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Nebraska Appellate Caselaw
Child Support Guidelines:
Nebraska's Child Support Guidelines
EVERY child support order, whether new or a modification of an existing order, MUST contain a child support guidelines calculation.
Ebirim v. Ebirim, 9 Neb. App. 740; Filed November 7, 2000. No. A-99-1348
Holding: Of more import, we have held that “[p]aragraph C of the Nebraska Child Support Guidelines specifically mandates that ‘[a]ll orders for child support, including modifications, must include a basic income and support calculation worksheet.’ (Emphasis supplied.)” Laubscher v. Laubscher, 8 Neb. App. 648, 651, 599 N.W.2d 853, 856 (1999). See, e.g., Baratta v. Baratta, 245 Neb. 103, 511 N.W.2d 104 (1994); State on behalf of Elsasser v. Fox, 7 Neb. App. 667, 584 N.W.2d 832 (1998); Becker v. Becker, 6 Neb. App. 277, 573 N.W.2d 485 (1997).
Holding: We further hold that an income and support calculation worksheet must be attached to the resulting order, as required by the guidelines and case law.
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Guidelines are to be used absent good reason shown not to:
State v. Porter, 259 Neb. 366, ____ N.W.2d ____ (2000)
Holding: Nebraska child support guidelines are applied as a rebuttable presumption, and all orders for child support shall be established in accordance with the provisions of the guidelines unless the court finds that one or both of the parties have produced evidence to rebut the presumption that the guidelines should be applied.
also see...
Korten v. Haller, 1 NCA 1449 (1992)
Citing Knippelmier v. Knippelmier, 238 Neb 428, 470 NW2d 798 (1991)
Holding: In general, child support payments should be set according to the guidelines established by the Nebraska Supreme Court.
Holding: In appropriate circumstances a trial court may consider a NCP's earning capacity, and not their income, in setting child support when to do otherwise would place an unfair burden on the custodial parent.
But see....
Guidelines not written in stone:
Czaplewski v. Czaplewski, 240 Neb. 629, 483 N.W. 2d 751 (1992)
Holding: A trial court does not satisfy his duty to equitably determine child support by blindly following suggested guidelines. Nebraska Child Support Guidelines are, by their very nature, just that, simply guidelines.
Holding: Modification of a child support award is not justified unless the applicant proves that a material change in circumstances has occurred since the entry of the decree or subsequent modification.
Holding: In keeping with the spirit of the guidelines, the trial court was correct in factoring into the support calculations the NCP's afterborn children.
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Joint vs. Sole Custody:
Pool v. Pool, 9 Neb. App. 453, 613 N.W.2d 819 (2000)
Holding: Where a party proves that joint physical child custody exists, it is error for a trial court to refuse to apply a joint custody calculation to determine child support. The converse is equally true. (citing Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999))
This case offers a short discussion of the differences between "typical" sole custody and true joint custody arrangements.
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Joint Physical Custody vs. Joint Legal Custody:
Heesacker v. Heesacker, 262 Neb. 179, Filed July 13, 2001. No. S-00-309
Holding: The determination that parents have joint physical custody for the purpose of calculating child support obligations under the joint custody worksheet is not based on simply the percentage of overnight visits a noncustodial parent has with his or her children. Key: The district court in this case found that there was no evidence that the parent with whom the child lived about 35-40% of the time was paying for an equal amount of the child's day-to-day expenses.
Holding: Joint physical custody means “the child lives day in and out with both parents on a rotating basis. Numerous ‘parenting times’ with a child do not constitute joint physical custody [citing Pascale v. Pascale, 140 N.J. 583, 660 A.2d 485, New Jersy Supreme Court (1995)].
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What is "income" for purposes of the guidelines?
Rhoades v. Rhoades, 258 Neb 721, 605 N.W.2d 454, (2000)
Holding: Income for the purpose of child support is not necessarily synonymous with taxable income.
