Hodgen v. Hodgen

30 Neb.App. 456

970 N.W.2d 782

Lisa A. HODGEN, appellant,

v.Mark S. HODGEN, appellee.

No. A-20-927.

Court of Appeals of Nebraska.

Filed January 11, 2022

James C. Bocott, of Law Office of James C. Bocott, P.C., L.L.O., North Platte, for appellant.

Lindsay E. Pedersen, Attorney at Law, P.C., L.L.O., North Platte, for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Bishop, Judge.

INTRODUCTION

Lisa A. Hodgen, now known as Lisa A. Pickett, appeals from the order of the Lincoln County District Court modifying a decree which dissolved her marriage to Mark S. Hodgen. Lisa claims the district court abused its discretion in finding that a material change in circumstances had occurred justifying the reduction of Mark's child support and alimony obligations. She also argues the district court abused its discretion in reducing Mark's support obligations over her claim of unclean hands. We affirm.

BACKGROUND

FEBRUARY 2018 DECREE OF DISSOLUTION

The parties’ marriage was dissolved by decree on February 27, 2018. The decree reflects that the parties were married in 1977, and at the time of divorce, Lisa was 57 years old and Mark was 58 years old. Mark was ordered to pay $1,000 per month as alimony to Lisa for a period of 180 months. Only two of the parties’ children were affected by the decree; the parties were awarded joint legal custody, and Lisa was awarded physical custody. Mark was ordered to pay $1,405 per month in child support to Lisa, which could be abated by 50 percent in June, July, and August of each calendar year "so long as [Mark] has the minor children for visitation for 28 days or more during the summer." Lisa appealed the decree, but in case No. A-18-424, this court dismissed her appeal on July 12, 2018, for failure to file a brief.

POST-DECREE PROCEEDINGS

On October 1, 2018, Mark filed an "Application and Affidavit to Obtain Abatement of Child Support for Summer Visitation" in the district court, alleging that he had exercised 33 days of parenting time in the summer of 2018 and seeking a 50-percent abatement of his child support obligation for the months of June, July, and August in accordance with the February 2018 decree. Lisa objected to Mark's requested abatement, claiming that her living situation with the children could not afford having Mark's child support payments be halved. In an order entered on December 20, the district court granted Mark a 50-percent abatement in his child support obligation for the month of July, but the court denied his requests for abatement for June and August. Mark appealed the December 20 order, claiming the court erred in denying his request for abatement for June and August. In Hodgen v. Hodgen , No. A-19-285, 2019 WL 6130934 (Neb. App. Nov. 19, 2019) (selected for posting to court website), this court reversed the district court's order and remanded the matter with directions to grant Mark the requested 50-percent abatement for the months of June, July, and August 2018 in accordance with the terms of the parties’ decree.

JANUARY 2020 COMPLAINT TO MODIFY DECREE

On January 30, 2020, Mark filed a "Complaint to Modify Decree" in the district court, alleging that the loss of his employment and the corresponding decrease in his income constituted a material change in circumstances justifying modification of his child support and alimony obligations. Trial took place on September 10. Mark appeared with his attorney; Lisa did not appear, but she was represented by her attorney.

The evidence adduced at trial demonstrated that Mark had been employed by Union Pacific for 18 years and that he made approximately $95,000 in annual income. In September 2019, Mark was dismissed from his employment after an internal investigation and hearing; this dismissal stemmed from Mark's failure to properly complete employee risk assessments despite his belief that he was properly completing them. Mark appealed his dismissal through Union Pacific's internal review process, and his dismissal was upheld. Following the termination of his employment, Mark began looking elsewhere for a job. He applied for several positions and found no success until April 2020. Mark testified that he relied on his savings to take care of his living expenses and that he had also cashed out his life insurance policy and a "CD" purchased after the parties’ divorce to help cover his expenses. Beginning in October 2019, Mark began to receive "a little over $1,400 a month" in unemployment. This period of unemployment lasted until Mark found employment in April 2020. Mark subsequently left this job and began new employment in June. His annual salary was approximately $57,000 at the time of trial in September.

