary would have physical custody of the parties' remaining minor child and that Franklin would have parenting time with the child on alternating weekends, on certain holidays, and for an 8-week period during each summer. The court ordered Franklin to pay child support in the amount of $476 per month.
On December 14, 2009, Franklin filed a complaint to modify the decree. In his complaint, Franklin asked the district court to abate his child support obligation by 80 percent during his 2 months of summer parenting time.
Mary filed an answer and cross-complaint for modification on January 13, 2010. In her cross-complaint, Mary alleged that Franklin's income had increased since the entry of the decree and requested the court to increase Franklin's support obligation based on the alleged increase in his income.
A modification hearing was held before the district court on October 27, 2010. The evidence presented at this hearing focused on the parties' current financial circumstances. In particular, the evidence concentrated on the overtime wages Franklin earns from his employment with the Harlan County Sheriff's office. We will detail the evidence presented at the modification hearing as necessary below.
The district court entered an order on November 3, 2010, reflecting its findings as to the parties' requests for modification. The court found that Franklin's income had increased since the entry of the decree in March 2008. The court calculated Franklin's current annual income to be $38,718. Based on its calculation of Franklin's current income, the district court modified Franklin's child support obligation and ordered him to pay $604 per month. The court also found that Franklin's child support obligation "is reduced by 80% for the months of June and July when [Franklin] has parenting time with the minor child."
Franklin appeals, and Mary cross-appeals.
III. ASSIGNMENTS OF ERROR
On appeal, Franklin argues that the district court erred in calculating his current income and, as a result, erred in calculating his child support obligation.
On cross-appeal, Mary argues that the district court erred in granting Franklin an abatement of his child support during the months he exercises his summer parenting time and erred in failing to award her attorney fees.
IV. ANALYSIS
1. STANDARD OF REVIEW
Modification of child support is entrusted to the discretion of the trial court. Rutherford v. Rutherford, 277 Neb. 301, 761 N.W.2d 922 (2009). An appellate court reviews proceedings for modification of child support de novo on the record and will affirm the judgment of the trial court absent an abuse of discretion. Id.
In an action for modification of a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion. Finney v. Finney, 273 Neb. 436, 730 N.W.2d 351 (2007).
A judicial abuse of discretion exists when reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Id.
2. FRANKLIN'S APPEAL
In its order modifying the parties' decree, the district court found Franklin's current annual income to be $38,718. We can assume that the district court based its calculation of Franklin's income on tax documents from 2009 which reflect that during that year, Franklin earned a gross annual income of $38,718 from his employment with the Harlan County Sheriff's office. The district court utilized Franklin's 2009 gross annual income to calculate his modified child support obligation of $604 per month.
On appeal, Franklin argues that the district court erred in calculating his current income and, as a result, erred in calculating his child support obligation. Specifically, Franklin asserts that the district court erred in relying on the gross annual income reflected in his 2009 tax documents to calculate his current income because his 2009 gross annual income includes overtime wages which are not a regular part of his income. Franklin argues that the district court should have instead relied solely on Franklin's regular hourly wages to calculate his current income. Upon our de novo review of the record, we do not find that the district court abused its discretion in calculating Franklin's current income or in calculating his child support obligation.
Before we address Franklin's assignment of error, we note that Franklin does not assert that the district court erred in modifying or increasing his child support obligation. Rather, Franklin's argument centers on the amount of the increase in his child support obligation. In fact, at the modification hearing, Franklin conceded that he is currently making more money per hour than he was at the time of the decree. As such, we focus our discussion only on whether Franklin's overtime wages should be included in a calculation of his current income.
In general, child support payments should be set according to the Nebraska Child Support Guidelines. Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009). The guidelines provide that in calculating child support, a court must consider the total monthly income of both parties. Neb. Ct. R. § 4-204. See, also, Simpson v. Simpson, 275 Neb. 152, 744 N.W.2d 710 (2008). Section 4-204 of the guidelines defines total monthly income as income "derived from all sources, except all means-tested public assistance benefits which includes any earned income tax credit and payments received for children of prior marriages." Section 4-204 also provides:
The court may consider overtime wages in determining child support if the overtime is a regular part of the employment and the employee can actually expect to regularly earn a certain amount of income from working overtime. In determining whether overtime is a regular part of employment, the court may consider such factors as the work history of the employee for the employer, the degree of control the employee has over work conditions, and the nature of the employer's business or industry.The Nebraska Supreme Court has indicated that a court's findings regarding the employee's level of income should not be based on the inclusion of income that is entirely speculative in nature and over which the employee has little or no control. Stuczynski v. Stuczynski, 238 Neb. 368, 471 N.W.2d 122 (1991).
At the modification hearing, Franklin testified that his employment with the Harlan County Sheriff's office does not include any regular or preplanned overtime hours. Instead, the availability of overtime hours is "random" and "depends on whatever happens." Franklin also testified that he never knows in advance when he will be given the opportunity to work overtime hours. However, Franklin also testified that he has been given the opportunity to work overtime hours for as long as he has worked for the Harlan County Sheriff's office. He also indicated that he is willing and able to accept any overtime hours offered to him. He testified that he is available to accept such hours on short notice. Mary testified that Franklin has even canceled visitations with the minor child in order to work overtime hours. Evidence in the record also reveals that during the first few months of 2010, Franklin continued to work a similar amount of overtime hours as he did during 2009. And, although Franklin testified that overtime hours are not encouraged by his employer due to budget constraints, he did not indicate that he had any reason to believe that the availability for overtime hours would be reduced in the near future.
