Lela L. v. Roger L.

A decree of dissolution was entered on October 2, 1996, by the district court for York County, dissolving the marriage of Lela L. and Roger L. and awarding the parties joint physical and legal custody of their three minor daughters. On March 8, 2002, Lela filed an application to modify the decree, and the district court entered an order on February 26, 2003, placing sole custody of the parties' daughters with Lela and modifying the amount of Roger's child support obligation. Roger appeals. For the reasons stated below, we affirm.

BACKGROUND

Roger and Lela's marriage was dissolved pursuant to the decree of dissolution entered by the district court on October 2, 1996. Roger and Lela have three daughters: Melissa, born February 17, 1985; Julie, born September 21, 1987; and Joni, born January 7, 1990. The court's decree awarded Roger and Lela joint custody of their daughters and granted physical parenting rights as set forth in the parties' settlement agreement. The parties' settlement agreement is not contained in the record before us, and our record indicates that at the time of the present modification proceedings, the parties were not following the parenting time schedule set forth in the settlement agreement. At some point, the parties privately adopted a schedule whereby the girls spent alternating weeks with each parent. The record is not clear as to when this schedule was adopted by the parties. The decree also required Roger to pay child support of $600 per month for three minor children, $475 per month for two minor children, and $375 per month for one minor child.

On March 8, 2002, Lela filed an application to modify the decree. Lela alleged that since the entry of the decree, a change in circumstances had arisen in that the parties' daughters were unhappy at Roger's house and desired to "live full time" with Lela. Lela further alleged that she and Roger were not able to communicate concerning the care of the girls and that it would be in the girls' best interests and "in the [girls'] emotional, social, and physical well-being" to have their custody transferred to her. Lela sought an order transferring full custody of the girls to her, requiring Roger to pay child support, and requiring Roger to pay all or part of the girls' health insurance coverage. Roger filed an answer, wherein he affirmatively alleged that if the district court found the parties' joint custody arrangement to be no longer in the girls' best interests, the court should award full custody of the girls to him.

On November 1 and 8, 2002, trial was held on Lela's application to modify. The record indicates that Lela had remarried after the dissolution of the parties' marriage, but that she had divorced her subsequent husband some time before the modification trial. Lela is an emergency preparedness response specialist with the Nebraska Department of Correctional Services. She works from 8 a.m. to 4:30 p.m., Monday through Friday. Lela provides health and dental insurance coverage for the girls, as available through her employer. Lela submitted her tax returns for 1999 to 2001, together with her most recent pay stub for 2002.

Lela testified that she would be concerned about the girls' emotional welfare if her application for modification were not granted. Lela testified that when the girls are with Roger, they call her, cry, and say that they do not want to be at Roger's house. Lela indicated that the girls appear to be stressed after spending time at Roger's house and that when they return to Lela's house, she has to "get their . . . respect level back up." Lela also indicated that the girls seem sad and depressed when she sees them after they have been away from her house for a while. Lela admitted that the girls have good grades in school and are "pretty well adjusted." When asked what caused her to file the application for modification, Lela indicated that she had been patient in allowing Roger opportunities to spend time and develop his relationship with the girls, but that at some point, the girls began to be distressed and to complain about spending time with Roger. Lela indicated that these issues arose 3 or 4 years before trial and occurred before Roger remarried.

Roger married his current wife, Debra, in June 1999. Debra has one daughter who apparently had resided with Roger and Debra after their marriage, but who had started college and was living in a college dormitory at the time of the modification hearing. Roger is self-employed as a financial consultant and is involved with insurance and investments. Roger's business is a subchapter S corporation. Roger and Debra's joint tax returns for 1999 to 2001 were submitted into evidence, along with Roger's W-2 forms for those years. In addition, the corporate tax returns for those years were submitted. Roger also submitted exhibit 13, which showed his 2002 income to be $27,240, as withdrawn from his business through October 31 in the form of salary and dividends. Roger prepared exhibit 13 based on his business records. Roger indicated that as of October 31, 2002, approximately $2,500 was being retained in business accounts and had not yet been distributed to him.

