Lucero v. Lucero

The State further argues that after having entered a final order
affirming the decision of the NREC, the district court was not
in a position to determine that John was “‘likely to prevail when
the court finally dispose[d] of the matter.’” Brief for appellees
on cross-appeal at 41. The State relies on Miller v. Horton,
253 Neb. 1009, 574 N.W.2d 112 (1998), wherein the Nebraska
Supreme Court found that a stay under § 84-917(3) was improv-
idently granted because the trial court had not made any of the
findings required under that subsection.
We need not determine whether § 84-917(3) is applicable
to further appeals of agency decisions from the district court
to this court. Even if it were applicable, there is nothing in
the record in this case to suggest that the district court would
have been required to make findings on the listed criteria. The
requirement in § 84-917(3) that the court must make findings
on these criteria before granting relief is conditioned upon a
finding by the agency that “its action on an application for stay
or other temporary remedies is justified to protect against a
substantial threat to the public health, safety, or welfare.” There
is no such finding in the record before us. The court’s grant of
a stay in this case conforms to the law, is supported by compe-
tent evidence, and is not arbitrary, capricious, or unreasonable.
Accordingly, the State’s assignment of error on cross-appeal is
without merit.
CONCLUSION
We affirm the decision of the district court in this case
because it conforms to the law, is supported by competent evi-
dence, and is not arbitrary, capricious, or unreasonable.
A ffirmed .
renee K. L ucero , AppeLLAnt , v . ivAn m. L ucero , AppeLLee .
750 N.W.2d 377
Filed May 27, 2008. 	No. A-07-914.
1. Modification of Decree: Child Support: Appeal and Error. An appellate court
reviews modifications of child support de novo on the record and will affirm the
judgment of the trial court absent an abuse of discretion.
706 	16 NEBRASkA AppELLATE REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

2. Child Support: Stipulations. A stipulation for child support is not binding on
the court.
3. Child Support: Rules of the Supreme Court. paragraph C of the Nebraska Child
Support Guidelines provides that all stipulated agreements for child support must
be reviewed against the guidelines and if a deviation exists and is approved by the
court, specific findings giving the reason for the deviation must be made.
4. ____: ____. paragraph L of the Nebraska Child Support Guidelines provides that
when a specific provision for joint physical custody is ordered and each party’s
parenting time exceeds 142 days per year, it is a rebuttable presumption that sup-
port shall be calculated using worksheet 3.
5. ____: ____. paragraph L of the Nebraska Child Support Guidelines provides that
when a specific provision for joint physical custody is ordered and one party’s par-
enting time is 109 to 142 days per year, the use of worksheet 3 to calculate support
is at the discretion of the court.
6. Child Support. Where a parent’s annual earnings show a clear pattern of consist-
ently increasing income, current earnings, not income averaging, should be used in
calculating the child support obligation.
7. Child Support: Visitation: Time: Rules of the Supreme Court. paragraph J of
the Nebraska Child Support Guidelines provides that when there are visitation or
parenting time periods of 28 days or more in any 90-day period, support payments
may be reduced by up to 80 percent.
8. Child Support: Proof. The parent claiming a deduction for health insurance must
show that he or she has incurred an increased cost to maintain the coverage for the
children over what it would cost to insure himself or herself.
9. Modification of Decree: Child Support: Time. Absent 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.
10. Child Support. In the absence of a showing of bad faith, it is an abuse of discre-
tion for a court to award retroactive child support when the evidence shows the
obligated parent does not have the ability to pay the retroactive support and still
meet current obligations.
11. Judgments: Proof. The district court may, on motion and satisfactory proof that
a judgment has been paid or satisfied in whole or in part by the act of the parties
thereto, order it discharged and canceled of record, to the extent of the payment
or satisfaction.
12. Modification of Decree: Child Support: Time. The same principles that apply
with respect to retroactivity of a new obligation to pay support, i.e., that the
obligation can be retroactive to the first day of the month following the filing
of a request to modify to impose (or increase) a child support obligation, should
generally apply also when the request is to terminate a child support obligation.
13. Modification of Decree: Child Support: Equity: Estoppel. When a divorce
decree provides for the payment of stipulated sums monthly for the support of a
minor child or children, such payments become vested in the payee as they accrue,
and generally, the courts are without authority to reduce the amounts of such
accrued payments. The articulated exception to the vesting rule concerns situations
in which the payee is equitably estopped from collecting the accrued payments.
LUCERO v. LUCERO 	707
Cite as 16 Neb. App. 706