Based on the evidence presented at the modification hearing, we cannot say that the district court abused its discretion in including Franklin's overtime wages in the calculation of his current income. While Franklin's testimony is somewhat conflicting about the availability of overtime hours at his employment, on the whole, his testimony reflects that overtime hours are consistently available to him and that overtime wages can be considered a regular part of his income.
3. MARY'S CROSS-APPEAL
(a) Abatement of Franklin's Child Support
During Summer Parenting Time
The district court granted Franklin's request to abate his child support obligation by 80 percent during the months he exercises his summer parenting time. On Mary's cross-appeal, she asserts that the district court erred in granting the abatement. She argues that Franklin did not demonstrate that there was a material change of circumstances warranting a modification of his summer child support obligation. Upon our de novo review of the record, we do not find that the district court abused its discretion in granting the abatement.
The Nebraska Supreme Court has consistently held that a party seeking to modify a child support order must show a material change in circumstances which has occurred subsequent to the entry of the original decree or a previous modification and was not contemplated when the decree was entered. Rhoades v. Rhoades, 258 Neb. 721, 605 N.W.2d 454 (2000). We first address Mary's assertion that there was no material change of circumstances warranting modification of Franklin's summer child support obligation.
The district court modified the original child support order by increasing the amount of Franklin's child support obligation and by granting him the abatement. As we discussed above, the district court modified the amount of Franklin's child support obligation after finding that his income had increased since the entry of the decree. Implicit in the district court's decision to modify Franklin's child support obligation, is its finding that the increase in Franklin's income constituted a material change in circumstances warranting modification of child support. We note that neither Mary nor Franklin argues that the court erred in finding such a material change of circumstances. In fact, in Mary's cross-complaint for modification, she requested that the court find that Franklin's increase in income constituted a material change of circumstances.
Once the material change of circumstance was demonstrated with respect to the amount of child support, the district court, which may always review or modify a child support order, was also justified in reassessing the propriety of an abatement of Franklin's child support obligation during the months he exercised his extended summer visitation. See Reinsch v. Reinsch, 259 Neb. 564, 611 N.W.2d 86 (2000) (finding that once material change of circumstances was demonstrated with respect to amount of child support, trial court was justified in also modifying duration of child support order). The district court was not required to find a separate material change of circumstances specifically relating to the abatement in order to modify the amount of Franklin's child support and grant his request for an abatement of his child support during his summer parenting time.
We next address the district court's decision to grant Franklin's request for the abatement. The Nebraska Child Support Guidelines indicate that abatement of a child support obligation may be appropriate during periods of extended parenting time. Neb. Ct. R. § 4-210 provides in relevant part:
Visitation or parenting time adjustments or direct cost sharing should be specified in the support order. If child support is not calculated [pursuant to a joint custody order], an adjustment in child support may be made at the discretion of the court when visitation or parenting time substantially exceeds alternating weekends and holidays and 28 days or more in any 90-day period. During visitation or parenting time periods of 28 days or more in any 90-day period, support payments may be reduced by up to 80 percent.
In the parties' parenting plan, they agreed that Franklin would have 8 weeks of parenting time with the minor child during the summer months. As such, during the summer, Franklin's parenting time exceeds 28 days in a 90-day period. The child support guidelines indicate that an 80-percent abatement of Franklin's child support obligation is permitted in this type of situation.
Because the parties demonstrated that there was a material change of circumstances warranting modification of the original child support order and because the child support guidelines clearly provide that an 80-percent abatement of child support may be warranted in situations like this, where the noncustodial parent exercises extended parenting time that exceeds 28 days in a 90-day period, we conclude that the district court did not err in granting Franklin's request for the abatement.
(b) Attorney Fees
Mary asserts that the district court erred in denying her request for attorney fees. Specifically, she argues that because she was the successful party in the modification action and because Franklin's complaint to modify the decree was frivolous in nature, she should be awarded a reasonable amount of attorney fees. Upon our review of the record, we do not find that the district court abused its discretion in denying Mary's request for attorney fees.
An award of attorney fees is discretionary and will not be disturbed on appeal absent an abuse of discretion. Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005). The award of attorney fees depends on multiple factors, including the nature of the case, the services performed and results obtained, the earning capacity of the parties, the length of time required for preparation and presentation of the case, customary charges of the bar, and the general equities of the case. Id. Customarily in dissolution cases, attorney fees and costs are awarded only to prevailing parties or assessed against those who file frivolous suits. Noonan v. Noonan, 261 Neb. 552, 624 N.W.2d 314 (2001).
Franklin's complaint to modify the decree requested that he be granted an 80-percent abatement of his child support obligation during his summer parenting time. As we discussed above, Franklin's request for the abatement was ultimately granted by the district court. Mary's cross-complaint requested that Franklin's child support obligation be increased to reflect the increase in his current income. Mary's request was granted. Contrary to Mary's assertion in her brief to this court, both Mary and Franklin can be considered successful parties in this modification action. In addition, we do not find that Franklin's complaint was frivolous.
Given the parties' financial circumstances and the equities of the case, we do not find that the district court abused its discretion in denying Mary's request for attorney fees.
V. CONCLUSION
We affirm the order of the district court modifying the parties' dissolution decree by increasing Franklin's child support obligation and by granting Franklin an abatement of his child support during the months he exercises his extended summer parenting time. In addition, we affirm the decision of the district court denying Mary attorney fees.
AFFIRMED.