Roger testified that his income is somewhat dependent upon the stock market and markets in general. Roger indicated that his income for 1999 reflected an unusual "upward spike" because he had "changed companies and had a number of clients that had mature financial products [and] that [he was then] able to better their guarantees and protection as they reinvested them." Roger indicated that his business in 2002 had been "substantially slower" in comparison to 2000 and 2001. Roger attributed his lower income for 2002 to the fact that investors seemed very reluctant to do a lot of business that year. Roger acknowledged that there were 2 months remaining in 2002 at the time of trial, that the markets could change, but that he did not feel he would attain a total income in 2002 equal to the income he attained in the previous 2 years. Roger indicated that he had been involved in financial planning for 15 years and that he monitored the markets, but he testified that he did not expect a drastic change in the markets soon. Roger indicated that he expected it to take a few more years for markets to return to the levels they were at prior to the recent "bounce."

Roger moved his office into his home after his divorce from Lela, so he could be more available to the girls. Roger testified that there are occasions when he has to work past 5 or 5:30 in the evening, that he sometimes travels to western Nebraska, and that he occasionally has to be away from home overnight. Roger testified that such trips do not occur more than two or three times per month and that his work does not normally interfere with his evening family time. Roger testified that he enjoys being able to take the girls to school in the morning, pick them up for lunch on occasion, and pick them up after school and visit about the girls' day. Roger indicated that he spends time with the girls in the evening and that he tries to have meals at home most evenings, as allowed by the girls' admittedly busy schedules. Roger expressed his interest and involvement in the girls' various extracurricular activities. Roger works with Joni on developing her athletic skills and attends the girls' sports, dance, music, and cheerleading events. Roger and Debra have taken the girls on a number of family vacations. Roger testified that he tries to take advantage of the time that the girls spend at his house, that he shows the girls love and affection with hugs and verbal expressions of love and support, and that he feels he has good communication with the girls.

Roger testified that he had enjoyed joint custody of his daughters since December 1995 when the parties were separated prior to their divorce. Roger indicated that the joint custody arrangement worked relatively well initially and that it continued to do so after his marriage to Debra. Roger testified that the girls had seemed quite content with their blended family. Roger indicated, however, that he was able to detect a change in his relationship with the girls about the time Lela's relationship with her subsequent husband ended, approximately 1½ or 2 years prior to the modification trial. Roger indicated that although the girls were stressed by Lela's subsequent divorce, the situation in his house continued to be "pretty good" until the spring of 2002 when the modification action was filed. Roger testified that the girls expressed their love and support for Lela. Roger indicated that in the spring of 2002, Melissa began to "go her own direction" and was less responsive to the rules and expectations in Roger's house. Roger expressed his concerns about Melissa's relationship with her boyfriend, which relationship is discussed in more detail below, and indicated that Melissa became increasingly noncompliant with Roger's household rules and then stopped spending time at Roger's house. The record indicates that Melissa began living exclusively with Lela in April or May 2002. Roger testified that he had indicated to Melissa that she did not have to spend time at his house if she did not want to do so. Melissa testified that her things had been packed up and that Roger "threw her out" of his house. Roger denied throwing Melissa out, indicated that Melissa had been removing things from her room and presumably taking them to Lela's house over time, and stated that he never told Melissa she was no longer welcome in his house. Roger indicated that prior to Melissa's departure from his house, her behavior had been disruptive to his relationships with Julie and Joni.

At the time of trial, Melissa was 17 years old and a senior in high school, Julie was 15 years old and a sophomore, and Joni was 12 years old and in the seventh grade. Melissa is involved in several choirs at school and is very active in ballet. Melissa works as a hostess at a local restaurant. Julie is involved in cheerleading and the school honor society. Joni participates in several sports. The girls' grades are, for the most part, all A's and B's.

All three girls testified, and their testimony generally expressed that they felt they lacked a relationship with Roger and that Roger did not spend enough time with them. The girls all expressed that Roger was not supportive of their extracurricular activities. The girls all expressed that Roger was too strict and less trusting than Lela was in monitoring their personal activities and friendships. The girls all indicated some degree of difficulty in getting along with Debra. Melissa testified as to the competitive nature of her relationship with Debra's daughter, who was approximately the same age as Melissa. A particular complaint of both Melissa and Julie, when spending time in Roger's house, was the lack of respect for their chosen vegetarian diet. Each girl testified as to the difficulty they were experiencing moving between the two households every other week. The girls all expressed a preference to live with Lela. The girls further indicated that they were able to communicate more easily with Lela and that they enjoyed a more loving and trusting relationship with her than they did with Roger.