Appeal from the District Court for Garden County: K ristine
r. cecAvA, Judge. Affirmed in part as modified, and in part
vacated and set aside.
Robert M. Brenner, of Robert M. Brenner Law Office, for
appellant.
Leonard G. Tabor, of Leonard G. Tabor Law Office, for
appellee.
sievers , moore, and cAsseL, Judges.
sievers, Judge.
Renee k. Lucero appeals the decision of the district court for
Garden County, Nebraska, modifying child custody, the parties’
respective child support obligations, and the visitation provi-
sions. The district court (1) ordered Renee to pay child support
in the amount of $439 per month retroactive to June 1, 2007,
and (2) retroactively terminated Ivan M. Lucero’s child support
obligation as of January 31, 2007. We have determined that the
matter should be submitted for decision without oral argument
pursuant to our authority under Neb. Ct. R. of prac. 11B(1)
(rev. 2006).
FACTUAL AND pROCEDURAL BACkGROUND
Initially, to avoid any confusion, we point out an error by
the court reporter. The title page on the testimony in the bill of
exceptions recites that the proceedings were had “on August 6,
2006.” It is clear from everything else in the proceedings and
our record that the trial occurred August 6, 2007.
Renee and Ivan were married at one time and lived in
Colorado. The parties have a son, Jerad, born August 15, 1993.
Renee and Ivan were divorced in Colorado, and although the
date is unclear from the record, we know the decree was entered
either in 1999 or 2002. Sometime after the divorce, Renee and
Jerad moved to Nebraska and Ivan moved to Florida. And while
the divorce decree is not in our record, it is clear that Renee had
physical custody of Jerad.
Renee filed a motion to modify the parties’ decree pertain-
ing to child support and visitation issues in the district court
708 	16 NEBRASkA AppELLATE REpORTS

for Garden County. In an order filed on November 29, 2004,
the district court stated: “NOW on this 14th day of September,
2004, [this] matter comes on by stipulation between the parties
concerning child visitation, child support and transportation
issues.” Based on the oral stipulation of the parties, the district
court awarded Ivan 2 months of summer visitation with Jerad,
awarded Ivan visitation for one-half of Jerad’s Christmas break
from school, ordered the parties to each pay half of Jerad’s
transportation costs for summer and Christmas visitations, and
ordered Ivan to pay $524 per month in child support beginning
September 1, 2004. The district court stated, “This order shall
supersede the previous Colorado order.”
On January 30, 2007, Ivan filed a motion to modify the decree,
alleging a material change of circumstances. Ivan alleged that
(1) the original dissolution decree was entered in the District
Court for Jefferson County, Colorado, in 2002 and thereafter
said action was transferred to Nebraska; (2) on September 14,
2004, an order was entered by the Garden County District Court
which in part ordered Ivan to pay $524 per month in child sup-
port commencing September 1, 2004; and (3) there was a mate-
rial change of circumstances because Jerad was now living with
Ivan in Jacksonville, Florida, a move that Renee agreed to, and
Jerad started school in Jacksonville on January 8, 2007. Ivan
asked the district court to modify the decree previously entered
by (1) granting him custody of Jerad; (2) terminating Ivan’s
child support as of January 1, 2007; (3) determining the proper
amount of child support to be paid by Renee; (4) determining
the appropriate percentage of Jerad’s medical expenses to be
paid by each party; and (5) setting a specific visitation schedule
for Renee. On May 11, 2007, Ivan filed an amended motion for
modification further alleging that Jerad was living with Ivan
in Jacksonville “for all of 2007,” and he specifically asked the
district court to credit him for the child support payments he
had been making since January 1, 2007.
Renee entered her voluntary appearance on February 5, 2007.
On May 22, she filed her response to Ivan’s amended motion
for modification and her own cross-motion for modification
on visitation. In her answer, Renee (1) admitted that Jerad had
been living in Jacksonville “since part of January, 2007 to the
LUCERO v. LUCERO 	709
Cite as 16 Neb. App. 706

