Portland v. Portland

Page 605

558 N.W.2d 605

5 Neb.App. 364

Lorraine M. PORTLAND, Appellee, v. Bryan PORTLAND, Appellant.

No. A-95-788.

Court of Appeals of Nebraska.

Jan. 28, 1997.

Syllabus by the Court

1. Modification of Decree: Alimony: Appeal and Error. The modification of an alimony award is entrusted to the discretion of the trial court and will be reviewed de novo on the record for abuse of discretion.

2. Trial: Words and Phrases. Abuse of judicial discretion exists when the reasons or rulings of a trial judge are clearly untenable such as to unfairly deprive a litigant of a substantial right and a just result.

3. Modification of Decree. One may in good faith make an occupational change even though the change may reduce one's ability to meet financial obligations.

4. Modification of Decree: Alimony: Good Cause: Words and Phrases. An award of alimony may be modified or revoked only for good cause shown. Good cause means a material and substantial change of circumstances and depends upon the facts of each case.

5. Modification of Decree. Any change in circumstances within the contemplation of the parties at the time of the decree does not justify a change or modification of the original order.

6. Modification of Decree: Alimony. An increase in a party's income is a circumstance that may be considered in determining whether an alimony award should be modified.

Michael P. Dowd, of Dowd & Dowd, Omaha, for appellant.

Gary B. Randall, P.C., and Mary Rauth Winner, P.C., of Marks Clare & Richards, Omaha, for appellee.

HANNON and MUES, JJ., and NORTON, District Judge, Retired.

NORTON, District Judge, Retired.

Bryan Portland appeals from an order of the district court denying Bryan's application for modification of his divorce decree and granting the motion by Bryan's ex-wife, Lorraine M. Portland, for substitution of collateral. In his application for modification, Bryan requested that the court reduce the alimony Bryan is currently paying to Lorraine. During the pendency of Bryan's application for modification, Lorraine filed a motion for substitution of collateral. The court heard Lorraine's motion to substitute collateral and Bryan's application for modification at the same time; the court denied Bryan's application for modification, while granting Lorraine's motion for substitution of collateral. For reasons set forth fully below, we affirm the district court's decision denying Bryan's request for modification of alimony, but reverse the court's decision granting Lorraine's motion for substitution of collateral.

STATEMENT OF FACTS

Lorraine M. and Bryan Portland were divorced by decree on March 29, 1993. During their marriage, Lorraine and Bryan had three children. When the original decree was entered, one child, Melissa, born August 1, 1977, remained a minor, and by stipulation, Bryan received custody of Melissa. In the original decree, Lorraine was ordered to pay child support to Bryan of $150 per month and Bryan was ordered to pay Lorraine alimony for a period of 120 months as follows: $1,000 per month for the first 3 months, $750 per month for the next 57 months, and $500 per month for the remaining 60 months. The court ordered that the alimony payments cease upon the death of either party or the remarriage of Lorraine.

In determining the amount of alimony, the court considered the net income of both parties. The court considered evidence Bryan presented regarding the economic downturn affecting Bryan's company, a downturn likely to adversely affect Bryan's income. Taking the economic downturn into account, the court found that Bryan would reasonably be able to make $5,000 per month beginning May 1, 1993.

In the decree, the court split Lorraine and Bryan's marital assets. One of the assets the court divided was Bryan's performance unit share plan at Information Products, Inc. (IP). The share plan is essentially a deferred compensation plan, which was valued at $86,000 at the time of the decree. The decree awarded 65 percent of the share plan to Bryan and 35 percent to Lorraine. Lorraine's 35-percent share was worth approximately $30,000 when the district court entered the decree.

In August 1993, Melissa began living with Lorraine, and Lorraine filed an application to modify the divorce decree on September 15, 1993. Upon hearing the application, the court granted Lorraine custody of Melissa, terminated Lorraine's child support obligation effective August 1, 1993, and ordered Bryan to pay Lorraine child support in the amount of $500 per month beginning October 1, 1993. The court allowed Bryan to pay his October and November payments in $250 increments beginning in January 1994. Bryan paid Lorraine child support and alimony for the month of December 1993 at the time of the decree's modification.

On October 31, 1994, Bryan filed an application to modify the decree, alleging that a substantial change in circumstances had occurred and that he was now unable to meet his child support and alimony obligations. Bryan requested a temporary reduction of alimony.

