Metcalf v. Metcalf

that he was prejudiced by either of his counsel’s alleged defi-
cient performance. Thomas’ request for postconviction relief
was therefore properly denied by the district court.
A ffirmed.
mccormAck, J., participating on briefs.
kenneth ross metcAlf, AppellAnt, v.
ritA Jo metcAlf, Appellee .
769 N.W.2d 386
Filed August 7, 2009. 	No. S-07-1346.
1. Modification of Decree: Appeal and Error. 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.
2. Modification of Decree: Alimony: Good Cause: Words and Phrases. Pursuant
to Neb. Rev. Stat. § 42-365 (Reissue 2008), alimony orders may be modified
or revoked for good cause shown. Good cause means a material and substantial
change in circumstances and depends upon the circumstances of each case.
3. Modification of Decree: Alimony: Good Cause. Good cause is demonstrated by
a material change in circumstances, but any changes in circumstances which were
within the contemplation of the parties at the time of the decree, or that were
accomplished by the mere passage of time, do not justify a change or modifica-
tion of an alimony order.
4. Modification of Decree: Alimony: Proof. The moving party has the burden of
demonstrating a material and substantial change in circumstances which would
justify the modification of an alimony award.
5. Modification of Decree. To determine whether there has been a material and
substantial change in circumstances warranting modification of a divorce decree,
a trial court should compare the financial circumstances of the parties at the time
of the divorce decree, or last modification of the decree, with their circumstances
at the time the modification at issue was sought.
6. Modification of Decree: Alimony. In cases where there has been a previous
attempt to modify support, the court must first consider whether circumstances
have changed since the most recent request for modification. But when consider-
ing whether there has been a material and substantial change in circumstances
justifying modification, the court will consider the change in circumstances since
the date of the last order establishing or modifying alimony.
Petition for further review from the Court of Appeals,
irwin, moore, and cAssel, Judges, on appeal thereto from the
258 	278 NeBRASkA RePoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

District Court for Lancaster County, Jeffre cheuvront, Judge.
Judgment of Court of Appeals affirmed.
Paul e. Galter, of Butler, Galter, o’Brien & Boehm, for
appellant.
kristina M. Teague and Donald H. Bowman, of Bowman &
krieger, for appellee.
heAvicAn, 	c.J., 	wright, 	connolly, 	stephAn, 	and
mccormAck , JJ.
mccormAck , J.
NATURe oF CASe
kenneth Ross Metcalf filed a complaint to modify, seeking
a reduction in his alimony obligation. The district court denied
his complaint, and a few months later, kenneth filed a second
complaint to modify, again seeking a reduction in his alimony
obligation. The district court denied the second complaint,
concluding that since the denial of kenneth’s first complaint,
he failed to show that there had been a material change in
circumstances warranting a reduction in his alimony. kenneth
appealed, and the Nebraska Court of Appeals affirmed. We
granted kenneth’s petition for further review.
BACkGRoUND
kenneth and Rita Jo Metcalf were divorced in 1999, and
in the decree of dissolution entered on March 18, 1999, the
district court ordered kenneth to pay Rita alimony of $2,000
per month for a period of 120 months beginning April 1. In the
original dissolution decree, kenneth’s monthly gross income
was determined to be $8,211 per month, or $98,532 per year.
Rita’s income was determined to be $1,337 per month, or
$16,044 per year.
on March 31, 2005, kenneth filed a complaint seeking a
reduction of his alimony obligation, alleging that since 1999,
his income decreased and Rita’s income increased. The court
held a hearing on the matter on December 20, 2005, and on
January 26, 2006, the court entered an order denying modi-
fication. The court concluded that kenneth failed to prove a
MeTCALF v. MeTCALF 	259
Cite as 278 Neb. 258

material and substantial change in circumstances had occurred
to warrant modification. kenneth did not appeal this order, but
instead, on March 15, he filed a second complaint for modifi-
cation of alimony.
The district court held an evidentiary hearing regarding
kenneth’s second complaint to modify alimony. Rita filed a
motion in limine asking the court to exclude any evidence pre-
sented at the first modification hearing that would show that
there had been a material change in circumstances warranting a
reduction in alimony. Rita asserted that any such evidence was
barred by collateral estoppel. The court limited the evidence at
the second hearing, allowing only evidence of changes which
occurred after December 20, 2005, the date the first hearing
was held.
An evidentiary hearing was held before the district court
in the current modification proceedings on october 15, 2007.
kenneth has worked as a chiropractic physician for 23 years.
kenneth is currently married, and his wife is employed as
a nurse. kenneth testified with respect to his current health,
indicating that he has issues with “arthritic changes” in his
knees and hands which limit him to a degree in his work as
a chiropractor and that he has recently experienced problems
with dizziness. While kenneth had health insurance at the time
of the divorce in 1999, he did not have health insurance at the
time of the second modification hearing, because he does not
have funds to pay for insurance.
Before becoming a chiropractor, kenneth was a licensed
funeral director and embalmer. At the time of the second
modification hearing, kenneth had investigated other employ-
ment with three local funeral firms because of the diminish-
ing income in his current profession. kenneth hoped to find
employment within the limitations of his current physical
issues, but he has not been able to find employment with a
funeral firm that would eliminate the need for lifting and carry-
ing associated with that business.
At the second modification hearing, the court took judicial
notice of the original divorce decree and certain other exhibits,
which were received into evidence at the first modification
hearing. These exhibits show that kenneth’s average yearly
260 	278 NeBRASkA RePoRTS