present date,” but alleged that Jerad would return to Renee on
June 2 and remain with her until at least August 4; (2) alleged
that a deviation in the award of child support should be granted
because the costs of transportation for contact and visita-
tion with Jerad are now greater and that the costs are within
“Section J,” the parenting time adjustments of the Nebraska
Child Support Guidelines (Guidelines)—she also alleged that
the child support should be reduced up to 80 percent during
summer visitations; and (3) alleged that setting her child sup-
port obligation to commence on January 1, 2007, precedes
the filing of the motion and voluntary appearance of Renee
and thus would be prejudicial and unjust to her and affect her
ability to support another child who needs her support. In her
cross-motion on visitation, Renee alleged that given the fact
that Jerad may or will return to Ivan, the court must set specific
visitation periods for Renee because past issues and problems
have occurred which a specific order would address.
In an order filed on August 14, 2007, the district court noted
that the parties stipulated at the beginning of trial that (1) Jerad
had been living with Ivan in Jacksonville since January 8; (2)
the parties should be awarded joint legal custody of Jerad,
with Ivan having physical custody; (3) Jerad’s residence will
be in the State of Florida; (4) visitation should occur during
the “Christmas/Winter break” from school and during the sum-
mer break from school; (5) Jerad should be with Renee for
the majority of the summer; and (6) the cost of transportation
should be divided equally between the parties. Therefore, the
court ordered that the parties were to have joint legal custody of
Jerad with Ivan having physical custody. The district court set a
specific visitation schedule for Renee which included summer
visitation to “begin one week after the last day of school and
is to end one week prior to the commencement of school,” 10
days during the “Christmas/Winter break,” and unlimited visi-
tation during any time period Renee is visiting in Florida. The
district court ordered that the cost of Jerad’s round trip airline
tickets for visitations with Renee are to be divided equally
between the parties, with Renee paying for such costs up front
and Ivan reimbursing Renee for one-half of the cost within 30
710 	16 NEBRASkA AppELLATE REpORTS

days of the receipt of the confirmation of flight and the cost
thereof from Renee.
The district court further ordered that (1) Ivan’s child sup-
port obligation was retroactively terminated as of January 31,
2007; (2) any amount paid by Ivan after January 31 is to be
credited to any arrears and accrued interest that Ivan owes for
child support and then any remaining overpayment “shall . . .
constitute a judgment against [Renee], together with interest
thereon at the rate of ___ per cent (%) per annum” (the blank
was not filled in by the district court); (3) until such time as
the judgment is paid in full, Renee is responsible for all of
the transportation costs incurred for visitation, that is one-half
of the cost of the airline ticket “shall be credited against the
unpaid judgment and interest thereon”; (4) Renee’s child sup-
port obligation is $439 per month commencing June 1; and (5)
in the event that Renee has Jerad for more than 30 consecutive
days in the summer, her child support for June and July should
be abated by one-half. The district court attached two child
support worksheets. The first worksheet attached by the district
court was a one-page compilation of standard worksheets 1
(basic child support calculation), 4 (number of children cal-
culation), and 5 (deviations worksheet) of the Guidelines. The
second worksheet attached by the district court was standard
worksheet 3, a calculation for joint physical custody. We note
that neither child support worksheet reflects the $439 figure
as determined by the district court. Renee timely appeals the
district court’s order.
ASSIGNMENTS OF ERROR
Renee has properly assigned errors which we will set forth
at the beginning of each separate topical section in our analysis
section of the opinion.
STANDARD OF REVIEW
[1] An appellate court reviews modifications of child support
de novo on the record and will affirm the judgment of the trial
court absent an abuse of discretion. Pool v. Pool, 9 Neb. App.
453, 613 N.W.2d 819 (2000).
LUCERO v. LUCERO 	711
Cite as 16 Neb. App. 706

ANALYSIS
Child Support Calculation.
Renee argues that the district court erred in calculating her
child support payment of $439 per month by its using incorrect
income figures in the basic worksheet attached to the order
and by its not taking into account established deviations and
other deductions. Renee further argues that the district court’s
decision is unclear as to whether the district court applied
worksheet 3 and thus it erred in either (a) not applying work-
sheet 3, which both parties stipulated would be used in calcu-
lating Renee’s child support, or (b) applying worksheet 3, but
not applying the correct number of days the child spends with
each parent.
The district court attached two child support worksheets to
its order, but did not specifically adopt either, although as we
have said many times, the trial courts are obligated to do so.
The first worksheet attached by the district court was a one-
page compilation of standard worksheets 1 (basic child support
calculation), 4 (number of children calculation), and 5 (devia-
tions worksheet). The second worksheet attached by the district
court was standard worksheet 3, a calculation for joint physical
custody. We note that the first worksheet was for 3 children,
even though the parties have only 1 child. And worksheet 3
showed that each party had the child for 183 days per year,
even though Renee had Jerad only during his Christmas and
summer vacation, and thus that worksheet 3 is not accurate.
Neither child support worksheet reflects the $439 figure as
ordered by the district court.
[2-5] Renee is correct in that both parties agreed that work-
sheet 3, a calculation for joint physical custody, would be used.
However, a stipulation for child support is not binding on the
court. See Bevins v. Gettman, 13 Neb. App. 555, 697 N.W.2d
698 (2005). paragraph C of the Guidelines states in part:
The child support guidelines shall be applied as a rebut-
table 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. All
712 	16 NEBRASkA AppELLATE REpORTS