On March 17, 1995, Lorraine filed a motion for substitution of collateral and notice of hearing, alleging that Bryan had put at risk her 35-percent share of Bryan's share plan awarded to her in the decree. IP is withholding the money in Bryan's share plan because Bryan left IP and joined a competitor, Network Concepts Inc. (NC), in direct violation of Bryan's employment agreement with IP.

On May 23, 1995, the district court for Douglas County heard both Bryan's application to modify the decree and Lorraine's motion for substitution of collateral. The court found that Bryan failed to show good cause for a modification and denied Bryan a reduction in alimony. Further, the court granted Lorraine's motion for substitution of collateral because Bryan had placed at risk Lorraine's 35-percent share of his share plan. The court ordered Bryan to substitute collateral in the amount of $30,000 on or before August 1, 1995.

ASSIGNMENTS OF ERROR

Bryan argues that the district court erred in (1) finding that Bryan failed to show good cause for modification of the decree, specifically, that Bryan failed to show a material change in his income and his ability to earn a similar income within the current year, and (2) sustaining Lorraine's motion for substitution of collateral, which punishes Bryan for switching employment in good faith, a change which he felt was necessary to preserve his vocational and economic well-being.

STANDARD OF REVIEW

The modification of an alimony award is entrusted to the discretion of the trial court and will be reviewed de novo on the record for abuse of discretion. Pendleton v. Pendleton, 247 Neb. 66, 525 N.W.2d 22 (1994); Rood v. Rood, 4 Neb.App. 455, 545 N.W.2d 138 (1996). Abuse of judicial discretion exists when the reasons or rulings of a trial judge are clearly untenable such as to unfairly deprive a litigant of a substantial right and a just result. Ainslie v. Ainslie, 249 Neb. 656, 545 N.W.2d 90 (1996); Mathis v. Mathis, 4 Neb.App. 307, 542 N.W.2d 711 (1996).

ANALYSIS

After reviewing the evidence, we conclude that regardless of whether the decrease in Bryan's income was a material and substantial change, Bryan's current decrease in income was clearly within the contemplation of the parties at the time of the original decree. Neither the decrease in Bryan's income nor the increase in Lorraine's income justifies a decrease in alimony. Additionally, we find that the district court improperly ordered Bryan to substitute collateral in the amount of $30,000.

Material and Substantial Change.

One may in good faith make an occupational change even though the change may reduce one's ability to meet financial obligations. Sabatka v. Sabatka, 245 Neb. 109, 511 N.W.2d 107 (1994). Bryan cites this proposition and argues that his decision to leave IP and take a job at NC was in good faith and that thus, the district court should have reduced the alimony he pays to Lorraine, because he is no longer financially able to meet his obligations. We disagree.

We do not dispute Bryan's contention that he made the move to NC in good faith, but, rather, we point out that an award of alimony may be modified or revoked only for good cause shown. Good cause means a material and substantial change of circumstances and depends upon the facts of each case. Neb.Rev.Stat. § 42-365 (Reissue 1993); Creager v. Creager, 219 Neb. 760, 366 N.W.2d 414 (1985). Any change in circumstances within the contemplation of the parties at the time of the decree does not justify a change or modification of the original order. Schmitt v. Schmitt, 239 Neb. 632, 477 N.W.2d 563 (1991); Cooper v. Cooper, 219 Neb. 64, 361 N.W.2d 202 (1985).

Bryan argues that he is not making the $5,000 per month the court reasonably assumed and that the decrease in his income constitutes a material and substantial change justifying a decrease in alimony. The record shows that Bryan's income was as follows: In 1992, Bryan made $89,492; in 1993, $111,934.36; and in 1994, Bryan's total income was $56,858.82--$19,976.82 from IP and $36,882 from NC. Thus, for 1994, the year in which Bryan filed to modify the decree, Bryan grossed approximately $4,700 per month. We do not consider this a material and substantial change.

Determining whether the decrease in Bryan's 1995 income was a material and substantial change is more difficult. For the first 3 1/2 months of 1995, Bryan testified that he made approximately $14,500. For the next few months, Bryan testified that he would receive a gross salary of approximately $3,000 per month. Thomas Smith, chief operating officer of NC, testified by a telephonic deposition that after August 1995, Bryan would no longer receive $3,000 per month, but, rather, Bryan's only income from NC would come entirely from commissions. Smith testified that Bryan would not realize any income until Bryan paid NC back the $27,531.91 he owes them. Bryan owes NC this money because...