income for 1996 through 2004 was $112,703 ($114,918 in
1996, $98,533 in 1997, $95,000 in 1998, $99,787 in 1999,
$140,981 in 2001, $159,091 in 2002, $44,070 in 2003, and
$149,244 in 2004; no income for 2000 was shown on the
exhibit). The court also took judicial notice of kenneth’s 2004
tax return, showing income of $149,244, and a financial state-
ment kenneth submitted to his bank dated May 24, 2005,
which showed that kenneth’s income was $80,000.
At the second modification hearing, kenneth introduced his
2005 and 2006 tax returns into evidence. The returns show that
his net income from self-employment was $50,047 in 2005 and
$50,293 in 2006. kenneth admitted that his 2005 and 2006 tax
returns did not show a change in his income, but kenneth testi-
fied that he discovered some accounting errors which affected
his 2005 income and expense figures.
According to kenneth, his 2005 income was less than what
his income tax return showed, because he incurred $20,000 in
unpaid business debts in 2005. kenneth testified that he did not
have the money to pay those expenses but had he been able
to, his income would have been less than what his 2005 return
showed. kenneth, however, was unable to produce any receipts
proving that such unpaid debts existed. These debts were ulti-
mately discharged in bankruptcy.
kenneth also testified that his employee made a billing
error in 2004 and 2005, the result of which was that kenneth’s
computer erroneously showed that billings were sent when in
fact they were not. According to kenneth, his 2006 income
included money not earned in 2006 but received as a result
of sending out bills that should have been sent out in 2004
or 2005. kenneth testified that approximately half of his
2006 income was income that was actually earned in 2004
or 2005.
kenneth also explained how his financial state had changed
since the first modification proceeding. kenneth had a retire-
ment account of approximately $35,000, but he cashed it in
incrementally starting in 2003, attempting to avoid bank-
ruptcy. kenneth eventually filed a chapter 7 bankruptcy
petition and received a discharge. However, kenneth still
owes $21,000 to the Internal Revenue Service that was not
MeTCALF v. MeTCALF 	261
Cite as 278 Neb. 258

discharged, and he is making payments of $250 per month to
pay off that debt.
Additionally, kenneth deeded his home back to the mortgage
lender after foreclosure proceedings were initiated, and he gave
back the 2004 Dodge Durango he was leasing. He now drives
a 1996 Toyota Camry with approximately 140,000 miles on it.
Because of kenneth’s alleged decrease in income, kenneth no
longer has health insurance. kenneth also had to eliminate his
full-time employee position in 2006. Further, kenneth testi-
fied that he has continued to experience a gradual decline in
new patients and services rendered, but kenneth provided no
explanation as to why he was losing patients. At the time of the
second hearing, kenneth testified that his net income was about
$3,000 per month.
kenneth was also questioned about his criminal history.
In 1995, kenneth was found guilty of debauching a minor, a
Class I misdemeanor. Rita argues that if kenneth’s income has
decreased, it is likely a result of his criminal history, which is a
result of his own wrongdoing, and that therefore, modification
is not warranted.
At the second modification hearing, Rita testified about her
financial situation, and the court took judicial notice of Rita’s
income tax returns for 2003 and 2004. Her tax returns show
income of $39,267 for 2003 and $64,708 for 2004. These
amounts do not include the $24,000 in alimony Rita received
in each of those years. Rita’s net income in 2005 was $9,408,
and in 2006, Rita suffered a net loss of $37,867. In the first 8
months of 2007, Rita’s net income was $10,708. Rita cashed in
her IRA in the amount of $23,800 to meet her monthly living
expenses of $3,633.
At the time of the parties’ divorce, Rita owned a beauty
salon. Thereafter, Rita owned a drycleaning business, and in
2005, she and her son opened a coffee shop. Since then, they
opened another coffee shop. Rita and her son also acquired
some investment property which cost $195,000. Rita testified
that she relied upon her alimony award when she purchased the
investment property and that without the alimony, she would
not be able to make payments of both interest and principal.
A few years before the second modification hearing, Rita
262 	278 NeBRASkA RePoRTS

