Filed June 28, 1985.
1. Modification of Decree: Child Support. A court may modify child support becoming due in the future because of a material change in circumstances, of a nature requiring modifications in the best interests of the children, occurring after the entry of the dissolution decree. 2. Modification of Decree: Child Support: Words and Phrases. A "material change in circumstances" involves an alteration and passage from one condition to another and requires consideration of a variety of factors or circumstances, including the obligated parent's financial means, the needs of the child or children for whom the support is to be paid, the good or bad faith motive of the obligated parent in sustaining a reduction of means, and the permanence of the change. 3. Modification of Decree: Child Support: Alimony: Good Cause: Words and Phrases. A "material change in circumstances" in modification of child support cases is analogous to the "good cause" required to support a modification of alimony. 4. Divorce: Equity. Dissolution of marriage cases are equitable in nature. 5. Equity. One who comes into equity must come with clean hands. 6. ___. Equity will refuse to aid a litigant who violates a statute directly connected with the matter in litigation. 7. Modification of Decree: Child Support. Incarceration resulting in the reduction or elimination of income or assets does not constitute such a material change in circumstances as to warrant the temporary termination of a child support obligation.
Appeal from the District Court for Douglas County: JAMES M. MURPHY, Judge. Affirmed.
Berry, Anderson, Creager Wittstruck, for appellant.
Patricia J. Jacobs, for appellee.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
The applicant, Jerry Ohler, seeks to modify the decree dissolving his marriage so as to suspend his obligation to make child support payments. His application alleges a material change in circumstances in that he has been sentenced to imprisonment for a period of 15 years and is "now totally devoid of any funds, savings, stocks, bonds or any other liquidable [sic] or salable assets either real or personal; that he is unemployed, has no wages or other earnings currently available to him and has no income from any source currently available to him." The trial court determined that the application did not state a cause of action, sustained a general demurrer thereto, and dismissed the cause. We affirm.
Neb. Rev. Stat. § 42-364 (Reissue 1984) provides that when dissolving a marriage a court may include orders for the maintenance of a child "as shall be justified" and that "[s]ubsequent changes may be made by the court after hearing. . . ."
We have held that a court may modify child support becoming due in the future because of a material change in circumstances, of a nature requiring modifications in the best interests of the child or children for whose benefit the support was ordered, occurring after the entry of the dissolution decree. Tworek v. Tworek, 218 Neb. 808, 359 N.W.2d 764 (1984); Morisch v. Morisch, 218 Neb. 412, 355 N.W.2d 784 (1984); Harb v. Harb, 209 Neb. 875, 312 N.W.2d 279 (1981). A "material change in circumstances" has been said to elude precise and concise definition, but, rather, involves an alteration and passage from one condition to another and requires consideration of a variety of factors or circumstances, including the obligated parent's financial means, the needs of the child or children for whom the support is to be paid, the good or bad faith motive of the obligated parent in sustaining a reduction of means, and the permanence of the change. Morisch v. Morisch, supra. A material change in circumstances in this context is analogous to the "good cause" required to support a modification of alimony. Morisch v. Morisch, supra.
In that latter connection we have recently held in Cooper v. Cooper, 219 Neb. 64, 361 N.W.2d 202 (1985), that the combined effects of the obligated party's lower income from a voluntary but good faith change in employment and the benefited party's newfound capacity to work warranted a reduction in the amount of alimony previously ordered.
There is no question but that incarceration constitutes an alteration and passage from one condition to another. The issue is whether the altered condition is such as to warrant a suspension, that is to say a temporary termination, of one's child support obligation.
The suggestion that we have already resolved the matter in Sodders v. Sodders, 210 Neb. 276, 313 N.W.2d 927 (1981), is incorrect. Although Sodders refused to modify an incarcerated party's obligation to pay child support, there existed a trust fund upon which the incarcerated parent could draw to meet his obligation. In contrast, the allegation in the present case is in effect that there exists no "currently available" income or assets of any kind or nature whatsoever with which to make the payments. Thus, the question of whether incarceration which results in rendering the obligated parent without financial means constitutes a material change in circumstances such as to warrant a temporary termination of child support payments during the continuation of that condition is one of first impression for this court.
