Wibbels v. Wibbels - Nebraska Judicial Branch

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
WIBBELS V. WIBBELS
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).
PAUL C. WIBBELS, APPELLANT,
V.
CORLIS S. WIBBELS, NOW KNOWN AS CORLIS S. KOZERA, APPELLEE.
Filed January 29, 2013.
No. A-12-203.
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 required
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y 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 PARTIES
AND 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 and
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oard 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
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$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 he pays for Lauren, and will be paying for the subsequent children he supports.
The court noted that in 2009 and 2010, Wibbels received tax refunds of $166,959 and $217,118,
respectively, and that those refunds were a result of his losses in the cattle business and would
“go a long way in servicing the debt.” Thus, after considering the aforementioned factors, the
district court determined that Wibbels’ monthly child support obligation of $3,445 was fair and
equitable.
Further, the district court found that although Kozera requested that Wibbels’ increased
child support obligation be retroactive to July 1, 2010, which was the first of the month after she
filed the complaint to modify, the more equitable date to retroactively order support was April 2,
2011, because that was the first of the month after which Lauren emancipated and Wibbels had
paid approximately $20,000 for Lauren’s college expenses during the 2010-11 school year. Thus,
the court ordered Wibbels’ new child support obligation retroactive to April 2, 2011.
Additionally, the court ordered that effective with the 2011 and subsequent tax years,
Wibbels was allowed to claim Lauren as an exemption pursuant to Department of Treasury
Publication 501, and that Kozera shall receive the exemption for Garrett as the custodial parent
for 2011 and subsequent years.
With regard to the contempt action, the district court made the following factual findings:
that Kozera had allowed Wibbels to take the tax exemptions from 1997 until 2009; however, in
2010, when she discovered that as custodial parent, she could take the exemptions, she notified
Wibbels by letter dated February 17, 2011, that he was no longer authorized to claim the parties’
children as dependents for income tax purposes. Kozera filed her 2010 tax return claiming the
minor children as dependents, but her tax return was rejected because Wibbels had previously
filed his 2010 tax return claiming the parties’ children as dependents. The rejection of Kozera’s
tax return cost her $5,561 in refunds. The court found that in February 2011, Wibbels was put on
notice via letter that he was no longer authorized to claim the parties’ children as dependents for
income tax purposes, that Wibbels signed his 2010 tax return on March 29, 2011, and that
Wibbels had filed a request for the court to address the 2010 income tax return but later
withdrew that request on April 14, 2011. Based on these facts and citing the “clear rule” that
absent an agreement between the parties or a court order, the custodial parent gets the exemption,
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the court found Wibbels in contempt because he was put on notice before filing his return and
held that Wibbels could purge his contempt by paying $5,561 to Kozera. The court “entered
judgment” in that amount. This amount was reduced by $1,500 in an order following a motion
for new trial/motion to alter or amend judgment filed by Wibbels to reflect the fact that Kozera
claimed an education credit on her tax return summary to which she would not be entitled, which
entry resulted in an overestimation of her estimated tax refund. Thus, the reduced amount of the
judgment was $4,061. Also included in the order on Wibbels’ motion for new trial was a
provision that Wibbels was responsible for 92 percent of uninsured medical expenses for the
parties’ minor child(ren) after Kozera had paid the first $480 per child per year.
III. ASSIGNMENTS OF ERROR
Wibbels contends that the district court erred in finding him in contempt of court for
claiming the parties’ children as an income tax dependency exemption. He contends that the
district court erred in its modification of the dissolution decree by (a) failing to give him a credit
against his child support obligation for college expenses paid; (b) increasing his monthly child
support obligation to $3,445; (c) ordering the increase in child support retroactive to April 1,
2011; (d) failing to order the parties to alternate the use of the income tax exemption for Garrett;
and (e) ordering him to pay a percentage of uninsured medical expenses.
IV. ANALYSIS
1. CONTEMPT
Wibbels contends that the district court erred in finding him in contempt of court for
claiming the parties’ children as income tax dependency exemptions.
