Knicely v. Knicely, No. A-07-922 (Neb. App. 3/25/2008)

Page 1

ANDREW JAMES KNICELY, APPELLEE, v. CONSTANCE GENEVIEVE KNICELY, APPELLANT.

No. A-07-922.

Court of Appeals of Nebraska.

Filed March 25, 2008.

SIEVERS, MOORE, and CASSEL, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

CASSEL, Judge.

INTRODUCTION

Constance Genevieve Knicely appeals from an order of the district court, which modified the dissolution decree by increasing Andrew James Knicely's visitation with the parties' minor children and calculating child support using Andrew's lesser income from new employment. Upon our de novo review, we find no abuse of discretion by the district court in its modification of visitation or use of Andrew's income at the time of trial. However, we modify the court's child support calculation by using the revised child support worksheet which became effective shortly before the trial.

BACKGROUND

In an October 1, 2002, decree, the district court dissolved the parties' marriage. The court awarded Constance custody of the parties' two minor children, subject to Andrew's specific rights of visitation. The decree set forth Andrew's visitation as follows: (1) overnight visitation on his alternating "weekends" off work from 5 p.m. on the evening prior to his days off until 8 p.m. on his last day off work; (2) one evening during the week that he does not have the children during his days off work, beginning at the time the children are dismissed from school and ending at 8 p.m.; (3) alternating holidays; and (4) summer visitation of 6 weeks. The court ordered Andrew to pay child support of $800 per month for the two children and stated, "This child support is a deviation from the guidelines in the amount of $58.00, but is justified by the disparity in income and the agreement of the parties." At that time, Andrew earned $2,630.33 per month, and Constance earned $1,382.50 per month. The court ordered Constance to continue to maintain health insurance for the children and ordered Andrew to continue to maintain dental/orthodontic insurance for the children.

On November 16, 2006, Andrew filed a complaint to modify the visitation set forth in the decree. He alleged that a material change in circumstances had occurred because the visitation schedule contained in the decree coincided with his work schedule at that time but he had since obtained other employment which required him to work 7 consecutive days and then have 7 consecutive days off work. Constance filed a responsive pleading, denying a material change in circumstances warranting modification of visitation. In her counterclaim, she sought modification of child support because Andrew's income increased considerably. She also alleged that her health insurance premiums for the children had increased and that she should receive credit for the amount the health insurance cost her when child support is recalculated.

The court conducted a trial on July 6, 2007. At that time, the children were ages 16 and 12. Only the parties testified.

Constance testified that she was still working for the same employer as at the time of the divorce and that she earned $12.75 per hour, working an average of 74 hours a biweekly pay period. She testified that the cost of health and dental insurance for the children was $564.44 per month.

Andrew testified that he had been employed by Black Hills Gold Transportation for approximately 1 month. He works every Thursday through Sunday from approximately 5 a.m. until sometime between 5 and 7 p.m. He is paid 35 cents per mile and drives approximately 500 miles a day. Andrew anticipated that a regular paycheck would be approximately $1,200 biweekly.

Andrew's prior employment was with H & P Drilling, where he began working in October 2003. He worked south of Jackson, Wyoming, and his drive to the oil rig averaged about 6 hours. While on the job, he lived in a camp. He worked 14 days and then had 14 days off, but sometimes he had to attend safety meetings on his days off work. He testified that he left the job because he did not like the travel, the job was very dangerous, and he had been hurt on the rig about six times. He also disliked not being able to see his children or attend their activities. His adjusted gross income while working for H & P Drilling was $77,023 in 2005 and $80,459 in 2006.

Andrew testified that he had problems coordinating his visitation from the decree because it was not a set schedule and sometimes he did not get to see the children until between 8 and 11 p.m. He also testified that as the children grew older, they were involved in more activities and had their own agendas which made visitation difficult. Andrew felt that a set visitation schedule would be advantageous to the children because they would know when they were going to Andrew's house and Andrew could make plans. He wanted to have visitation with them from 8 p.m. on Monday until 8 p.m. on Wednesday. He also wished to have one or two nights of visitation on his weeks off. Although he was awarded 6 weeks of summer visitation in the decree, Andrew testified that he had not been able to exercise it "[w]ith the week on, week off." Constance testified that she had been flexible with visitation and allowed the children to go with Andrew when he was home even if it was Constance's holiday to spend with the children. Constance felt that Andrew's requested visitation was "too much back and forth" and that the children needed routine. She further testified that Andrew performed other jobs on some of his days off and that he did not attend some of the children's activities. Constance felt that visitation should be left to the decision of the children but she had no objection to Andrew's having visitation every other weekend.

Andrew testified that he started college funds for the children, that he had continued to contribute to the accounts since June 2005, and that both accounts were worth about $4,000. Exhibits for the quarter ending June 30, 2005, show that one account had a balance of $2,263.61 and that the other account's balance was $2,517.73. He testified that income from his cattle goes into the college funds.

On August 15, 2007, the district court entered an order modifying the decree. The court found a material change in circumstances. The court recognized Constance's contention that child support should be based upon Andrew's employment with H & P Drilling, but accepted Andrew's testimony that he had been injured six times on the rigs, that the risk of injury remained high, and that Andrew was concerned about his safety and surviving to raise the children. The court stated:

The statements of [Andrew] about the risks of working in the oil fields are factually based. One of the reasons work in the oil fields pays as well as it does is the high risk of injury. [Andrew's] current employment is similar in requirements and pay to the employment he had at the time of the original Decree. His pay shows an increase from his original pay.

The court examined the equities of the case and noted that at the time of the initial decree, Andrew accepted an upward deviation of his child support which amounted to nearly $700 per year. The court further observed that Andrew had invested about $4,700 in college plans for the children; that he had regularly paid his child support; that he had paid his share of medical, dental, and optical costs for the children; that he had maintained his relationship with the children; and that he had helped financially with the needs of the children beyond the requirements of the decree. The court therefore found that Andrew's current income of $3,033.33 per month was the equitable income to use in calculating future child support. The court ordered Andrew to maintain the college plans for the children at no less than the current value for use only for the education of the individual child named on the account, stating, "This assures that the children will benefit directly from the increased income of the father while he was working in the oil fields."

The court ordered Andrew to pay $848 per month for child support for the two children, which would be lowered to $582 per month when only one child was the subject of the support order. The court directed Constance to continue to provide health insurance for the children as long as it was available at a reasonable cost through her employment and ordered her to pay the first $480 of uncovered medical, dental, and optical expenses. After the first $480 of such expenses, Andrew was to pay 66 percent and Constance 34 percent of those uncovered expenses. The court modified Andrew's visitation by awarding him visitation with the children during the first 3 weeks of each month from 8 p.m. Sunday to 8 p.m. Wednesday. During the fourth week of the month, Andrew has visitation from 8 p.m. Monday to 8 p.m. Tuesday. He has summer visitation for 6 consecutive weeks and alternating holiday visitation as set out in the decree.

Constance timely appeals.

ASSIGNMENTS OF ERROR

Constance alleges that the court abused its discretion in increasing Andrew's visitation without finding a material change in circumstances or making any best interests findings. She further alleges that the court erred in calculating child support using Andrew's new income level and in requiring Constance to be the only party responsible for the children's health insurance.

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 which will be affirmed absent an abuse of discretion by the trial court. Simpson v. Simpson, 275 Neb. 152, ___ N.W.2d ___ (2008). 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.

When evidence is in conflict, an appellate court considers, and may give weight to, the fact that...