A significant source of conflict appears to be Melissa's relationship with her boyfriend, a relationship which Lela generally supports and which Roger generally disapproves. Melissa began dating her boyfriend when she was 16 and he was a junior in college. Melissa acknowledged that her relationship with him has been sexual since she turned 17. At the time of trial, Melissa's boyfriend was 22 years old and a senior in college. Melissa took a trip to Florida alone with him approximately 1 week before trial. Lela discussed with Melissa the reasons for and against going on such a trip prior to the trip. Lela testified that she allowed Melissa to go to Florida unsupervised because Melissa's boyfriend "is very responsible; takes good care of [Melissa] and is very respectful to her." Lela indicated that she would not have allowed Melissa to go on the trip if Melissa's boyfriend had shown any signs of untrustworthiness, wildness, being "out of control," or insincerity. Lela caught Melissa and her boyfriend engaging in sexual intercourse in Lela's house in July 2002, and she acknowledged that this act showed irresponsibility and a violation of trust on the part of Melissa's boyfriend. Melissa indicated that she did not discuss the Florida trip with Roger because she was not living in his house at the time.

On February 26, 2003, the district court entered an order ruling on the modification action. The court found that the girls' best interests required that custody be modified from joint custody in both parties to sole custody in Lela, subject to Roger's parenting time. The court awarded Roger parenting time with the girls on the first and third weekends of every month, from 7 p.m. Friday until 7 p.m. Sunday; summer parenting time for two separate 2-week periods; and holiday and special days parenting time as set forth in the court's order.

The court also found that Roger's income reporting and calculation methods had varied over the 4-year period for which evidence was adduced at trial, making it necessary for the court to use an average of the income figures for those 4 years to establish Roger's gross income for the purpose of calculating child support. The court attached a spreadsheet showing the figures it used in arriving at Roger's gross monthly income figure, as well as the worksheet showing its child support calculations. The court found Roger's gross annual income to be $55,960 for 1999; $75,556 for 2000; and $52,664 for 2001. The court estimated Roger's gross annual income for 2002 to be $35,188, based upon Roger's earnings through October of that year. Averaging these income figures, the court found Roger's gross monthly income to be $4,570.17. The court determined that Roger's monthly net income was $3,509.54 and that Lela's monthly net income was $2,226.76. The court ordered Roger to pay modified monthly support of $1,217 for three children, $1,017 for two children, and $697 for one child. The court also ordered Lela to continue to maintain health insurance for the benefit of the children as long as it was available through her employment, and it ordered Roger to reimburse Lela for 61.18 percent of all of the children's nonreimbursed health care expenses incurred after December 31, 2002. Roger subsequently perfected his appeal to this court.

ASSIGNMENTS OF ERROR

Roger asserts, consolidated and restated, that the district court erred in (1) awarding sole custody of the parties' minor daughters to Lela and (2) averaging his last 4 years of income in calculating his child support obligation.

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. Wood v. Wood, 266 Neb. 580, 667 N.W.2d 235 (2003). An abuse of discretion occurs when the trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003).

Interpretation of the Nebraska Child Support Guidelines presents a question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Gase v. Gase, 266 Neb. 975, 671 N.W.2d 223 (2003).

ANALYSIS
Custody.

Roger asserts that the district court erred in awarding sole custody of the parties' minor daughters to Lela. Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances showing that the custodial parent is unfit or that the best interests of the child require such action. Tremain v. Tremain, 264 Neb. 328, 646 N.W.2d 661 (2002). The party seeking modification of child custody bears the burden of showing a change in circumstances. Id. A material change in 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. Id. There is no evidence that either parent is unfit, so we focus our analysis on a consideration of whether there has been a material change of circumstances such that a change from joint custody in both parties to sole custody in Lela is in the girls' best interests.

Neb. Rev. Stat. § 42-364(2) (Reissue 1998) provides:

In determining custody arrangements and the time to be spent with each parent, the court shall consider the best interests of the minor child which shall include, but not be limited to:

(a) The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;

(b) The desires and wishes of the minor child if of an age of comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning;

(c) The general health, welfare, and social behavior of the minor child; and

(d) Credible evidence of abuse inflicted on any family or household member. . . .