stipulated agreements for child support must be reviewed
against the guidelines and if a deviation exists and is
approved by the court, specific findings giving the reason
for the deviation must be made.
(Emphasis supplied.) paragraph L of the Guidelines, regarding
joint physical custody, states in part:
When a specific provision for joint physical custody is
ordered and each party’s parenting time exceeds 142 days
per year, it is a rebuttable presumption that support shall
be calculated using worksheet 3. When a specific provi-
sion for joint physical custody is ordered and one party’s
parenting time is 109 to 142 days per year, the use of
worksheet 3 to calculate support is at the discretion of
the court.
In its order, the district court specifically stated that “[t]here is
no joint physical custody of the child.” If Renee has Jerad with
her in Nebraska for the maximum time allowed by the district
court, the time she will have Jerad is right at 90 days per year.
Therefore, using worksheet 3 to calculate the parties’ child sup-
port obligation would not be in accordance with paragraph L of
the Guidelines and the court did not abuse its discretion in not
using worksheet 3. To avoid the cost and delay to the parties
involved in remanding the cause for the district court to adopt
a worksheet, we will do our own worksheet 1, the basic child
support calculation. That said, counsel might read the concur-
rence in Moore v. Bauer, 11 Neb. App. 572, 657 N.W.2d 25
(2003) (suggesting that counsel has obligation to ensure that
worksheet has been adopted before filing appeal).
Renee’s monthly income is not in dispute, because the parties
stipulated that she earns $2,744 gross per month as a salaried
employee. However, Ivan’s income is somewhat disputed. Ivan
is a “float driver” for a shipping company, meaning he covers
for people who are sick or who do not come to work. Ivan earns
$20.56 per hour and is guaranteed a 35-hour workweek, and
after 40 hours he is paid on an overtime basis. The company’s
overtime is paid on a “bid only basis” based on seniority of
employment and is not always available. Ivan testified that
the availability of overtime fluctuates. If the company is fully
staffed, there is less overtime. During the peak season, such
LUCERO v. LUCERO 	713
Cite as 16 Neb. App. 706

as Christmastime, employees are required to come to work,
so there is no overtime available for Ivan because there are no
shifts to cover. Therefore, Ivan testified that during the winter
months, he works only a 35-hour week. When asked on cross-
examination if he bids on overtime every week, Ivan responded,
“Absolutely.” Ivan testified that the company is his only source
of income—he does not have stocks, bonds, or investments.
In determining Ivan’s income, the district court said, “[Ivan’s]
income was obtained by adding the gross income from [his]
2005 W-2 and 2006 W-2 and dividing by half. The resulting
figure was divided by 12 to arrive at the monthly income. This
includes [Ivan’s] overtime as it has historically been earned.”
Thus, the district court used “income averaging” to determine
Ivan’s monthly income.
Ivan’s W-2’s show he earned $44,521.34 in Social Security
wages in 2005 and $50,964.68 in Social Security wages in
2006. Also in evidence is an interoffice memorandum from his
employer dated March 16, 2007, which showed a breakdown
of Ivan’s 2006 earnings. In 2006, Ivan earned $35,352.55
base pay, $10,810.10 overtime, and $7,233.28 in “other” pay
(including sick pay, holiday pay, vacation, personal, and profit
sharing). However, it does not appear that the “other” pay is
reasonably available cash which will support Jerad, and there-
fore, we do not consider such amount. See Simpson v. Simpson,
275 Neb. 152, 744 N.W.2d 710 (2008) (expatriate income not
considered “reasonably available” for child support payments).
The interoffice memorandum also showed that as of March 16,
2007, Ivan’s 2007 earnings included $7,401.66 base pay and
$789.69 overtime. However, Ivan’s earnings from January 1 to
March 16, 2007, are from winter months when, as Ivan testi-
fied, there is limited overtime. For that reason, we find Ivan’s
“year-to-date” earnings for 2007 are not a reliable predictor
of what his final 2007 wages would be, given that overtime is
obviously a substantial part of his pay. Moreover, the W-2’s and
the information on the interoffice memorandum do not match
up, therefore we work with the wages shown on the W-2’s.
[6] In Peter v. Peter, 262 Neb. 1017, 637 N.W.2d 865 (2002),
the Nebraska Supreme Court found that where the obligor’s
annual earnings show a clear pattern of consistently increasing
714 	16 NEBRASkA AppELLATE REpORTS

