In this appeal for modification of a dissolution decree in regards to child support, retroactive child support, and the payor’s attempt to get payments that he had made to the payee (when the child was in fact living with him) the Nebraska Court of Appeals recalculated the child support worksheets to determine the child support amount, and vacated the district court’s decision regarding the recovery of payments he had already made.
Lucero v. Lucero, 16 Neb. App. 706 (2008)
Court of Appeals Headnotes
Modification of Decree:
1. Child Support:
a. Appeal and Error. An appellate court reviews modifications of child support de novo on the record and will affirm the judgment of the trial court absent an abuse of discretion.
b. Time. Absent equities to the contrary, the modification of child support orders should be applied retroactively to the first day of the month following the filing date of the application for modification. ••• The same principles that apply with respect to retroactivity of a new obligation to pay support, i.e., that the obligation can be retroactive to the first day of the month following the filing of a request to modify to impose (or increase) a child support obligation, should generally apply also when the request is to terminate a child support obligation.
c. Equity: Estoppel. When a divorce decree provides for the payment of stipulated sums monthly for the support of a minor child or children, such payments become vested in the payee as they accrue, and generally, the courts are without authority to reduce the amounts of such accrued payments. The articulated exception to the vesting rule concerns situations in which the payee is equitably estopped from collecting the accrued payments.
Child Support:
1. Where a parent’s annual earnings show a clear pattern of consistently increasing income, current earnings, not income averaging, should be used in calculating the child support obligation. ••• In the absence of a showing of bad faith, it is an abuse of discretion for a court to award retroactive child support when the evidence shows the obligated parent does not have the ability to pay the retroactive support and still meet current obligations.
2. Stipulations. A stipulation for child support is not binding on the court.
3. Rules of the Supreme Court. Paragraph C of the Nebraska Child Support Guidelines provides that all stipulated agreements for child support must be reviewed against the guidelines and if a deviation exists and is approved by the court, specific findings giving the reason for the deviation must be made. ••• Paragraph L of the Nebraska Child Support Guidelines provides that when a specific provision for joint physical custody is ordered and each party’s parenting time exceeds 142 days per year, it is a rebuttable presumption that support shall be calculated using worksheet 3. ••• Paragraph L of the Nebraska Child Support Guidelines provides that when a specific provision for joint physical custody is ordered and one party’s parenting time is 109 to 142 days per year, the use of worksheet 3 to calculate support is at the discretion of the court.
4. Visitation: Time: Rules of the Supreme Court. Paragraph J of the Nebraska Child Support Guidelines provides that when there are 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.
5. Proof. The parent claiming a deduction for health insurance must show that he or she has incurred an increased cost to maintain the coverage for the children over what it would cost to insure himself or herself.
Judgments:
1. Proof. The district court may, on motion and satisfactory proof that a judgment has been paid or satisfied in whole or in part by the act of the parties thereto, order it discharged and canceled of record, to the extent of the payment or satisfaction.
Date Filed and Case No.: May 27, 2008. No. A-07-914.
Court Appealed From: District Court for Garden County: Kristine R. Cecava, Judge.
Attorneys for the Appeal: Robert M. Brenner for Renee K. Lucero, appellant. Leonard G. Tabor for Ivan M. Lucero, appellee.
Judges: Severs, Moore, and Cassel, Judges.
Authored By: Severs, Judge.
Summary: Renee K. Lucero appealed to the Nebraska Court of Appeals, the decision of the district court modifying child custody, the parties’ respective child support obligations, and the visitation provisions. The district court (1) ordered Renee to pay child support in the amount of $439 per month retroactive to June 1, 2007, and (2) retroactively terminated Ivan M. Lucero’s child support obligation as of January 31, 2007.
Did the district court err in calculating Renee’s child support payment of $439 per month by its using incorrect income figures in the basic worksheet attached to the order and by its not taking into account established deviations and other deductions? In this case, the district court attached two child support worksheets to its order, but did not specifically adopt either (although as the Nebraska Court of Appeals has said many times, the trial courts are obligated to do so.) Neither child support worksheet reflected the $439 figure as ordered by the district court.
