Wibbels v. Wibbels

PAUL C. WIBBELS, APPELLANT, v. CORLIS S. WIBBELS, NOW KNOWN AS CORLIS S. KOZERA, APPELLEE.

No. A-12-203.

NEBRASKA COURT OF APPEALS

Filed January 29, 2013

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Adams County: STEPHEN R. ILLINGWORTH, Judge. Affirmed in part, and in part reversed and vacated.

John A. Kinney and Jill M. Mason, of Kinney Law, P.C., L.L.O., for appellant.

John M. Jensen, of Yeagley Swanson Murray, L.L.C., for appellee.

INBODY, Chief Judge, and SIEVERS and RIEDMANN, Judges.

INBODY, Chief Judge.

I. INTRODUCTION

Paul C. Wibbels appeals the decision of the Adams County District Court modifying his dissolution decree to retroactively increase his child support obligation, contending that the court erred in failing to give him a credit against his child support obligation for college expenses paid, in failing to order the parties to alternate the use of the income tax exemption for the parties' son, in ordering him to pay a percentage of uninsured medical expenses, and in finding him in contempt for claiming the parties' children as an income tax dependency exemption.

II. STATEMENT OF FACTS

Wibbels and Corlis S. Wibbels, now known as Corlis S. Kozera (Kozera), were divorced pursuant to a dissolution decree filed in Adams County District Court in August 1997. Custody of the parties' two minor children, Lauren Wibbels and Garrett Wibbels, was placed with Kozera with Wibbels granted reasonable visitation. Wibbels was ordered to pay $1,600 per month in child support for two children, reducing to $1,100 for one child. Although Wibbels was requiredby the decree to provide medical coverage for the children and to pay 85 percent of work-related daycare expenses, the decree did not include any provisions for uninsured medical expenses, nor did it address the issue of income tax dependency exemptions for the parties' minor children. The decree also provided that Wibbels "shall pay the reasonable and necessary expenses associated with the children obtaining quality college educations."

In June 2010, Kozera filed a complaint to modify the decree, requesting an increase in child support and that Wibbels be ordered to pay a portion of the minor children's uninsured medical expenses. Wibbels filed an answer and counterclaim requesting a reduction in his child support obligation to account for his subsequently born children, requesting that he be awarded specific parenting time, and requesting that the decree be modified to address the award of income tax dependency exemptions.

In April 2011, Kozera filed a motion for an order to show cause why Wibbels should not be held in contempt for claiming both of the parties' children on his 2010 income tax return despite having knowledge that he was not entitled to claim either of the children for income tax dependency purposes. The contempt hearing was held on June 7, and the hearing on the complaint for modification was held on August 18.

1. FINANCIAL CIRCUMSTANCES OF PARTIESAND LAUREN'S COLLEGE EXPENSES

Wibbels is a physician practicing with Hastings Internal Medicine, P.C., earning a gross income of approximately $713,000 per year. He is also involved in Hastings Internal Medicine Building Co., LLC; Hastings Surgical Center, LLC; and Imaging Center of Hastings, LLC. Wibbels has remarried, and he and his wife have three minor children.

In addition to his medical practice, Wibbels invested in an Angus cattle operation, but due to a genetic defect in the cattle herd, he sustained over $2 million in losses on that investment. Wibbels and his wife signed personal guaranties related to the cattle operation, and according to Wibbels' testimony, the loans still totaled over $2.4 million, equating to debt obligations of about $295,000 annually. Additionally, Wibbels testified that he has lump-sum payments related to the debt due in 2014, that are "well over $700,000." Wibbels' 2010 tax return showed agricultural losses of $961,676.

Kozera is employed at a clinic in Kearney, earning approximately $58,000 per year. She has also remarried, and she and her husband have two minor children together. At the time that Kozera filed the complaint to modify in June 2010, the parties' oldest child, Lauren, was still a minor; however, at the time of the hearing in August 2011, Lauren had turned 19. Lauren began attending college in August 2010, and she turned 19 in March 2011.