income, current earnings, not income averaging, should be used
in calculating the child support obligation. However, reference
to worksheet 1 of the Guidelines reveals that “[i]n the event
of substantial fluctuations of annual earnings of either party
during the immediate past 3 years, the income may be aver-
aged to determine the percent contribution of each parent.” We
have evidence only of Ivan’s income from 2005 and 2006 via
the W-2’s for those years, and from such evidence it does not
appear that Ivan’s income has “substantially fluctuated,” but,
rather, the evidence shows that Ivan’s income is increasing
when compared year over year. Thus, Ivan’s current earnings
from 2006 will be used to calculate his child support obligation.
Therefore, based on his 2006 W-2, we find that Ivan’s gross
income is $50,964.68 per year, or $4,247.06 per month.
[7] We find that the Renee’s child support obligation shall be
$446.69 per month. We have attached our child support work-
sheet calculation using Renee’s earnings of $2,744 per month
and Ivan’s earnings of $4,247.06 per month. In our child sup-
port calculation, we gave Ivan a deduction of $65.63 per month
for his retirement contributions which were supported by the
evidence in our record. The district court found that in the event
that Renee has Jerad for more than 30 consecutive days in the
summer, her child support for June and July should be abated
by one-half. paragraph J of the Guidelines provides that when
there are visitation or parenting time periods of 28 days or
more in any 90-day period, support payments may be reduced
by up to 80 percent, but that such determination is made using
the trial court’s discretion. Although Renee will undoubtedly
incur additional expenses when Jared is with her, Ivan’s costs
in maintaining Jared’s permanent home will not disappear.
Therefore, we cannot say that the trial court abused its discre-
tion in its selection of a 50-percent abatement rather than an
80-percent abatement of Renee’s support obligation.
[8] We do not give either parent a deduction for health insur-
ance premiums paid to cover Jerad, because neither party sub-
mitted sufficient evidence of the increased cost of such cover-
age. The parent claiming a deduction for health insurance must
show that he or she has incurred an increased cost to maintain
the coverage for the children over what it would cost to insure
LUCERO v. LUCERO 	715
Cite as 16 Neb. App. 706

himself or herself. Noonan v. Noonan, 261 Neb. 552, 624
N.W.2d 314 (2001). See, also, paragraph E of the Guidelines.
We did not give Renee her requested deduction for retirement
savings contributions because there was not sufficient evidence
in the record to support such. Finally, we did not give Renee
her requested deviation for travel costs associated with Jerad’s
visitation costs. As will be discussed below, each party is
essentially responsible for one-half of Jerad’s travel costs, and
therefore, no deviation is warranted.
Retroactivity of Child Support.
Renee argues that the district court erred in (1) determining
Renee should retroactively commence child support payment on
June 1, 2007, and (2) retroactively terminating Ivan’s obligation
to pay child support as of January 31, 2007, and ordering Renee
to pay back child support she had received after such date.
[9] The law in Nebraska is that “[a]bsent equities to the con-
trary, 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.” Theisen v. Theisen, 14
Neb. App. 441, 451, 708 N.W.2d 847, 855 (2006). Ivan filed
his motion for modification on January 30, 2007, requesting
that his child support be terminated. Therefore, the retroactivity
date, if applicable, would be February 1, 2007.
[10] Of additional import for our holding in this matter is
Cooper v. Cooper, 8 Neb. App. 532, 538, 598 N.W.2d 474, 478
(1999), which states:
The rule providing that the status, character, and situa-
tion of the parties and attendant circumstances should be
considered in determining whether to make child support
modifications retroactive naturally requires consideration
of the obligated party’s ability to pay the lump sum that
will necessarily result in such a retroactive order. We find
no cases in which the ability of the obligated party to
pay the retroactively ordered support is discussed, but we
think the ability to pay is a paramount factor. We think
that in the absence of a showing of bad faith, it is an abuse
of discretion for a court to award retroactive child support
when the evidence shows the obligated parent does not
716 	16 NEBRASkA AppELLATE REpORTS

