Child Support Enforcement - Sarpy County Nebraska

Held: State failed to meet its burden of proof to show parent had earning capacity of minimum
wage income.
[E]arning capacity should be used only if there is evidence that the parent can
realize that capacity through reasonable efforts.
The party seeking the modification has the burden to produce sufficient proof that a
material change of circumstances has occurred that warrants a modification.
The parties ask us to decide whether the material change of circumstances must
exist at the time of filing of the complaint to modify or at the time of the modification
trial. We hold that the change in circumstances must exist at the time of the
modification trial for two reasons. First, because the court’s decision to modify child
support must be based upon the evidence presented in support of the complaint to
modify. Second, because the change in circumstances cannot be temporary.
it would be improper for the court to focus on anything but the most recent
circumstances ascertainable from the evidence.
…such change of circumstances should exist at the time of trial and not merely at
the time of the complaint to modify.
Lee’s decrease in income since the initial complaint to modify was not due to her
fault or voluntary choice. On the contrary, Lee has remained unemployed despite
numerous efforts on her part to find employment.
Although Lee’s employment …lasted for more than 3 months, given that it had
effectively terminated, it could not be reasonably expected to last for an additional 6
months. Thus, the State’s evidence failed to trigger the rebuttable presumption of a
change of circumstances under § 4-217.
See dissent:
The Nebraska Supreme Court has held that a material change in
circumstances is a concept which eludes precise, concrete definition. See
Dobbins v. Dobbins, 226 Neb. 465, 411 N.W.2d 644 (1987).
Cooper v. Cooper, 8 Neb. App. 532, 598 N.W.2d 474 (1999)
the trial court did not abuse its discretion when considering the earning capacity of a
mother, who chose to work only part time in order to spend more time with her
children, rather than her actual income when no specific evidence showed an
inability to spend adequate time with the children while she was working 40 hours
per week.
Dworak v. Fugit, 1 Neb. App. 332, 495 N.W.2d 47 (1992)
Holding: Earning capacity, and not mere income, is what a court should focus on
The amount of child support awarded is a function of the status, character, and
situation of the parties…. The primary consideration in determining the level of child
support payments is the best interests of the child.
Henke v. Guerrero, 13 Neb. App. 337, 692 N.W.2d 762 (2005)
Child support may be based on a parent’s earning capacity when a parent voluntarily
leaves employment and a reduction in that parent’s support obligation would
seriously impair the needs of the children.
Earning capacity may be used as a basis for an initial determination of child support
under the Nebraska Child Support Guidelines where evidence is presented that the
parent is capable of realizing such capacity through reasonable effort.
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