The Court said that Renee is correct in that both parties agreed that worksheet 3, a calculation for joint physical custody, would be used. However, the Court noted that a stipulation for child support is not binding on the court. When a specific provision for joint physical custody is ordered and each party’s parenting time exceeds 142 days per year, it is a rebuttable presumption that support shall be calculated using worksheet 3. When a specific provision for joint physical custody is ordered and one party’s parenting time is 109 to 142 days per year, the use of worksheet 3 to calculate support is at the discretion of the court.
In its order, the district court specifically stated that there is no joint physical custody of the child. If Renee has Jerad with her in Nebraska for the maximum time allowed by the district court, the time she will have Jerad is right at 90 days per year. Therefore, using worksheet 3 to calculate the parties’ child support obligation would not be in accordance with paragraph L of the Guidelines and the court did not abuse its discretion in not using worksheet 3.
To avoid the cost and delay to the parties involved in remanding the cause for the district court to adopt a worksheet, the Court did their own worksheet 1 and found that Renee’s child support obligation shall be $446.69 per month. In the event that Renee has Jerad for more than 30 consecutive days in the summer the Court found that her child support for June and July should be abated by one-half under Paragraph J of the Guidelines. Although Renee would undoubtedly incur additional expenses when Jared is with her, the Court noted that Ivan’s costs in maintaining Jared’s permanent home will not disappear. “Therefore, we cannot say that the trial court abused its discretion in its selection of a 50-percent abatement rather than an 80-percent abatement of Renee’s support obligation.”
The Court did not give either parent a deduction for health insurance premiums paid to cover Jerad, because neither party submitted sufficient evidence of the increased cost of such coverage. Nor it did they give Renee her requested deduction for retirement savings contributions because there was not sufficient evidence in the record to support such. Finally, they Court did not give Renee her requested deviation for travel costs associated with Jerad’s visitation costs.
Did the district court err in determining Renee should retroactively commence child support payment on June 1, 2007, and retroactively terminating Ivan’s obligation to pay child support as of January 31, 2007, and ordering Renee to pay back child support she had received after such date? Ivan filed his motion for modification on January 30, 2007, requesting that his child support be terminated. Therefore, the retroactivity date, if applicable, would be February 1, 2007. At the modification hearing, Renee testified that she does not have the ability to pay any retroactive child support the court might order. After reciting the evidence in the record to sport that claim, the Court said that clearly, Renee is in severe financial trouble and lacks the funds with which to make a sizeable retroactive child support payment. Therefore, the Court found that it was an abuse of discretion under the precedent cited in the opinion, for the district court to award retroactive child support to Ivan when the evidence showed that the obligated parent, Renee, does not have the ability to pay the retroactive support and still meet current obligations. As a result, the Court modified the district court’s decision to order that Renee’s child support shall begin September 1, 2007.
The Court then turned to the matter of the retroactivity of the termination of Ivan’s support obligation. The district court entered a judgment against Renee which in effect ordered her to pay back any child support she received from Ivan after January 31, 2007, by way of a judgment against Renee in Ivan’s favor. The trial court also found that of the money paid for child support after January 31, such would first be credited to Ivan’s arrears and accrued interest, which amounted to $724 at the time of the hearing, and the remaining amount of support she got after Jerad moved to Florida would constitute a judgment against Renee. While the district court did not enter an amount for such judgment, the evidence shows that such would be $3,468.
Renee argues that the payments she received after January 2007 were hers to keep because the payments vested in her month by month and the law is that the district court cannot forgive accrued child support, which the judgment against her would in effect do. The Court wrote that while the record showed that Ivan changed position by supporting Jerad in his Florida home, the record has no evidence of any agreement or representation by Renee that support would end in January or February 2007. In this case the payor, Ivan, is seeking the return of payments made to the payee, Renee, rather than Renee seeking unpaid but accrued child support. Therefore, the Court vacated the judgment which had the effect of modifying or forgiving accrued child support payments. “We do so because the Truman (v. Truman, 256 Neb. 628, 591 N.W.2d 81 (1999))exception to the no forgiveness of accrued child support rule does not apply. And while we admit to some discomfort with this result, given that Ivan was following a court order to pay support which had not yet been modified, meaning that he was supporting Jerad while also making monthly child support payments to Renee, it seems to us that we cannot ignore the fact that Ivan could have sought and likely obtained a temporary order upon motion and affidavit, suspending his payments pending the final hearing on his request to terminate child support payments rather than paying them and hoping to get them back from his finically distressed ex-wife.” Ivan’s child support payments became vested in Renee as they accrued, and equitable estoppel did not apply, therefore, the Court of Appeals ruled that the district court was without authority to order her to repay such monies. Doing so nullifies the rule that Renee’s child support vests in her month by month as it accrues and Truman does not apply (in addition to the fact that the evidence shows that Renee lacks the ability to make such payments.)