In a civil contempt proceeding where a party seeks remedial relief for an alleged violation
of a court order, an appellate court employs a three-part standard of review in which (1) the trial
court’s resolution of issues of law is reviewed de novo, (2) the trial court’s factual findings are
reviewed for clear error, and (3) the trial court’s determinations of whether a party is in contempt
and of the sanction to be imposed is reviewed for abuse of discretion. Spady v. Spady, 284 Neb.
885, ___ N.W.2d ___ (2012); Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012).
When a party to an action fails to comply with a court order made for the benefit of the
opposing party, such act is ordinarily a civil contempt, which requires willful disobedience as an
essential element. Hossaini v. Vaelizadeh, supra. “Willful” means the violation was committed
intentionally, with knowledge that the act violated the court order. Id. Outside of statutory
procedures imposing a different standard, it is the complainant’s burden to prove civil contempt
by clear and convincing evidence. Id.
Because the judicial contempt power is a potent weapon, when founded upon a decree
too vague to be understood, the weapon can be a deadly one. Smeal Fire Apparatus Co. v.
Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010), disapproved on other grounds, Hossaini v.
Vaelizadeh, supra. Thus, those parties who must obey decrees must know what the court intends
to require and what it means to forbid. Id. Understood in light of these principles, the “four
corners” rule for interpreting consent decrees is intended to narrowly construe the circumstances
wherein contempt may be found. Id. Because of the seriousness of the consequences associated
with violation of a court order, courts must read decrees to mean precisely what they say. Id.
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Thus, “a court cannot hold a person or party in contempt unless the order or consent decree gave
clear warning that the conduct in question was required or proscribed.” Id. at 700, 782 N.W.2d at
877.
In the instant case, the original dissolution decree did not address the issue of income tax
dependency exemptions. It is well settled that once a decree for dissolution becomes final, its
meaning is determined as a matter of law from the four corners of the decree itself. Blaine v.
Blaine, 275 Neb. 87, 744 N.W.2d 444 (2008). Thus, although a custodial parent is presumptively
entitled to the federal tax exemption for a dependent child, State on behalf of Pathammavong v.
Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004), see I.R.C. § 152(e) (2008) and Hall v.
Hall, 238 Neb. 686, 472 N.W.2d 217 (1991), there simply was no court order in place at the time
that Wibbels filed his 2010 tax returns which provided that Wibbels was not entitled to claim the
minor children as exemptions on his tax return.
Further, the district court held in its journal entry and order entered on December 11,
2011, that “[e]ffective with the 2011 and subsequent tax years [Wibbels] may take Lauren as an
exemption pursuant to Department of Treasury Publication 501. [Kozera] shall receive the
exemption on Garrett as the custodial parent for 2011 and subsequent years.” One cannot be held
in contempt of court for acts which became prohibited by a court order entered subsequent to
their commission; a contrary ruling would have the effect of an ex post facto law. Grady v.
Grady, 209 Neb. 311, 307 N.W.2d 780 (1981). See Chicago, B. & Q. R. Co. v. State, 47 Neb.
549, 66 N.W. 624 (1896).
Thus, the district court erred in finding Wibbels in contempt for claiming the parties’
children on his 2010 tax return when no prior court order existed addressing the income tax
dependency exemptions. Because of this finding, we also vacate the requirement that Wibbels
pay Kozera $4,061 in order to purge himself of the contempt.
2. ISSUES RELATED TO MODIFICATION
OF DISSOLUTION DECREE
Wibbels assigns various errors regarding the district court’s order modifying the parties’
dissolution decree.
A party seeking to modify a child support order must show a material change of
circumstances which occurred after the entry of the original decree and which was not
contemplated when the decree was first entered. Sabatka v. Sabatka, 245 Neb. 109, 511 N.W.2d
107 (1994); Phelps v. Phelps, 239 Neb. 618, 477 N.W.2d 552 (1991). Several factors may be
considered in determining whether a material change of circumstances has occurred, including
changes in the financial position of the parent obligated to pay support, the needs of the children
for whom support is paid, good or bad faith motive of the obligated parent in sustaining a
reduction of income, and whether the change is temporary or permanent. Sabatka v. Sabatka,
supra; Dobbins v. Dobbins, 226 Neb. 465, 411 N.W.2d 644 (1987). 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. Metcalf
v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009).
