Becker v. Becker

Page 485

573 N.W.2d 485

6 Neb.App. 277

Janet L. BECKER, Appellant, v. Bruce E. BECKER, Appellee.

No. A-97-279.

Court of Appeals of Nebraska.

Dec. 16, 1997.

Syllabus by the Court

1. Modification of Decree: Child Support: Appeal and Error. Modification of the amount of child support payments is entrusted to the discretion of the trial court, 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.

2. Modification of Decree: Child Support: Proof. 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.

3. Modification of Decree: Child Support. Among the factors to be considered in determining whether a material change of circumstances has occurred are changes in the financial position of the parent obligated to pay support, the needs of the children for whom support is paid, good or bad faith motive of the obligated parent in sustaining a reduction in income, and whether the change is temporary or permanent.

4. Child Support: Rules of the Supreme Court. Paragraph D of the Nebraska Child Support Guidelines defines total monthly income as the income of both parties derived from all sources, except all means-tested public assistance benefits and payments received for children of prior marriages.

5. Modification of Decree: Child Support. The general rule in Nebraska is to allow modification of a child support order to operate prospectively from the time of the modification order.

6. Courts: Modification of Decree: Child Support. A court is without authority to issue an order modifying child support retroactive to a date prior to the date of the filing of the application.

7. Courts: Modification of Decree: Child Support. Although a court may not forgive or modify past-due child support and cannot order modification retroactive before the filing of the application to modify, the court may modify child support coming due in the future.

8. Child Support. The paramount concern and question in determining child support is the best interests of the children.

9. Child Support. Earning capacity is a critical measure of the obligation to pay child support.

10. Modification of Decree: Child Support: Rules of the Supreme Court. All orders for child support, including modifications, must include from the Nebraska Child Support Guidelines a basic income and support calculation worksheet 1, and if used, worksheet 2 or 3.

Claude E. Berreckman, Jr., and Kelly L. Sudbeck, of Berreckman & Berreckman, P.C., Cozad, for appellant.

E. Bruce Smith, Lexington, for appellee.

SIEVERS, MUES, and INBODY, JJ.

SIEVERS, Judge.

INTRODUCTION

This case presents the issue of whether a workers' compensation settlement award should be considered for purposes of calculating child support.

BACKGROUND

Bruce E. Becker was married to Janet L. Becker on November 12, 1976, in Dawson County, Nebraska. During their marriage, the couple had two children: Jamie Lynn, born February 27, 1978, and Mark Edward, born May 20, 1981. In September 1993, Bruce ruptured a lower spinal disk in the course and scope of his employment when he fell while moving a large board. Bruce filed a workers' compensation claim for injuries received as a result of this accident. On December 3, 1993, in accordance with the wishes of the parties, a decree of dissolution of marriage was entered in the district court for Dawson County, Nebraska. The decree gave custody of the couple's minor children to Janet, subject to Bruce's right of reasonable visitation. Neither party was required to pay alimony, but Bruce stipulated to child support payments of

"$50.00 payable December 1, 1993, to increase to $275.00 per month commencing January 1, 1994, payable in the same amount on the first day of each month thereafter. Support payable from and after January 1, 1994 is based upon net monthly income of Petitioner [Janet] of approximately $1,063.00, and upon Respondent's [Bruce] net monthly income of approximately $800.00."

On February 3, 1995, the district court for Dawson County determined that Bruce's obligation for child support should be increased to $378 per month for two children and $242 for one child. In September 1995, Bruce suffered a recurrence of his back injury. As a result, on October 13, he filed a motion for a temporary modification of decree due to physical hardship, which stated:

A Material Change has taken place in the Health of the Respondent, Bruce Becker. A reacurrance [sic] of a medical condition (ruptured lower spinal disk) from a previous injury in September of 1993, has caused Respondent to be unable to work. Thus having no income to pay Court Ordered Support for the Respondents 2 minor children.