For those reasons, he Court found that the district court abused its discretion in giving Ivan a judgment against Renee for amounts paid after January beyond the credit against his arrearages and interest. Therefore, other than his arrearages and interest being deemed paid, such judgment against Renee is hereby vacated and set aside.
Did the district court err in redetermining how the visitation travel costs should be divided? At the beginning of the modification hearing, counsel for both parties stated to the district court what they believed the parties had agreed to with regard to visitation travel costs. Instead, however, the district court ordered that the cost of Jerad’s round trip airline tickets for visitations with Renee were to be divided equally and stated how the costs were to be paid. The Court noted that the parties’ agreement was practical, even-handed, and put the responsibility for securing the ticket on the party paying for it. On the other hand, the district court’s decision was “cumbersome and puts all of the purchasing burden on Renee—when she may well be without a credit card, given her dire financial circumstances.” Therefore, the Court found that the district court abused its discretion in its determination of how travel costs would be handled and should have ordered such travel costs for visitation be divided as the parties agreed. They therefore modified the district court’s order in that regard.
Conclusion: The Nebraska Court of Appeals found that Renee’s child support obligation shall be $446.69 per month, beginning September 1, 2007 and attached its child support worksheet calculation to the opinion and the conditions for abating the support during the summer. They found that the district court did not abuse its discretion in giving Ivan a credit against any prior child support arrearage and interest by way of the payments he made after February 1, 2007, and such in the amount of $724 are deemed paid. However, the Court found that the district court was without authority to enter a judgment against Renee for any “overpayment” of child support by Ivan beyond such arrearage and interest, and therefore to such extent the judgment against Renee was vacated and set aside. The Court modified the district court’s order regarding the division of travel costs for visitation and adopted the parties’ stipulation. AFFIRMED IN PART AS MODIFIED, AND IN PART VACATED AND SET ASIDE.
In this appeal for modification of a dissolution decree in regards to child support, retroactive child support, and the payor’s attempt to get payments that he had made to the payee (when the child was in fact living with him) the Nebraska Court of Appeals recalculated the child support worksheets to determine the child support amount, and vacated the district court’s decision regarding the recovery of payments he had already made.
Lucero v. Lucero, 16 Neb. App. 706 (2008)
Court of Appeals Headnotes
Modification of Decree:
1. Child Support:
a. Appeal and Error. An appellate court reviews modifications of child support de novo on the record and will affirm the judgment of the trial court absent an abuse of discretion.
b. Time. Absent equities to the contrary, the modification of child support orders should be applied retroactively to the first day of the month following the filing date of the application for modification. ••• The same principles that apply with respect to retroactivity of a new obligation to pay support, i.e., that the obligation can be retroactive to the first day of the month following the filing of a request to modify to impose (or increase) a child support obligation, should generally apply also when the request is to terminate a child support obligation.
c. Equity: Estoppel. When a divorce decree provides for the payment of stipulated sums monthly for the support of a minor child or children, such payments become vested in the payee as they accrue, and generally, the courts are without authority to reduce the amounts of such accrued payments. The articulated exception to the vesting rule concerns situations in which the payee is equitably estopped from collecting the accrued payments.
Child Support:
1. Where a parent’s annual earnings show a clear pattern of consistently increasing income, current earnings, not income averaging, should be used in calculating the child support obligation. ••• In the absence of a showing of bad faith, it is an abuse of discretion for a court to award retroactive child support when the evidence shows the obligated parent does not have the ability to pay the retroactive support and still meet current obligations.
2. Stipulations. A stipulation for child support is not binding on the court.
3. Rules of the Supreme Court. Paragraph C of the Nebraska Child Support Guidelines provides that all stipulated agreements for child support must be reviewed against the guidelines and if a deviation exists and is approved by the court, specific findings giving the reason for the deviation must be made. ••• Paragraph L of the Nebraska Child Support Guidelines provides that when a specific provision for joint physical custody is ordered and each party’s parenting time exceeds 142 days per year, it is a rebuttable presumption that support shall be calculated using worksheet 3. ••• Paragraph L of the Nebraska Child Support Guidelines provides that when a specific provision for joint physical custody is ordered and one party’s parenting time is 109 to 142 days per year, the use of worksheet 3 to calculate support is at the discretion of the court.