have the ability to pay the retroactive support and still
meet current obligations.
See, also, Wilkins v. Wilkins, 269 Neb. 937, 697 N.W.2d 280
(2005) (applying our standard in Cooper, supra). Thus, we must
consider Renee’s ability to pay retroactive support.
At the modification hearing, Renee testified that she does not
have the ability to pay any retroactive child support the court
might order. She testified that her monthly expenses exceed her
monthly income and that she has “[a]bout $4.00” in her bank
account. Renee also testified that she has been considering fil-
ing for bankruptcy and has seen an attorney regarding such.
Exhibit 17, which was received into evidence without objec-
tion, includes among other things Renee’s accounting of her
total debt and her monthly expenses, and statements from four
different credit card companies. Exhibit 17 shows that Renee’s
total debt is in excess of $100,000, almost half of which is credit
card debt. Exhibit 17 shows that Renee’s monthly expenses are
approximately $2,880, which is clearly in excess of her $2,744
per month income which was stipulated to by the parties.
The credit card statements from April to July 2007 show that
Renee is over her credit limit on three of her credit cards, and
within $200 of her limit on a fourth card. Her total credit card
charges exceed $47,000. At the time of the statements, Renee
was 2 months behind on one credit card and 3 months behind
on another. And, her minimum payment due on each of two of
the four cards exceeded Renee’s monthly income. In addition,
a third credit card company was threatening to turn over her
account for collection.
Clearly, Renee is in severe financial trouble and lacks the
funds with which to make a sizeable retroactive child support
payment. Therefore, it was an abuse of discretion under the
precedent cited above for the district court to award retroactive
child support to Ivan when the evidence shows that the obli-
gated parent, Renee, does not have the ability to pay the retro-
active support and still meet current obligations. Therefore, we
modify the district court’s decision to order that Renee’s child
support shall begin September 1, 2007.
Turning to the matter of the retroactivity of the termination of
Ivan’s support obligation, the district court entered a judgment
LUCERO v. LUCERO 	717
Cite as 16 Neb. App. 706

against Renee which in effect orders her to pay back any child
support she received from Ivan after January 31, 2007, by way
of a judgment against Renee in Ivan’s favor. The trial court also
found that of the money paid for child support after January
31, such would first be credited to Ivan’s arrears and accrued
interest, which amounted to $724 at the time of the hearing,
and the remaining amount of support she got after Jerad moved
to Florida would constitute a judgment against Renee. But the
court did not specify the amount of such judgment.
[11] Ivan cites Berg v. Berg, 238 Neb. 527, 471 N.W.2d 435
(1991), to support the district court’s judgment against Renee.
In Berg, the district court credited a father, as against his child
support arrearage, for childcare expenses incurred while two
of four children for whom he was paying child support were
living with him. Finding no abuse of discretion, the Nebraska
Supreme Court said that “[t]he district court may, on motion
and satisfactory proof that a judgment has been paid or satis-
fied in whole or in part by the act of the parties thereto, order it
discharged and canceled of record, to the extent of the payment
or satisfaction.” Berg v. Berg, 238 Neb. at 530, 471 N.W.2d at
438. Thus, to the extent that the trial court’s order allows credit
for child support paid after January 31, 2007, against arrearages
for past due support, such is clearly authorized by Berg v. Berg,
supra, and to the extent that Ivan’s arrearages and accrued
interest are deemed paid (which he testified was in the total
amount of $724), such order is affirmed.
[12] But the order in this case goes further than Berg. In the
instant case, the district court gave Ivan a judgment against
Renee for the amounts paid after January 31, 2007, which are
over the amount of Ivan’s arrearages and interest. Ivan testi-
fied that he has been paying $524 per month since Jerad came
to live with him in January through the time of trial in early
August. His request that his child support obligation be ter-
minated was filed January 30, 2007. The same principles that
apply with respect to retroactivity of a new obligation to pay
support, i.e., that the obligation can be retroactive to the first
day of the month following the filing of a request to modify
to impose (or increase) a child support obligation, should, in
fairness, generally apply also when the request is to terminate
718 	16 NEBRASkA AppELLATE REpORTS