In determining a child's best interests under § 42-364, courts may consider factors such as general considerations of moral fitness of the child's parents, including the parents' sexual conduct; respective environments offered by each parent; the emotional relationship between child and parents; the age, sex, and health of the child and parents; the effect on the child as the result of continuing or disrupting an existing relationship; the attitude and stability of each parent's character; parental capacity to provide physical care and satisfy educational needs of the child; the child's preferential desire regarding custody if the child is of sufficient age of comprehension regardless of chronological age, and when such child's preference for custody is based on sound reasons; and the general health, welfare, and social behavior of the child. Davidson v. Davidson, 254 Neb. 357, 576 N.W.2d 779 (1998).

Roger argues that the girls have excelled under the current joint custody arrangement and that the girls' best interests would best be served by allowing the joint custody arrangement to remain intact. We note that the record in this case does not reveal the inability or unwillingness to execute parental duties jointly that, in other cases, has led to the result where one parent or the other must be given primary responsibility for a child's care. See, Robertson v. Robertson, 217 Neb. 786, 350 N.W.2d 576 (1984); Coffey v. Coffey, 11 Neb. App. 788, 661 N.W.2d 327 (2003). Rather, we must analyze the best interests of the children, considering the above-cited factors, to determine whether there has been a material change in circumstances since the entry of the decree in 1996. Clearly, the girls are older and more involved in activities outside of the family units, a natural and anticipated consequence as children move into the teenage years. The girls are healthy, active, and seemingly well adjusted, and they are successful in school. Both parents have provided for the physical care and educational needs of the girls. Such factors do not weigh in favor of finding a material change in circumstances indicating a need to modify the joint custody arrangement.

The decisive factors in this case are the girls' relationship with each parent and their expressed preference to reside with Lela on a primary basis. The evidence shows that the girls perceive their relationship with Lela to be stronger than their relationship with Roger. While there were conflicts in the evidence, the girls testified that Roger does not spend as much time with them as Lela does and that Roger is not as supportive and loving toward them as Lela. The girls expressed being happier while with Lela than while with Roger.

Roger argues that although the girls expressed a clear preference to live with Lela, the girls' motivations do not rise to the level of sound reasoning required by § 42-364(2)(b). While the wishes of a child are not controlling in the determination of custody, if a child is of sufficient age and has expressed an intelligent preference, the child's preference is entitled to consideration. Vogel v. Vogel, 262 Neb. 1030, 637 N.W.2d 611 (2002).

Much of the girls' testimony concerning their preference to reside with Lela appears to surround the different parenting styles of these parents. Roger intimates that the girls prefer Lela because she is more lenient. We do not set forth the specific details of the girls' complaints about Roger's parenting methods, except to note that Roger's methods are clearly stricter and more intrusive than those of Lela (especially from the perspective of his teenage daughters). We can see nothing in the record to indicate that Roger's parenting methods reflect anything other than those of a conscientious parent concerned about the welfare of his children.

Clearly, Melissa, age 17 and a high school senior at the time of the hearing, is of a sufficient age that her preference is entitled to significant consideration. Although Melissa's differences with Roger stem primarily from his seemingly reasonable position with respect to Melissa's boyfriend, we can see no benefit to continuing the joint custody relationship between Melissa and Roger. While it is a much closer call with regard to Julie and Joni, we find their testimony regarding their reasons for desiring to live primarily with Lela to be persuasive. Of particular importance is the apparent stress the girls experience because of the weekly transfer between Roger and Lela's houses. This arrangement does not always lend itself to the type of stability that is needed in the lives of teenage children. The girls clearly prefer the loving, supportive environment that they perceive is provided in Lela's house. We cannot say that the court abused its discretion in considering and giving great weight to the preference of the girls in finding that a material change of circumstances has occurred and in awarding Lela sole custody.

We commend Roger for his desire to continue a relationship with his daughters, and the district court's award of parenting time should allow him to do so. We strongly urge both Lela and Roger to foster a positive relationship between the girls and the other parent, which we believe will greatly benefit the girls.

Child Support.