4. Visitation: Time: Rules of the Supreme Court. Paragraph J of the Nebraska Child Support Guidelines provides that when there are 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.
5. Proof. The parent claiming a deduction for health insurance must show that he or she has incurred an increased cost to maintain the coverage for the children over what it would cost to insure himself or herself.
Judgments:
1. Proof. The district court may, on motion and satisfactory proof that a judgment has been paid or satisfied in whole or in part by the act of the parties thereto, order it discharged and canceled of record, to the extent of the payment or satisfaction.
Date Filed and Case No.: May 27, 2008. No. A-07-914.
Court Appealed From: District Court for Garden County: Kristine R. Cecava, Judge.
Attorneys for the Appeal: Robert M. Brenner for Renee K. Lucero, appellant. Leonard G. Tabor for Ivan M. Lucero, appellee.
Judges: Severs, Moore, and Cassel, Judges.
Authored By: Severs, Judge.
Summary: Renee K. Lucero appealed to the Nebraska Court of Appeals, the decision of the district court modifying child custody, the parties’ respective child support obligations, and the visitation provisions. The district court (1) ordered Renee to pay child support in the amount of $439 per month retroactive to June 1, 2007, and (2) retroactively terminated Ivan M. Lucero’s child support obligation as of January 31, 2007.
Did the district court err in calculating Renee’s child support payment of $439 per month by its using incorrect income figures in the basic worksheet attached to the order and by its not taking into account established deviations and other deductions? In this case, the district court attached two child support worksheets to its order, but did not specifically adopt either (although as the Nebraska Court of Appeals has said many times, the trial courts are obligated to do so.) Neither child support worksheet reflected the $439 figure as ordered by the district court.
The Court said that Renee is correct in that both parties agreed that worksheet 3, a calculation for joint physical custody, would be used. However, the Court noted that a stipulation for child support is not binding on the court. When a specific provision for joint physical custody is ordered and each party’s parenting time exceeds 142 days per year, it is a rebuttable presumption that support shall be calculated using worksheet 3. When a specific provision for joint physical custody is ordered and one party’s parenting time is 109 to 142 days per year, the use of worksheet 3 to calculate support is at the discretion of the court.
In its order, the district court specifically stated that there is no joint physical custody of the child. If Renee has Jerad with her in Nebraska for the maximum time allowed by the district court, the time she will have Jerad is right at 90 days per year. Therefore, using worksheet 3 to calculate the parties’ child support obligation would not be in accordance with paragraph L of the Guidelines and the court did not abuse its discretion in not using worksheet 3.
To avoid the cost and delay to the parties involved in remanding the cause for the district court to adopt a worksheet, the Court did their own worksheet 1 and found that Renee’s child support obligation shall be $446.69 per month. In the event that Renee has Jerad for more than 30 consecutive days in the summer the Court found that her child support for June and July should be abated by one-half under Paragraph J of the Guidelines. Although Renee would undoubtedly incur additional expenses when Jared is with her, the Court noted that Ivan’s costs in maintaining Jared’s permanent home will not disappear. “Therefore, we cannot say that the trial court abused its discretion in its selection of a 50-percent abatement rather than an 80-percent abatement of Renee’s support obligation.”
The Court did not give either parent a deduction for health insurance premiums paid to cover Jerad, because neither party submitted sufficient evidence of the increased cost of such coverage. Nor it did they give Renee her requested deduction for retirement savings contributions because there was not sufficient evidence in the record to support such. Finally, they Court did not give Renee her requested deviation for travel costs associated with Jerad’s visitation costs.
Did the district court err in determining Renee should retroactively commence child support payment on June 1, 2007, and retroactively terminating Ivan’s obligation to pay child support as of January 31, 2007, and ordering Renee to pay back child support she had received after such date? Ivan filed his motion for modification on January 30, 2007, requesting that his child support be terminated. Therefore, the retroactivity date, if applicable, would be February 1, 2007. At the modification hearing, Renee testified that she does not have the ability to pay any retroactive child support the court might order. After reciting the evidence in the record to sport that claim, the Court said that clearly, Renee is in severe financial trouble and lacks the funds with which to make a sizeable retroactive child support payment. Therefore, the Court found that it was an abuse of discretion under the precedent cited in the opinion, for the district court to award retroactive child support to Ivan when the evidence showed that the obligated parent, Renee, does not have the ability to pay the retroactive support and still meet current obligations. As a result, the Court modified the district court’s decision to order that Renee’s child support shall begin September 1, 2007.