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(a) Credit Against Child
Support Obligation
Wibbels contends that the district court erred in failing to give him a credit against his
child support obligation for college expenses paid.
The general rule for support overpayment claims is that no credit is given for voluntary
overpayments of child support, even if they are made under a mistaken belief that they are
legally required. Palagi v. Palagi, 10 Neb. App. 231, 627 N.W.2d 765 (2001). See Griess v.
Griess, 9 Neb. App. 105, 608 N.W.2d 217 (2000). However, “‘[e]xceptions are made to the “no
credit for voluntary overpayment rule” when the equities of the circumstances demand it and
when allowing a credit will not work a hardship on the minor children.’” Palagi v. Palagi, 10
Neb. App. at 242, 627 N.W.2d at 774, quoting Griess v. Griess, supra. Whether overpayments of
child support should be credited retroactively against child support payments in arrears is a
question of law. Palagi v. Palagi, supra; Griess v. Griess, supra. There is no evidence or
suggestion that the resolution of this dispute will impact Lauren or cause her hardship; thus, the
question is whether the equities demand that Wibbels be given the credit.
In Palagi v. Palagi, supra, this court rejected the father’s request for a child support
credit for college expenses paid for his minor daughter. This court pointed out that the father
knowingly and voluntarily paid the expenses in spite of his ex-wife’s declination to accept those
payments toward the child’s education in lieu of his remaining support obligation. Further, we
noted that the record revealed that the father did not view paying for his daughter’s education as
a burden; rather, he was predisposed to fund her college education and the payments were not a
hardship for him such that the equities demanded that he receive a credit.
In Griess v. Griess, supra, the obligor unwittingly overpaid child support by relying on
inaccurate child support computations calculated by his ex-wife’s attorney; overlooked, ignored,
or implicitly approved by his attorney; and erroneously approved by the trial court. Although the
payments were not “voluntary” or “extra” payments because they were paid in compliance with
the obligation imposed by the court’s flawed order, this court held that equitable relief by
crediting future child support payments was appropriate in that case.
Like the obligor in Griess, Wibbels’ college payments were not “voluntary” in that he
was legally obligated to pay “the reasonable and necessary expenses associated with the children
obtaining quality college educations” pursuant to the obligation imposed in the original
dissolution decree. While payment of college expenses is “normally beyond a parent’s legal
obligation,” Palagi v. Palagi, 10 Neb. App. at 242, 627 N.W.2d at 774, in the instant case,
payment of Lauren’s college expenses was exactly that--Wibbel’s legal obligation. Furthermore,
in reviewing the equities of the situation, we find that at the time of the entry of the dissolution
decree, Wibbels knew, or should have known, that there was a possibility that Lauren could be
attending college prior to reaching the age of 19 and that, pursuant to the decree, he could be
paying college expenses and child support simultaneously for a period of time. Further, we do
not find any evidence that continuing the payment of his child support obligation for the 7
months from August 2010 until March 2011 constituted a hardship for Wibbels such that the
equities demand that he receive credit.
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We also reject Wibbels’ argument that he should be awarded a credit for 7 months of
child support because, during that period of time, he was paying not only Lauren’s tuition, but
also her health insurance, books, college fees, and her room and board. In support of his
argument, Wibbels cites Redfield v. Redfield, 6 Neb. App. 274, 572 N.W.2d 422 (1997), for the
proposition that it is grossly inequitable to allow the custodial parent to receive child support for
a period of time when the children were in the father’s custody and he provided their food and
shelter.