We have neither been directed to, nor does our research disclose, any substantial body of law on the subject. In two cases from other jurisdictions, wherein, like Sodders, an asset was available to the prisoner, relief was denied. The Iowa Supreme Court in In re Marriage of Vetternack, 334 N.W.2d 761 (Iowa 1983), said:
We agree with the trial court that the petitioner's equity in the house should be charged for the support payments he is unable to meet during the period of his incarceration. The crucial thing is that, during petitioner's incarceration, it will continue to be necessary to care, feed, and provide for his children. He remains responsible for those expenses. It would not be equitable for his equity in the home to remain set off to him while his children were being supported by others.
Although unemployment or diminution of earnings is a common ground for modification, a petition for modification will be denied if the change in financial condition is due to fault or voluntary wastage or dissipation of one's talents and assets. . . .
In the case at hand, the defendant was engaged in criminal activity at his own peril, and his reduced financial ability was due to his own fault. His child support and alimony obligations should not be reduced where his own conduct has resulted in his loss of high-earning employment and he has at least one valuable asset, while his former spouse and his child must make sacrifices. Modification of support decrees is an exercise of the court's equity powers. Equitable relief will be denied if one comes to the court with unclean hands. . . .
Edmonds and Edmonds, 53 Or. App. 539, 633 P.2d 4 (1981), is more directly in point. It holds that an incarcerated and obligated parent with no income should not be required to pay child support until he is capable of gainful employment. In so holding, the court of appeals quoted from Tice v. Tice, 207 Or. 247, 295 P.2d 866 (1956), a child support modification case not involving an incarcerated, obligated parent, the concept that "`[n]o court is justified in ordering a man to do the impossible.'" 53 Or. App. at ___, 633 P.2d at 5. The Edmonds court rejected application of the clean hands maxim referred to in Noddin.
We, however, are not persuaded by the reasoning of the Court of Appeals for the State of Oregon. Nebraska dissolution of marriage cases are equitable in nature. Petersen v. Petersen, 208 Neb. 1, 301 N.W.2d 592 (1981); Holmes v. Holmes, 152 Neb. 556, 41 N.W.2d 919 (1950). We have held that equity, under the general maxim that one who seeks equity must come with clean hands, will refuse its aid to a litigant who violates a statute directly connected with the matter in litigation. Christensen v. Christensen, 144 Neb. 763, 14 N.W.2d 613 (1944) (holding that one who entered into marriage with full knowledge he suffered from a venereal disease was barred from seeking an annulment).
Incarceration of the applicant necessarily means that he was found to have violated a criminal statute. It seems to us that where one seeks relief from the obligation to pay child support on the basis that he or she is incarcerated, the violation of the statute which resulted in the incarceration is directly connected with the matter of child support. Under those circumstances equity should not and will not act to give relief.
Moreover, although Noddin, supra, is, as noted earlier, factually distinguishable from the present case, its suggestion that one's child support obligations should not be modified where the means with which to pay were reduced or eliminated by criminal activity strikes us as sound. Incarceration is certainly a foreseeable result of criminal activity; we find no sound reason to relieve one of a child support obligation by virtue of the fact that he or she engaged in criminal conduct. There is no reason those who have had to step in and assume the applicant's obligation should not be reimbursed by the applicant should his future position enable him to so do.
Further, we do not see how the best interests of the children for whom the support was ordered would be served by temporarily terminating the applicant's child support obligation.
This holding is in no sense inconsistent with Cooper v. Cooper, 219 Neb. 64, 361 N.W.2d 202 (1985), for in Cooper no criminal activity was involved; rather, the reduced means with which to pay alimony resulted from a good faith change in occupation for sound and legitimate reasons.
The order of dismissal was correct and is affirmed.