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Nebraska Court Decisions

Nebraska Family Law and Divorce Lawyers

Below are some case summaries that may be of interest to our potential and current Nebraska clients. For more information on these cases or your family situation, contact our attorneys at the Klass Law Firm, L.L.P., today by calling 800-613-7989 ext. 213.

Nebraska does not have jurisdiction over Japanese child. The Nebraska Supreme Court determined there was no jurisdiction to hear a custody case where the parties had been living in Japan due to the father's military assignment. The parties left Nebraska when the child was 10 months old and lived in Japan for 2.5 years, when the father retired from the military. The father took the child and returned to Nebraska, and immediately filed for divorce and custody of the child. The mother objected, arguing the Nebraska court had no jurisdiction because the child's home state was not Nebraska. The Supreme Court determined that under the law, the child's home state is where he has lived for 6 months prior to the custody filing, and only the home state would have jurisdiction. Here, the fact the child was born in Nebraska and lived in Nebraska for 10 months did not make Nebraska his home state. The family had sufficient ties to Japan (they had family there, they had been married there) that the father's military assignment did not make the 2.5 years in Japan a "temporary" residence. The Nebraska court should not have heard the original custody case. Carter v. Carter, 276 Neb. 840 (2008).

Parent must have legitimate reason to move out of state with child. Mother had physical custody of the couple's child. Mother and father lived near each other, in a town on the Nebraska/Missouri border. Mother and child moved in with mother's boyfriend, who also lived in the town, at the time of their divorce. Ten months after their divorce, mother asked the court to allow her to move with her boyfriend to Big Lake, Missouri, which was 17.6 miles away. The child would continue to go to her school in Nebraska, and mother would drive her the 17 miles from Missouri to father's home. The district court granted Mother's request for the move. On appeal, the Nebraska Court of Appeals determined that, although the move was less than 20 miles away, Mother still needed to demonstrate a legitimate reason for removing the child from the state. In this case, the move was not based on employment reasons or remarriage, but Mother's desire to continue living with her boyfriend, which was not legitimate. Because Mother did not satisfy the initial threshold of showing a legitimate reason to move, it was unnecessary to determine whether the move was in the child's best interests. Curtis v. Curtis, 17 Neb. App. 230 (2008).

Child support for high income parents determined on a case by case basis. The Nebraska Court of Appeals determined that in child support cases where the parents earn more than the monthly amounts listed in the Child Support Guidelines-in this case, the parents earned $31,190.17 a month-the amount of support could not be determined by a single method. Instead, the question of proper support in an above guidelines case is determined by the evidence which encompasses not only methodology but rather a variety of other matters relating to the circumstances of the parties and the children. Here, because the father was responsible for 94% of the support amount, the Court used that number to determine his support payment. Drew on Behalf of Reed v. Reed, 16 Neb. App. 905 (2008).

Spouse had duty to disclose expected bonus in divorce proceedings. The Nebraska Court of Appeals upheld a trial court's decision to divide a multi-million dollar bonus as marital property. Before trial, the husband learned he would be entitled to the bonus following a merger. He did not disclose this bonus to his wife, even though she specifically asked for information about bonuses in discovery. After the wife rested her case but before a decree had been issued, the wife asked the court to allow her to introduce evidence of the bonus. She was allowed to, and the trial court found the bonus was marital property. The husband appealed. The Court of Appeals held that husband knowingly concealed evidence of the bonus by not supplementing his discovery answers, and affirmed the trial court's decision. Myhra v. Myhra, 16 Neb. App. 920 (2008).

Name change must be in the best interest of the child. The Nebraska Supreme Court affirmed a district court's decision to refuse the name change of a minor child, where the child's surname was not the same as either his biological mother or biological father. The mother had remarried and thus, the child's name would not be the same as either of his parents. The mother testified the child wanted the new name and was using his mother's new last name at preschool, and the child would feel closer to his new stepfather if the name were changed. The court found that, although the name was different than both his parents, the mother's testimony did not, on its own, indicate the child's preference for the new surname, and her desire for the child to be closer to his stepfather was not a relevant factor to be considered. The district court determined the mother did not provide sufficient proof to show the name change was in the child's best interests. The Supreme Court affirmed, over the dissenting justices, who argued that a child with a surname different from both parents' surname should always be considered when determining whether a name change is appropriate. In re Change of Name of Slingsby, 276 Neb. 114 (2008).

Promissory note conflicts with Nebraska divorce decree. The Nebraska Supreme Court determined that a party cannot enforce an acceleration clause contained in a promissory note signed by a former spouse. The promissory note involved the terms of payment of the wife's alimony. An acceleration clause was unenforceable because it was inconsistent with the parties' divorce decree. The intent of the promissory note was not to create a debt but to modify the terms of the preexisting obligation in the decree without approval of the court. Absent a valid modification through the court, the terms found in the decree regarding the alimony obligation controlled over the promissory note. A party cannot attempt to change the terms of an obligation in a way that conflicts with a decree, absent a valid modification. Marcovitz v. Rogers, 276 Neb. 199 (2008).

District Court can ignore agreement of the parties regarding child support calculations. The mother had physical care of the parties' son. The father was awarded two months of summer vacation and was ordered to pay child support. The son later moved to the father's home in Florida. The father sought to modify the previous child support order. The parties stipulated that support should be calculated based on joint physical care. The district court calculated the mother's support at $439 per month. The Court of Appeals held that the district court was not bound to the parties' agreement regarding calculation of support and was correct to find there was no joint physical care of the child. The mother's child support could be reduced by 50% when the child was with her for more than 39 consecutive days; however, the mother was not entitled to an 80% reduction because the father would still have costs in maintaining the child's permanent home. Lucero v. Lucero, 16 Neb. App. 706 (2008).