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Earned Income Credit is a Means Tested Public Assistance Benefit
Riggs v. Riggs, 261 Neb. 344; 622 N.W.2d 861 (2001)
Holding: we hold that a “means-tested public assistance benefit” is a benefit that includes a payment in money, or by assistance in kind, to, or for the benefit of, a person where (1) the eligibility for the benefit or (2) the amount of the benefit is determined on the basis of the income or resources of the recipient, such that the benefit decreases as the recipient’s income increases. Applying this holding to the instant case, we determine that the EIC is a means-tested public assistance benefit under paragraph D of the Guidelines. .
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Social Security Disability/Dependency Benefits are income attributable to the disabled parent, and not means tested public assistance
Hartman v. Hartman, 261 Neb. 359; Filed March 9, 2001. No. S-99-1405
Holding: Social Security dependency benefits received on behalf of a child as a result of a custodial parent’s disability should be included in the monthly net income of the parent whose disability resulted in the payment of dependency benefits.
Note: Contrast between the Social Security disability insurance program, which is based on prior earnings of the recipient, and the supplemental security income program, which is based on financial need of the recipient.
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Student Loans
Sears v. Larson, 259 Neb. 760 (Filed June 16, 2000. No. S-99-450)
Holding: Paragraph C(5) of the guidelines allows a trial court in an appropriate case to deviate from the guidelines to allow a deduction from income based on a parent’s student loan payment.
Holding: It is the child support obligor's burden to show that an application of the guidelines without a deviation for his student loan payment would be unjust or inappropriate.
Holding: Where the record lacks details of the specific nature and amount of the loans, we cannot find an abuse of discretion on the part of the district court in refusing to consider the child support obligor's student loans in its child support calculations.
Key>> Focus on the total amount of the loans, the terms of those loans, the amount attributable to principal and interest, and the amount of the loans that were used for education, child support, or other expenditures.
.Also see State on behalf of Elsasser v. Fox, 7 Neb. App. 667, 584 N.W.2d 832 (1998)
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"Depreciation" broadly interpreted for purposes of child support guidelines
Gammel v. Gammel, 259 Neb. 738, (Filed June 16, 2000. No. S-99-307)
Holding: We hold that for purposes of paragraph D of the Nebraska Child Support Guidelines, a deduction pursuant to Section 179 [of the Internal revenue Code] is “depreciation” which should be added back to income or loss in calculating a self-employed parent’s average monthly income. A deduction pursuant to Section 179, sometimes referred to as a “depreciation deduction,” although technically not “depreciation” under the Internal Revenue Code, serves the same tax purpose as depreciation. Both allow a taxpayer to recover the cost of depreciable property, or, in other words, to take a deduction in calculating taxable income to reflect the cost of using such property. Because a deduction elected under Section 179 has the same effect as depreciation, it should be treated as depreciation under paragraph D of the Nebraska Child Support Guidelines.
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The Self Employed:
Rhoades v. Rhoades, 258 Neb 721, 605 N.W.2d 454, (2000)
Holding: As a general rule, the income of a self-employed person can be determined from his or her income tax return. However, income for the purpose of child support is not necessarily synonymous with taxable income.
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Guidelines Deviations: General Principles:
Brooks v. Brooks, 261 Neb. 289 Filed February 23, 2001. No. S-99-777
Holding: The Nebraska Child Support Guidelines offer flexibility and guidance, with the understanding that not every child support scenario will fit neatly into the calculation structure.
Holding: A court may deviate from the Nebraska Child Support Guidelines where one or both parties have provided sufficient evidence to rebut the presumption that the guidelines should be applied.
Holding: Under the Nebraska Child Support Guidelines, a deviation is permissible whenever application of the guidelines in an individual case would be unjust or inappropriate. Deviations from the guidelines also must take into account the best interests of the child.
Guidelines Deviations/ Material change in circumstances
Peterson v. Peterson, 239 Neb. 113, 474 N.W.2d 862 (1991)
Holding: A material change of circumstances means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently.
also see...