While he was unemployed, Mark began missing payments on his support obligations, and he continued to miss further payments after he became employed in April 2020. The payment history reports for Mark's alimony and child support show that under the terms of the parties’ decree, Mark owed $8,791.84 in unpaid child support and $12,190.06 in unpaid alimony as of September 8, 2020. Mark did not dispute these amounts at trial, and he testified that it would have been "[i]mpossible" for him to pay his support obligations while he was unemployed. He also expressed his belief that he could not afford to pay much toward his support obligations even after finding employment due to uncertainties in his living situation.

ORDER OF MODIFICATION , OCTOBER 2020 MOTIONS , AND APPEAL

On September 24, 2020, the district court entered an order modifying Mark's support obligations. At the time of the order, one of the two children affected by the February 2018 decree had attained the age of majority, and the court determined that there had "been no change in the earning capacity of [Lisa] since the decree was entered." With respect to Mark's loss of employment and reduced income, the court found:

It is undisputed that [Mark] was fired from his job with the Union Pacific Railroad for not properly preparing the required monthly risk assessments. However, it is equally clear that [he] did not voluntarily leave his job or reduce his earning capacity. The evidence is undisputed that he believed he was properly completing the risk assessments, and performing his job in the required manner. [Mark] did not want to leave his 28 [sic] year employment with the railroad, and took every step he could to retain that employment. Obviously, ... Union Pacific disagreed with his opinion regarding the manner in which he was completing the risk assessments, and was correct in its conclusion. However, that result is not dispositive of [Mark's] complaint.

Even though it was [Mark's] actions that caused him to lose his job, he believed he was performing his job properly and he had no intention of violating his rules of employment, reducing his income, or dissipating his earning capacity. Additionally, after being fired he under-took a serious and consistent effort to regain his job with the railroad and when that failed to find alternate employment.

Based on Mark's change of employment and loss of income, the court found that modification of Mark's child support obligation was warranted because there was a material change in circumstances occurring after the February 2018 decree not contemplated when the decree was entered. This material change in circumstances was also deemed to be good cause to modify Mark's alimony obligation. The court concluded that "there was no bad faith motive" in Mark's reduced level of income, that the reduction did not result from "the mere passage of time" or Mark's "wrongdoing or voluntary dissipation," and that the change was permanent. Based on these findings, the court ordered Mark to pay $750 per month in alimony to Lisa and $797 per month in child support, with a 50-percent abatement of child support in August if Mark exercised 28 consecutive days of his summer parenting time. The order set March 31, 2020, as the effective date of modification and also required Mark to maintain health insurance for the minor child.

Following the entry of the district court's order, Mark filed a "Motion to Reconsider, Alter or Amend Order" that requested the court to set the date of modification back to January 1, 2020, and to further reduce his alimony obligation to $600 per month. Lisa also filed a "Motion for New Trial" alleging that the September 2020 order modifying Mark's support obligation was "not sustained by sufficient evidence" and was "contrary to law." Lisa also claimed that the district court's order of modification "did not address or make findings of fact concerning [her] allegation of ‘unclean hands’ when the evidence was undisputed that [Mark] had the ability to pay child support and spousal support, yet intentionally elected not to pay support due." Following a hearing held on October 19, the court denied the parties’ respective motions in a journal entry entered on December 7.

Lisa appeals.

ASSIGNMENTS OF ERROR

Lisa claims the district court abused its discretion in modifying Mark's child support and alimony, because Mark's reduced income was his own fault and thus could not be either a material change in circumstances or good cause justifying modification. She also claims the court abused its discretion in modifying Mark's support obligations over her claim of unclean hands based on Mark's failure to pay child support and alimony.

STANDARD OF REVIEW

Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and will be affirmed absent an abuse of discretion by the trial court. Tilson v. Tilson , 307 Neb. 275, 948 N.W.2d 768 (2020).

ANALYSIS

MODIFICATION OF CHILD SUPPORT AND ALIMONY

Lisa claims the district court abused its discretion in reducing Mark's child support to $797 per month and alimony to $750 per month. She claims that "[i]t is undisputed that [Mark] was fired for wrongdoing" in that his dismissal was based upon his failure to properly...