Court finds premarital agreement did not exclude division of assets acquired during marriage. The parties entered into a premarital agreement. Some of the husband's property was inadvertently omitted from the agreement. The district court gave the wife part of a savings plan listed as part of the husband's premarital property in the agreement, as well as part of an annuity that was omitted. The husband appealed, arguing that she was not entitled to any of the plan or annuity. The Supreme Court held that the savings plan and annuity had earned money during the marriage. The wife was entitled to part of the money because the premarital agreement did not allow the husband to keep the benefits earned from the plans during the course of the marriage. Sitz v. Sitz, 275 Neb. 832 (2008).

Wife not entitled to payment for husband's family farm stock. In a dissolution action, the district court did not award a "Grace award" to the wife. A "Grace award" is a device to fairly and reasonably divide marital estates where the prime asset in contention is one spouse's gifted or inherited stock or property in a family agricultural organization. The wife argued that she should be awarded a cash award because the husband's interest in the corporation was considered premarital property. The Court of Appeals upheld the district court's decision, stating the "Grace award" was not warranted here because the parties had a substantial marital estate apart from the interest in the stock, and the estate had been fairly divided. Charron v. Charron, 16 Neb. App. 724 (2008).

Lump sum child support payment approved by the Supreme Court. The parents of a minor child made an agreement where the father would pay the mother $14,000 in a lump sum and the mother would give him a credit towards any future child support. The father was later order to pay child support. The Supreme Court held the agreement was enforceable and the father was entitled to a credit for the payment. Although public policy forbids enforcement of a private agreement that purports to discharge a parent's liability for child support, the agreement here did not discharge the father's obligation. The lump sum payment was made for the benefit of the child and equity required the payment to be considered a lump sum child support payment, not a waiver of support altogether. The father was still obligated to pay support in the future. Jensen v. Jensen, 275 Neb. 921 (2008).

Nebraska court denies increase in alimony after woman voluntarily leaves job. Ex-wife sought modification of an alimony award after her ex-husband's income increased by $200,000 in two years. She argued that his increase in income, coupled with her return to school after quitting her job, showed a material change in circumstances, entitling her to more alimony. The Supreme Court determined that the ex-husband's increase in salary was not substantial because he had significant expenses while living and working in India. Additionally, the ex-wife had quit her job for personal reasons, not because of schooling, and her voluntary reduction in income was not to be rewarded by increased alimony. Simpson v. Simpson, 275 Neb. 152 (2008).

Nebraska Supreme Court determines date of valuation for investment accounts. In a 1998 divorce decree, the district court awarded half of the husband's investment accounts to his wife. The husband was responsible for filing the QDRO (Qualified Domestic Relations Order) to initiate the transfer of funds to the wife. The accounts were never divided. The wife attempted many times to get her half of the accounts but after 8 years, had not received her funds. The value of the accounts dropped in those 8 years. She eventually sued. The Supreme Court determined that the wife was entitled to her share of the accounts, and that the value of her share should be based on the value of the accounts on the date of the divorce decree. Blaine v. Blaine, 275 Neb. 87 (2008).

Court modifies child support order using other state's laws. The Nebraska Court of Appeals determined the district court did not have the power to use Nebraska substantive law to modify a New Mexican child support order. The district court was required to use the law of New Mexico when considering whether to change the original child support order. Wills v. Wills, 16 Neb. App. 559 (2008).

Premarital agreement valid. The Nebraska Court of Appeal determined a premarital agreement was enforceable even though the woman's attorney was not present when she signed the agreement. She had an attorney who advised her prior to the signing, which was adequate representation. Although her husband's assets had not been fully disclosed at the time of the signing, the agreement was not unconscionable because the parties' intentions were clear and both were represented by counsel. Edwards v. Edwards, 16 Neb. App. 297 (2008).

Standard for terminating parental rights in Nebraska. The Nebraska Court of Appeals was asked to determine whether to terminate the parental rights of a mother convicted of conspiring to kill her child's father. The court found that incarceration cannot be the sole reason for terminating a parent's rights. When deciding whether to terminate a parent's rights, a court should look at the crime committed and the victim of the crime. Timothy T. v. Shireen T., 16 Neb. App. 142 (Nebraska 2007).

Wife was entitled to traditional alimony when she was able to support herself but husband had significantly higher earning potential. The wife in this case was capable of earning approximately $32,000-$36,000 per year; however, the husband was capable of earning a salary of $92,000. The trial court awarded $1,000 per month in "rehabilitative" spousal support. The award of "rehabilitative" spousal support is not appropriate here because the wife was not intending to seek training or education. However, $1,000 per month was deemed appropriate as traditional spousal support. The trial court also valued a business property at $110,000 after an expert appraisal testified the value was actually $80,000. Both the husband and wife agreed that the $80,000 valuation was accurate. The Supreme Court modified the valuation from $110,000 to $80,000 and adjusted the husbands equalization payment accordingly.

Contact a Nebraska family law attorney at the Klass Law Firm, L.L.P., today to discuss your case and needs. Call 800-613-7989 ext. 213.

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