Since August 2010, Lauren has not been living in Kozera's home. During her first semester of college, Lauren came home about four times, and during her second semester, she came home about the same amount, perhaps slightly more frequently. Kozera testified that although Lauren has been attending college since August 2010, she has continued to provide financial support to Lauren for things such as Lauren's cellular telephone, car insurance, car repairs, gas money, uninsured medical expenses, clothes, food, and dormitory room items.

From August 2010 to March 2011, in addition to paying child support for Lauren while she was attending college, Wibbels has paid more than $20,000 in tuition, books, and room andboard for Lauren to attend college prior to her reaching the age of 19. Wibbels testified that he was requesting a dollar-for-dollar credit to his child support obligation related to Lauren for paying college tuition and room and board for a child who is under the age of 19 and attending college. Wibbels also testified that he paid $2,000, which was half the cost of Lauren's car.

2. INCOME TAX DEPENDENCY EXEMPTIONS

The parties acknowledge that the initial dissolution decree did not address the issue of the income tax dependency exemptions, and the parties likewise acknowledge that Wibbels has claimed the parties' two children as income tax dependency exemptions every year since 1997. Kozera testified that the first year, Wibbels "bullied" her into giving up the dependency exemptions, and that she had not pursued the issue since that time until 2011, when she learned that, as custodial parent, she was entitled to claim the parties' children for tax purposes since the dissolution decree did not provide who was to claim the dependency exemptions. She provided Wibbels with notice that he was not allowed to claim the parties' children for the 2010 tax year via letter dated February 17, 2011. Thereafter, Wibbels filed a motion with the court to allow him to claim one of the dependency exemptions and the matter was set for hearing in April, but no determination was made regarding the issue because Wibbels withdrew his motion. Shortly thereafter, Kozera filed her 2010 tax return and then received notification that the Internal Revenue Service had rejected her return because Wibbels had already filed, claiming the parties' two children as dependents. Kozera testified that she was required to file an extension to have her tax forms reprepared and refiled, and in the preparation of the amended return, she learned that she would receive $5,561 less of a refund without claiming Lauren and Garrett.

Wibbels denied knowing that he did not have the authority to claim the children for dependency exemptions, testifying that he consulted his attorney and accountant for advice. When asked by Kozera's attorney, "You were also informed that you could not, were not, entitled or not authorized by . . . Kozera to claim the dependency exemptions with respect to the children for 2010, weren't you?" Wibbels replied, "I was not informed of that, no. I took the advice of my attorney and the advice of my accountant that I've had for several years. I listened to the wise people that are in my life and I used counsel and did the right thing." Wibbels further stated that there was never any controversy over him claiming the exemptions and that there was never any bullying on his part with respect to the dependency exemptions. Wibbels proposed that the parties alternate the dependency exemptions for their children. Kozera also testified that at a minimum, she would like to receive the exemption for Garrett on an alternating basis.

3. GARRETT'S MEDICAL ISSUES

Kozera testified that Garrett has a medical diagnosis of Asperger's syndrome, which is on the autism spectrum. Garrett is highly functional, is in a regular classroom at his school, performs well academically, but does have an individual education plan at school. Garrett has issues socially and with coordination, and when faced with a new situation, Garrett "just kind of shuts down." According to Kozera, Garrett does not feel comfortable interacting socially with peers or with people with whom he is unfamiliar.

Every year, Kozera takes Garrett to see a doctor in Chicago. This appointment costs between $700 and $1,000, and the travel expenses associated with the appointment cost another$1,000, none of which is covered by insurance. According to Kozera, at the doctor's visit, after taking information and urine, blood, and hair samples from Garrett, the doctor prescribes compounded vitamins and minerals for Garrett which cost approximately $250 to $300 per month. Kozera testified that she has observed a huge improvement in Garrett's behavior since undergoing this treatment. According to Kozera, she has used funds from her tax refund to pay for these expenses because Wibbels has not paid for uninsured medical expenses for their children. Wibbels did not acknowledge that Garrett had Asperger's syndrome, only that he has some social skills issues.

4. DISTRICT COURT ORDER

In December 2011, the district court entered an order setting Wibbels' monthly child support at $3,445, which calculation took into account the subsequent children of the parties. The court rejected Wibbels' argument that application of the guidelines would be unjust or inappropriate because of the amount of debt that Wibbels serviced yearly and the college expenses that h...