In Redfield v. Redfield, supra, this court affirmed the decision of the district court
granting a father a $6,960 credit toward his child support arrearage for periods of time where the
minor children resided with him and he had provided support by way of food and shelter. A
similar factual situation occurred in Berg v. Berg, 238 Neb. 527, 471 N.W.2d 435 (1991),
wherein the Nebraska Supreme Court affirmed a decision granting a father credit against child
support arrearages where the evidence established that two of the children for whom the father
was ordered to pay support lived with him for a definite period of time, during which he directly
provided for their full support.
Wibbels argues that similar to the two aforementioned cases, during the 7 months from
August 2010 to March 2011, when Lauren was enrolled in college as a minor and did not reside
with Kozera, he paid for Lauren’s food and shelter, while Kozera provided no support. Thus, he
claims that like Redfield v. Redfield, supra, it would be grossly inequitable for Kozera to receive
child support for that 7-month time period and equity demands that he be given a child support
credit for that period of time. However, in the instant case, although we acknowledge that
Wibbels was paying for Lauren’s room and board during the time when she was a minor
attending college, we also note that Kozera testified that Lauren came home several times during
that time period and that Kozera continued to provide financial support to Lauren for things such
as Lauren’s cellular telephone, her car insurance, car repairs, gas money, uncovered medical
expenses, clothes, food, and items for Lauren’s dormitory room. Because Kozera continued to
provide support to Lauren during the time period that she was a minor attending college and
because Wibbels’ paying 7 months of child support during the time when he was also paying
Lauren’s college expenses does not represent a significant financial hardship for him, we reject
Wibbels’ argument and find that the district court did not abuse its discretion in failing to give
him a credit against his child support obligation for college expenses paid.
(b) Amount of Child Support
Wibbels further contends that the district court erred in increasing his monthly child
support obligation to $3,445. He concedes that his child support obligation should be increased
to $2,200 per month as a rebuttable presumption pursuant to the Nebraska Child Support
Guidelines; however, he contends that the trial court abused its discretion in failing to consider
his debt obligation and his contributions to his children’s college education in determining the
amount of his obligation above the rebuttable presumption.
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. Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004); Hendrix v. Sivick, 19
Neb. App. 140, 803 N.W.2d 525 (2011). The support of one’s children is a fundamental
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obligation which takes precedence over almost everything else. Gangwish v. Gangwish, supra;
Hendrix v. Sivick, supra. The primary consideration in determining the level of child support
payments is the best interests of the child. Sabatka v. Sabatka, 245 Neb. 109, 511 N.W.2d 107
(1994); Phelps v. Phelps, 239 Neb. 618, 477 N.W.2d 552 (1991); Schulze v. Schulze, 238 Neb.
81, 469 N.W.2d 139 (1991).
Pursuant to Nebraska Child Support Guidelines § 4-203 (rev. 2011):
The child support guidelines shall be applied as a rebuttable presumption. All
orders for child support obligations shall be established in accordance with the provisions
of the guidelines unless the court finds that one or both parties have produced sufficient
evidence to rebut the presumption that the guidelines should be applied. . . . Deviations
must take into consideration the best interests of the child. In the event of a deviation, the
reason for the deviation shall be contained in the findings portion of the decree or order,
or worksheet 5 should be completed by the court and filed in the court file. Deviations
from the guidelines are permissible under the following circumstances:
. . . .
(C) [I]f total net income exceeds $15,000 monthly, child support for amounts in
excess of $15,000 monthly may be more but shall not be less than the amount which
would be computed using the $15,000 monthly income unless other permissible
deviations exist. To assist the court and not as a rebuttable presumption, the court may
use the amount at $15,000 plus: 10 percent of net income above $15,000 for one, two,
and three children . . . .
Although farming losses are generally figured in arriving at the total monthly income
considered in the guidelines, income for the purpose of child support is not synonymous with
taxable income, and therefore even if a party is entitled to take a loss from taxable income due to
farming losses, it does not necessarily follow that the loss is also considered for the purpose of
calculating a child support obligation. Rauch v. Rauch, 256 Neb. 257, 590 N.W.2d 170 (1999).