Respondent has been unable to work since September 15th, 1995 and has been under the care of an Orthopedic Specialist since September 19th 1995.... Respondent has been advised by his Doctor to not return to his type of employment (carpentry) until approximately December, 5th, 1995....

....

WHEREFOR RESPONDENT PRAYS TO THE COURT THAT:

That the Respondent, Bruce Becker, be Temporarily ... relieved of the Financial Burden of, Child Support, Medical Insurance Premiums of minor children, Payments of 1/2 of uncovered Medical Expenses. Until such time Respondent is Medically capable of returning to fulltime Gainfull [sic] employment.

In a journal entry filed November 6, 1995, the district court reduced Bruce's child support payment to $50 per month per child for a total of $100 per month retroactive to September 15, 1995.

Bruce was released by his doctor to return to regular work as of January 25, 1996, subject to a lifting restriction of 50 pounds using proper body mechanics. On February 28, Janet filed an application for modification of decree, seeking to reinstate Bruce's prior child support obligation. In a journal entry filed March 21, the district court held that "child support payable by Respondent be reinstated effective March 1, 1996, in the same amount as was previously in effect, that being $378.00 per month for the two minor children of the parties...." The temporary child support reduction in the amount of $278 per month from September 15, 1995, to March 1, 1996, a period of 51/2 months, totaled $1,529.

In response to a second application by Janet to modify the divorce decree, the district court ruled on April 29, 1996: "The Court is further advised that, based on net monthly incomes of $1,283.00 for the Petitioner and $1,789.00 for the Respondent, the child support obligation of the Respondent shall be increased to $600.00 per month for the two minor children of the parties, effective April 1, 1996...." In response to a third application by Janet to modify the decree, the district court held, by journal entry filed November 20, 1996, that Bruce pay $416 per month for the two minor children, based on a net monthly income of $1,280 for Janet and $1,218 for Bruce.

Janet filed a fourth application for modification of decree on December 13, 1996. The fourth application is the subject of this appeal. This request for modification alleged, in pertinent part:

The Respondent has recently received the proceeds of a $35,000.00 Workers' Compensation Lump Sum Settlement....

... The proceeds of the lump sum settlement ... constitute income under Section D of the Nebraska Child Support Guidelines and the amount received constitutes a material change in circumstances justifying modification of the Decree to increase the child support obligation of Respondent.

Janet requested a prospective increase in child support and reimbursement for the reduction in child support received by Bruce for the months he did not work.

Bruce alleged in an affidavit offered at the hearing on the application for modification that after attorney fees, costs, and "basic furniture" was purchased, he had $13,000 remaining from the $35,000 settlement and continued to "have bothersome back problems, and anticipates that further surgery will be required." In a journal entry filed February 6, 1997, the district court denied Janet's application to further increase child support based on the lump-sum settlement. Janet moved for a new trial, and after this motion was denied, she appealed.

ASSIGNMENTS OF ERROR

Janet argues that the trial court erred (1) in finding that the workers' compensation lump-sum settlement did not constitute a material change in circumstances pursuant to the Nebraska Child Support Guidelines, (2) in finding that the settlement did not constitute income pursuant to the Nebraska Child Support Guidelines, and (3) in denying her application for modification.

STANDARD OF REVIEW

On November 13, 1996, Bruce received a lump-sum settlement of $35,000 from his workers' compensation claim. Exhibit B, attached to Bruce's application for approval of final lump-sum settlement, indicates that the settlement consisted of $5,943.57 for temporary total disability for the period from September 5, 1995, through February 9, 1996; $10,436.27 for permanent partial disability based on a 10-percent disability and the resulting reduction in Bruce's earning capacity; and $18,620.16 of "additional consideration."

Modification of the amount of child support payments is entrusted to the discretion of the trial court, 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. Marr v. Marr, 245 Neb. 655, 515 N.W.2d 118 (1994); Sabatka v. Sabatka, 245 Neb. 109, 511 N.W.2d 107 (1994).

ANALYSIS

Lump-Sum Settlement as Income for Child Support Purposes.

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...