a child support obligation. In this case, this means that Ivan’s
obligation could be terminated effective February 1. Thus, he
paid 8 months at $524 or $4,192 and had an arrearage of $724,
meaning that the judgment against Renee, for “overpaid” child
support would be $3,468, and while the district court did not
enter an amount for such judgment, the evidence shows that
such would be $3,468. But, whether such amount should be
repaid via a judgment in circumstances such as those present
here was not addressed by the Berg court.
[13] Renee argues that the payments she received after
January 2007 were hers to keep because the payments vested in
her month by month and the law is that the district court cannot
forgive accrued child support, which the judgment against her
would in effect do. In Maddux v. Maddux, 239 Neb. 239, 475
N.W.2d 524 (1991), the court said that it had repeatedly stated
the rule that when a divorce decree provides for the payment
of stipulated sums monthly for the support of a minor child or
children, such payments become vested in the payee as they
accrue and that generally, the courts are without authority to
reduce the amounts of such accrued payments. The excep-
tion to this rule appears to concern situations in which the
payee is equitably estopped from collecting the accrued pay-
ments. See, Truman v. Truman, 256 Neb. 628, 591 N.W.2d 81
(1999); Redick v. Redick, 220 Neb. 86, 368 N.W.2d 463 (1985).
The Truman decision contains an extensive discussion of the
issue, including authority from other jurisdictions, but reveals
that exception usually comes into play when the payee seeks
recovery of accrued but unpaid payments but is estopped by a
representation made to the payor that he no longer has to pay
child support, typically followed by the passage of substantial
time before the payee attempts to collect, as well as a change
of position by the payee as required by the traditional elements
of equitable estoppel. While the record here shows that Ivan
changed position by supporting Jerad in his Florida home, the
record has no evidence of any agreement or representation by
Renee that support would end in January or February 2007.
And here, not only did the payments accrue between February
and August 2007, when the case was heard, but Ivan testi-
fied that he made all of the accrued payments. Thus, in this
LUCERO v. LUCERO 	719
Cite as 16 Neb. App. 706

case the payor, Ivan, is seeking the return of payments made
to the payee, Renee, rather than Renee seeking unpaid but
accrued child support. In short, factually, this case cannot be
“force-fitted” into the exception to the vesting rule discussed
in Truman.
Therefore, we vacate the judgment which has the effect of
modifying or forgiving accrued child support payments. We
do so because the Truman exception to the no forgiveness of
accrued child support rule does not apply. And while we admit
to some discomfort with this result, given that Ivan was follow-
ing a court order to pay support which had not yet been modi-
fied, meaning that he was supporting Jerad while also making
monthly child support payments to Renee, it seems to us that
we cannot ignore the fact that Ivan could have sought and likely
obtained a temporary order upon motion and affidavit, suspend-
ing his payments pending the final hearing on his request to
terminate child support payments rather than paying them and
hoping to get them back from his financially distressed ex-wife.
Ivan’s child support payments became vested in Renee as
they accrued, and equitable estoppel does not apply; therefore,
the district court was without authority to order her to repay
such moneys, because doing so nullifies the rule that Renee’s
child support vests in her month by month as it accrues and
Truman does not apply. Additionally, the evidence shows that
Renee lacks the ability to make such payments, see Cooper v.
Cooper, 8 Neb. App. 532, 598 N.W.2d 474 (1999). Therefore,
for these reasons, we find that the district court abused its dis-
cretion in giving Ivan a judgment against Renee for amounts
paid after January beyond the credit against his arrearages and
interest. Therefore, other than his arrearages and interest being
deemed paid, such judgment against Renee is hereby vacated
and set aside.
Visitation Travel Costs.
Renee argues that the district court erred in redetermin-
ing how the visitation travel costs should be divided. At the
beginning of the modification hearing, counsel for both parties
stated to the district court what they believed the parties had
agreed to. Ivan’s counsel stated, “I believe that the parties will
720 	16 NEBRASkA AppELLATE REpORTS