The record establishes that Wibbels has claimed a loss for his taxable income, he
assumed the risk inherent in the investment in the cattle operation, and, as the district court
determined, Wibbels’ income allows him to service the debt in addition to meeting his child
support obligations. Lowering Wibbels’ child support obligation on the basis of these business
losses is not in his minor children’s best interests and the district court did not abuse its
discretion in failing to lower his child support obligation due to those losses. Further, the district
court did not abuse its discretion in failing to lower Wibbels’ child support obligation based upon
his obligation to fund his children’s college educations because a deviation on this basis is not in
the minor children’s best interests and, as we found earlier in this opinion, payment of the minor
children’s college expenses does not represent a significant financial hardship for Wibbels. Thus,
we affirm Wibbels’ child support obligation as determined by the district court.
(c) Retroactive Child Support Increase
Wibbels also contends that the district court abused its discretion in ordering the increase
in his child support obligation retroactive to April 1, 2011.
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Whether a child support order should be retroactive is entrusted to the discretion of the
trial court and will be affirmed absent an abuse of discretion. Emery v. Moffett, 269 Neb. 867,
697 N.W.2d 249 (2005).
“‘[A]bsent equities to the contrary, the modification of child support orders should be
applied retroactively to the first day of the month following the filing date of the application for
modification.’” Lucero v. Lucero, 16 Neb. App. 706, 716, 750 N.W.2d 377, 386 (2008), quoting
Theisen v. Theisen, 14 Neb. App. 441, 708 N.W.2d 847 (2006). In determining whether a parent
should be ordered to pay retroactive support in a modification proceeding, the court must
consider “‘the status, character, and situation of the parties and attendant circumstances,
including the financial condition of the parties and the estimated cost of support of the
children,’” as well as the obligated party’s ability to pay the lump sum that will necessarily result
by the entry of such a retroactive order. Cooper v. Cooper, 8 Neb. App. 532, 537-38, 598
N.W.2d 474, 478 (1999). See, also, Wilkins v. Wilkins, 269 Neb. 937, 697 N.W.2d 280 (2005)
(applying our standard in Cooper v. Cooper, supra); Lucero v. Lucero, supra (applying our
standard in Cooper v. Cooper, supra).
The district court ordered Wibbels’ child support retroactive to April 1, 2011, which was
the first of the month after Lauren’s emancipation. In making its determination, the court noted
that Kozera had requested that Wibbels’ increased child support obligation be retroactive to July
1, 2010, which was the first of the month after she filed the complaint to modify; however, the
court took into account the fact that Wibbels had paid approximately $20,000 for Lauren’s
college expenses during the 2010-11 school year prior to her emancipation. There was abundant
evidence adduced regarding Wibbels’ income, and the evidence shows that his income is
sufficient to meet his obligation to pay the retroactive child support and still meet his current
obligations. Thus, the district court’s decision to order Wibbels’ child support increase to be
retroactive to April 1, 2011, did not constitute an abuse of discretion.
(d) Income Tax Dependency Exemptions
Wibbels contends that the district court erred in failing to order the parties to alternate the
use of the income tax dependency exemption for the parties’ minor son, Garrett. He argues that
Garrett was 16 years old at the time of trial and that in approximately 2 years, he would most
likely be attending college with Wibbels solely responsible for Garrett’s college expenses, at
which time he should be allowed to claim Garrett as a dependency exemption on at least an
alternating basis.
The general rule is that a custodial parent is presumptively entitled to the federal tax
exemption for a dependent child. Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005). See,
I.R.C. § 152(e) (2008); Hall v. Hall, 238 Neb. 686, 472 N.W.2d 217 (1991). However, a court
may exercise its equitable powers to allocate the exemption to a noncustodial parent. Emery v.
Moffett, supra; Hall v. Hall, supra. An award of a dependency exemption is reviewed de novo to
determine whether the trial court abused its discretion. Emery v. Moffett, supra (court’s decision
in modification declining to change award of dependency exemption from custodial parent to
noncustodial parent was not abuse of trial court’s discretion). See, also, Pope v. Pope, 251 Neb.