Roger asserts that the district court erred in averaging his last 4 years of income in calculating his child support obligation. We note that neither Roger nor Lela dispute the income figures used by the district court for Roger for the years in question. The court determined Roger's gross annual income to be $55,960 for 1999; $75,556 for 2000; $52,664 for 2001; and, as projected, $35,188 for 2002.

With regard to income averaging, the fifth footnote (footnote 5) to worksheet 1 of the Nebraska Child Support Guidelines states, "In the event of substantial fluctuations of annual earnings of either party during the immediate past 3 years, the income may be averaged to determine the percent contribution of each parent as shown in item 6. The calculation of the average income shall be attached to this worksheet." Roger acknowledges that income averaging may be used in the event of substantial fluctuations of annual earnings, but he argues that "the substantial decrease in his income for 2002 is not what should be considered part of a normal fluctuation, but rather, was attributable to a marked and very real financial setback." Brief for appellant at 30. Roger argues that the decrease in his income for 2002 should be viewed as a material change in circumstances relating to his income and that his child support obligation should be calculated based upon his gross annual income of $35,188 for 2002, as projected by the trial court.

In considering Roger's arguments, we direct our attention to Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002), and State on behalf of Hannon v. Rosenberg, 11 Neb. App. 518, 654 N.W.2d 752 (2002). In Peter v. Peter, supra, the Nebraska Supreme Court was presented with its first opportunity to apply the specific language of footnote 5. The lower court had utilized income averaging as a method appropriate for determining whether there was a material change in circumstances that would require a modification in child support, due to what it found to be fluctuations in the father's annual income. On appeal, the Supreme Court found that the evidence provided by the father revealed a clear pattern of consistently increasing income. The Supreme Court determined that it was not in the best interests of the children to allow income averaging when the father's income was consistently increasing. The Supreme Court noted the proposition that in calculating child support, as a general matter, the parties' current earnings are to be used. Peter v. Peter, supra. The Supreme Court found no reason to deviate from this principle under its de novo review and determined that on remand, the lower court should use the parties' current earnings in calculating the father's child support obligation. Id. Compare Gase v. Gase, 266 Neb. 975, 671 N.W.2d 223 (2003) (trial court directed on remand to use income averaging because wife's income experienced significant fluctuations during 3 years prior to hearing).

In State on behalf of Hannon v. Rosenberg, supra, this court was faced with a steady decline in the father's income, as opposed to a steady increase, but found the rationale of Peter v. Peter equally applicable. The father's income had shown a steady decrease for 5 years as opposed to the "substantial fluctuations" required by footnote 5. The father had also received a pay cut that had continued for approximately 16 months, and there was no indication that his pay would increase in the future. This court stated that "[w]hile using income averaging to increase support is generally beneficial to minor children, this method should only be used when the facts support it." State on behalf of Hannon v. Rosenberg, 11 Neb. App. at 524, 654 N.W.2d at 758. We concluded that the facts of that case did not support the use of income averaging and that the district court erred in using the father's average income for the 3 years prior to trial in calculating child support. Id.

Based upon the facts of the instant case, we conclude that the use of income averaging was appropriate. Roger's income has fluctuated, up and down over the last 4 years, due in part to the nature of his business and of the economy and also in part to his methods of calculating and reporting his income. This case is not a situation where the noncustodial parent has endured a steadily decreasing income, such as in State on behalf of Hannon v. Rosenberg, supra. Roger acknowledges that his income may increase again in the future, depending on the economy. Finally, using only Roger's projected 2002 income to calculate his child support obligation is not in the best interests of the minor children. The paramount concern and question in determining child support, whether in the initial marital dissolution action or in the proceedings for modification of decree, is the best interests of the child. Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002).

We conclude that the district court did not err in calculating Roger's child support obligation based upon an average of his last 3 full years of income, 1999 to 2001, and his projected income for 2002.

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Click the case caption above for the full text
of the Court's opinion.

We conclude that the district court did not abuse its discretion in finding that a material change of circumstances had occurred and in awarding Lela sole custody of the parties' children. We further conclude that the district court did not err in calculating Roger's child support obligation based upon an average of his last 3 full years of income, 1999 to 2001, and his projected income for 2002.

Affirmed in favor of Defendent for $1,217.

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Reported by L. Hargraves