The Court then turned to the matter of the retroactivity of the termination of Ivan’s support obligation. The district court entered a judgment against Renee which in effect ordered her to pay back any child support she received from Ivan after January 31, 2007, by way of a judgment against Renee in Ivan’s favor. The trial court also found that of the money paid for child support after January 31, such would first be credited to Ivan’s arrears and accrued interest, which amounted to $724 at the time of the hearing, and the remaining amount of support she got after Jerad moved to Florida would constitute a judgment against Renee. While the district court did not enter an amount for such judgment, the evidence shows that such would be $3,468.
Renee argues that the payments she received after January 2007 were hers to keep because the payments vested in her month by month and the law is that the district court cannot forgive accrued child support, which the judgment against her would in effect do. The Court wrote that while the record showed that Ivan changed position by supporting Jerad in his Florida home, the record has no evidence of any agreement or representation by Renee that support would end in January or February 2007. In this case the payor, Ivan, is seeking the return of payments made to the payee, Renee, rather than Renee seeking unpaid but accrued child support. Therefore, the Court vacated the judgment which had the effect of modifying or forgiving accrued child support payments. “We do so because the Truman (v. Truman, 256 Neb. 628, 591 N.W.2d 81 (1999))exception to the no forgiveness of accrued child support rule does not apply. And while we admit to some discomfort with this result, given that Ivan was following a court order to pay support which had not yet been modified, meaning that he was supporting Jerad while also making monthly child support payments to Renee, it seems to us that we cannot ignore the fact that Ivan could have sought and likely obtained a temporary order upon motion and affidavit, suspending his payments pending the final hearing on his request to terminate child support payments rather than paying them and hoping to get them back from his finically distressed ex-wife.” Ivan’s child support payments became vested in Renee as they accrued, and equitable estoppel did not apply, therefore, the Court of Appeals ruled that the district court was without authority to order her to repay such monies. Doing so nullifies the rule that Renee’s child support vests in her month by month as it accrues and Truman does not apply (in addition to the fact that the evidence shows that Renee lacks the ability to make such payments.)
For those reasons, he Court found that the district court abused its discretion in giving Ivan a judgment against Renee for amounts paid after January beyond the credit against his arrearages and interest. Therefore, other than his arrearages and interest being deemed paid, such judgment against Renee is hereby vacated and set aside.
Did the district court err in redetermining how the visitation travel costs should be divided? At the beginning of the modification hearing, counsel for both parties stated to the district court what they believed the parties had agreed to with regard to visitation travel costs. Instead, however, the district court ordered that the cost of Jerad’s round trip airline tickets for visitations with Renee were to be divided equally and stated how the costs were to be paid. The Court noted that the parties’ agreement was practical, even-handed, and put the responsibility for securing the ticket on the party paying for it. On the other hand, the district court’s decision was “cumbersome and puts all of the purchasing burden on Renee—when she may well be without a credit card, given her dire financial circumstances.” Therefore, the Court found that the district court abused its discretion in its determination of how travel costs would be handled and should have ordered such travel costs for visitation be divided as the parties agreed. They therefore modified the district court’s order in that regard.
Conclusion: The Nebraska Court of Appeals found that Renee’s child support obligation shall be $446.69 per month, beginning September 1, 2007 and attached its child support worksheet calculation to the opinion and the conditions for abating the support during the summer. They found that the district court did not abuse its discretion in giving Ivan a credit against any prior child support arrearage and interest by way of the payments he made after February 1, 2007, and such in the amount of $724 are deemed paid. However, the Court found that the district court was without authority to enter a judgment against Renee for any “overpayment” of child support by Ivan beyond such arrearage and interest, and therefore to such extent the judgment against Renee was vacated and set aside. The Court modified the district court’s order regarding the division of travel costs for visitation and adopted the parties’ stipulation. AFFIRMED IN PART AS MODIFIED, AND IN PART VACATED AND SET ASIDE.
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