773, 559 N.W.2d 192 (1997).
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It is undisputed that the original dissolution decree did not allocate the tax dependency
exemptions for the parties’ minor children. It is likewise undisputed that Wibbels has claimed the
tax dependency exemptions for both children from 1997 until 2009 and that in February 2010,
Kozera informed him that he was to no longer claim the tax dependency exemptions for both
children. The district court ordered that in 2011 and subsequent tax years, Wibbels was allowed
to claim Lauren as a tax dependency exemption, and that Kozera shall receive the exemption for
Garrett as the custodial parent for 2011 and subsequent years. Based on our de novo review of
the record, and noting that Wibbels has had the benefit of both tax dependency exemptions since
1997, we cannot say that the district court abused its discretion in awarding the tax dependency
exemptions as it did.
(e) Uninsured Medical Expenses
Wibbels contends that the district court erred in modifying the dissolution decree to order
him to pay a percentage of Garrett’s uninsured medical expenses when the original decree did
not require him to pay a portion of the uninsured medical expenses and there was no evidence of
a material change of circumstances warranting such an award.
A decree for child support in a divorce case is always subject to review and modification
regardless of the particular language of the award. Hoover v. Hoover, 2 Neb. App. 239, 508
N.W.2d 316 (1993). Regarding minor children, a dissolution decree is never final in the sense
that it cannot be changed. Id.
The responsibility of a minor child’s parent to pay uninsured medical expenses has been
addressed by both the Nebraska Supreme Court and this court. The Nebraska Supreme Court in
Druba v. Druba, 238 Neb. 279, 284, 470 N.W.2d 176, 180 (1991), held that “[b]oth parents have
the duty to support their minor children” and that “the children’s need for future and necessary
medical services may not be ignored by either parent.” Similarly, in Hendrix v. Sivick, 19 Neb.
App. 140, 146, 803 N.W.2d 525, 531 (2011), this court held that “[i]t is in the best interests of
the child for each parent to pay his or her proportionate share of the child’s childcare and
uninsured medical expenses.”
In 1997, when the parties’ original dissolution decree was filed, the Nebraska Child
Support Guidelines provided that “the court may apportion all nonreimbursed children’s health
care costs between the parents according to the same formula used to determine each parent’s
share of support.” Nebraska Child Support Guidelines, paragraph O (amended in 1996).
However, in the interim, the Nebraska Child Support Guidelines were amended. In June 2010,
when Kozera filed the complaint to modify the parties’ dissolution decree, the guidelines
provided that “[a]ll nonreimbursed reasonable and necessary children’s health care costs in
excess of $480 per child per year shall be allocated to the obligor parent as determined by the
court, but shall not exceed the proportion of the obligor’s parental contribution (worksheet 1, line
6).” Nebraska Child Support Guidelines § 4-215(B) (rev. 2009). This change is a material change
of circumstances since the entry of the dissolution decree.
The evidence established that Garrett has a medical condition requiring medical attention
resulting in uninsured medical expenses. It is both parents’ responsibility to pay their
proportionate share of their minor children’s uninsured medical expenses. Thus, the district court
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did not abuse its discretion in ordering Wibbels to pay his proportionate share of 92 percent of
the minor children’s uninsured medical expenses.
V. CONCLUSION
Having considered Wibbels’ assigned errors regarding the modification and rejected
them, we affirm the modification order, including the provisions regarding uninsured medical
expenses contained in the court’s order following Wibbels’ motion for a new trial. However,
having found that the district court erred in finding Wibbels in contempt for claiming the parties’
children on his 2010 tax return when no prior court order existed addressing the income tax
dependency exemptions, we reverse the order of contempt. Because of this finding, we also
vacate the requirement that Wibbels pay Kozera $4,061 in order to purge himself of the
contempt.
AFFIRMED IN PART, AND IN PART
REVERSED AND VACATED.
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