Deviations from the Guidelines: What is required in the order
Brooks v. Brooks, 261 Neb. 289 Filed February 23, 2001. No. S-99-777
Rhoades v. Rhoades, 258 Neb 721, 605 N.W.2d 454, (2000)
Holding: If a child support order deviates from the guidelines, the trial court must state the reasons for the deviation in the decree or order, or alternatively, it must complete worksheet 5 and file it in the court file. In addition, paragraph C of the guidelines requires that the decree or order state the amount of support that would have been required under the guidelines absent the deviation.
Holding: A trial court cannot simply decide that it would be "appropriate" to allow a deduction from gross income for an expense without first finding on the record that not allowing the deduction would result in an "unjust or inappropriate" child support award.
also see...
Deviations for voluntary reduction of income/earning capacity is key
Betz v. Betz, 254 Neb. 341, 575 N.W. 2d 406 (1998)
Smith-Helstrom v. Yonker, 249 Neb 449, 544 N.W.2d 93 (1995)
Sabatka v. Sabatka, 245 Neb. 109, 511 N.W.2d 107 (1994)
Muller v. Muller, 3 Neb. App. 159, 524 N.W.2d 78 (1994)
Holding: Earning capacity of each parent, and not merely the actual income, is to be considered in determining the amount of child support to be paid by a parent.
Second families/ Afterborn children:
Brooks v. Brooks, 261 Neb. 289 Filed February 23, 2001. No. S-99-777
Holding: The party requesting a deviation from the Nebraska Child Support Guidelines based upon an obligation to support offspring of a subsequent relationship bears the burden of providing evidence regarding the obligation, including the income of the other parent of the child or children of the subsequent relationship.
Holding: We conclude that there is no precise mathematical formula applicable to situations where a court deviates from the guidelines when children from subsequent relationships are involved. Subsequent familial relationships vary widely from case to case. When a deviation from the guidelines is appropriate, the trial court should consider both parents’ support obligations to all children involved in the relationships. In considering the obligation to those subsequent children, the trial court should take into consideration the income of the other parent of these children as well as any other equitable considerations.
Holding: We hold that the specific formula for making such calculations is left to the discretion of the trial court, as long as the basic principle that both families are treated as fairly as possible is adhered to. We again emphasize that the trial court shall include the appropriate worksheets with its order and provide in its order the amount of support that would have been required under the guidelines absent a deviation. We further emphasize the importance of providing the methods used when calculating a deviation by showing this either on the worksheets or in the order.
Holding: Under certain circumstances, it may be appropriate for a trial court to consider subsequently born children of a party when determining child support. This determination is entrusted to the discretion of the trial court
Holding: It is not an abuse of discretion to refuse to consider support for subsequently born children when the proposed deviation from the Nebraska Child Support Guidelines would provide more support for the current family than for the previous one.
also see...
Prochaska v. Prochaska, 6 Neb. App. 302, 573 N.W.2d 777 (1998).
Holding: Worksheet 5 deduction for "children of 1 of the parties but not previously ordered" exists to have the same effect as deduction contained on worksheet 1 designated as "child support previously ordered for other children." When calculating a modification of support under guidelines for a first family after the NCP has remarried and has children by the new marriage, the support of each family should be determined after a deduction for the support of the other family.
Holding: Child support payments should be set according to the guidelines, which establish a presumptive share of each parents' support obligation. However, the trial court may deviate from the guidelines whenever the application of the guidelines would be unjust or inappropriate. (And if done, the trial court had better make a specific finding on the record that application of the guidelines "as is" would be "unjust or inappropriate.")
also see...
State on behalf of S.M. v. Oglesby, 244 Neb. 880, 510 N.W.2d 53 (1994)
Holding: If the trial court, in setting child support, gives no consideration at all to children of a later marriage, it abused its discretion.