agree that they will split the transportation costs equally.” And
Renee’s counsel stated, “The way we done the transportation
that’s the only change here is [Ivan] would do the Christmas,
the to and from tickets and [Renee] has to do the summer, if
you follow me, I hope.” During direct examination, Ivan agreed
that statements by his counsel and Renee’s counsel to the court
regarding the parties’ agreements were correct. And during her
direct examination, Renee agreed that she would be paying for
Jerad’s flight for summer visitation, and Ivan would be paying
for the Christmas flight.
The district court ordered that the cost of Jerad’s round
trip airline tickets for visitations with Renee are to be divided
equally between the parties. However, the district court’s order
stated that Renee is to pay for Jerad’s airline ticket up front
and then Ivan is to reimburse Renee for one-half of the cost
within 30 days of the receipt of the confirmation of flight and
the cost thereof from Renee. It is clear from the record that the
parties agreed that Ivan would pay for the Christmas visitation
transportation costs and that Renee would pay for the summer
visitation transportation costs. Such agreement is practical, is
even-handed, and puts the responsibility for securing the ticket
on the party paying for such ticket. On the other hand, the
district court’s decision in this regard is cumbersome and puts
all of the purchasing burden on Renee—when she may well be
without a credit card, given her dire financial circumstances.
Therefore, the district court abused its discretion in its determi-
nation of how travel costs would be handled. The court should
have ordered such travel costs for visitation be divided as the
parties agreed, and we therefore modify the district court’s
order in this regard.
CONCLUSION
We find that Renee’s child support obligation shall be $446.69
per month, beginning September 1, 2007. We have attached our
child support worksheet calculation using Renee’s earnings of
$2,744 per month and Ivan’s earnings of $4,247.06 per month.
And in the event that Renee has Jerad for more than 30 con-
secutive days in the summer, her child support for June and July
should be abated by 50 percent as the district court ordered.
LUCERO v. LUCERO 	721
Cite as 16 Neb. App. 706

We find that the district court did not abuse its discretion in
giving Ivan a credit against any prior child support arrearage
and interest by way of the payments he made after February
1, 2007, and such in the amount of $724 are deemed paid.
However, the district court was without authority to enter a
judgment against Renee for any “overpayment” of child sup-
port by Ivan beyond such arrearage and interest, and therefore
to such extent the judgment against Renee is hereby vacated
and set aside.
We modify the district court’s order regarding the division
of travel costs for visitation and order that Ivan will pay for the
Christmas transportation costs and Renee will pay for the sum-
mer transportation costs.
A ffirmed in pArt As modified , And
in pArt vAcAted And set Aside .
722 	16 NEBRASkA AppELLATE REpORTS

Worksheet 1
BASIC NET INCOME AND SUPPORT CALCULATION
Mother 	Father
Combined
1. 	Total monthly income from all sources
(except payments received for children
of prior marriages and all means-tested
public assistance benefits)* 	2,744.00 	4,247.06
2. 	Deductions**
a. Taxes*** 	295.35 	587.88
b. FICA 	209.92 	324.90
c. Health insurance**** 	0.00 	0.00
d. Retirement 	0.00 	65.63
e. Child support previously
ordered for other children 	0.00 	0.00
f. Regular support
for other children 	0.00 	0.00
g. Total deductions 	505.26 	978.41
3. 	Monthly net income
(line 1 minus line 2g) 	2,238.74 	3,268.65
4. 	Combined monthly net income 	5,507.39
5. 	Combined annual net income
(line 4 times 12) 	66,088.64
6. 	Percent contribution of each
parent (line 3, each parent,
divided by line 4)***** 	40.6% 	59.4%
7. 	Monthly support from table 1 	1,098.89
8. 	Each parent’s monthly share
(line 7, times line 6, for each parent) 	446.69 	652.19
* Court will require copies of last 2 years’ tax returns to verify “total income” figures and copies of present wage
stubs to verify the pattern of present wage earnings, except where a party is claiming an allowance of depreciation as
a deduction from income, in which case a minimum of 5 years’ tax returns shall be required. Income should be
annualized and divided by 12 to arrive at monthly amounts.
** All claimed deductions should be annualized and divided by 12 to arrive at monthly amounts.
*** Deductions for taxes will be based on the annualized income and the number of exemptions provided by law.
**** The increased cost to the parent for health insurance for the child(ren) of the parent shall be allowed as a
deduction from gross income. The parent requesting an adjustment for health insurance premiums must submit proof
of the cost of the premium.
***** 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.
LUCERO v. LUCERO 	723
Cite as 16 Neb. App. 706