refinanced her home to obtain part of the money for the land
purchase, borrowing $110,000 against her house.
After considering the evidence, the court entered an order
dismissing kenneth’s second complaint to modify alimony.
The court concluded that because kenneth failed to appeal the
January 2006 order, which dismissed his first complaint for
modification, kenneth was required to show a material change
in circumstances since January 26, 2006. The court also con-
cluded that kenneth failed to show a material change in cir-
cumstances in the 2 to 3 months between January and March
2006. kenneth appealed, and the Court of Appeals affirmed,
concluding that the district court was correct to require kenneth
to show a material change in circumstances since the time his
prior request for modification was denied.1
The Court of Appeals concluded that the district court was
correct to require kenneth to show a material change in circum-
stances since the time his prior request for modification was
denied. To determine whether there has been a material and
substantial change in circumstances warranting modification
of a divorce decree, a trial court should compare the financial
circumstances of the parties at the time of the divorce decree,
or last modification of the decree, with their circumstances at
the time the modification at issue was sought.2 The Court of
Appeals, in denying kenneth’s second request for modification,
relied in part on this court’s decision in Simpson v. Simpson.3 In
Simpson, the former wife sought, on two occasions, to increase
her former husband’s alimony from that ordered in the decree.
Her first attempt was unsuccessful. In the second modification
proceeding, the trial court considered whether there had been a
change in circumstances since the denial of the first modifica-
tion attempt. We affirmed.
In this case, the Court of Appeals’ dissenting opinion pointed
out that the issue of whether there must be a change since
the most recent attempted modification was not specifically
1 Metcalf v. Metcalf, 17 Neb. App. 138, 757 N.W.2d 124 (2008).
2 Finney v. Finney, 273 Neb. 436, 730 N.W.2d 351 (2007).
3 Simpson v. Simpson, 275 Neb. 152, 744 N.W.2d 710 (2008).
MeTCALF v. MeTCALF 	263
Cite as 278 Neb. 258

addressed by this court in Simpson. Moreover, the dissent-
ing opinion stated that a party should be required to show a
material change in circumstances since the time of the origi-
nal decree or since the most recent successful modification of
the decree.
The Court of Appeals also relied on principles of collateral
estoppel. The Court of Appeals noted that under the doctrine
of collateral estoppel, when an issue of ultimate fact has been
determined by a valid and final judgment, that issue cannot be
relitigated between the same parties or their privities in any
future litigation. The dissenting opinion disagreed, stating that
collateral estoppel did not apply. The dissent stated: “The issue
being raised by kenneth at this time is whether there has been
a material change in circumstances between the time of the
original decree and the present action, which is not the issue
that was litigated and resolved in 2006.”4 Ultimately, the Court
of Appeals concluded that the district court did not err in limit-
ing its review to whether a material change in circumstances
had occurred since the last modification proceeding.
ASSIGNMeNTS oF eRRoR
kenneth argues, restated and consolidated, that the Court
of Appeals erred in concluding (1) that there had not been a
change in circumstances warranting a reduction in his alimony
obligation and (2) that he needed to show a material change
in circumstances since January 26, 2006, rather than a mate-
rial change in circumstances since March 18, 1999, when the
decree of dissolution was entered.
STANDARD oF ReVIeW
[1] 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.5
4 Metcalf v. Metcalf, supra note 1, 17 Neb. App. at 148, 757 N.W.2d at 131
(Irwin, Judge, dissenting).
5 Finney v. Finney, supra note 2.
264 	278 NeBRASkA RePoRTS

ANALYSIS
[2-4] Alimony orders may be modified or revoked for good
cause shown.6 Good cause means a material and substantial
change in circumstances and depends upon the circumstances
of each case.7 Good cause is demonstrated by a material
change in circumstances, but any changes in circumstances
which were within the contemplation of the parties at the time
of the decree, or that were accomplished by the mere passage
of time, do not justify a change or modification of an alimony
order.8 The moving party has the burden of demonstrating a
material and substantial change in circumstances which would
justify the modification of an alimony award.9
[5] To determine whether there has been a material and sub-
stantial change in circumstances warranting modification of a
divorce decree, a trial court should compare the financial cir-
cumstances of the parties at the time of the divorce decree, or
last modification of the decree, with their circumstances at the
time the modification at issue was sought.10 However, there is
some confusion about the time period that must be considered
to determine whether there has been a change in circumstances
in cases where there has been a previous attempt to modify
alimony prior to the current motion. This is an issue of first
impression for this court.
[6] We determine that in cases where there has been a pre-
vious attempt to modify support, the court must first consider
whether circumstances have changed since the most recent
request for modification. But when considering whether there
has been a material and substantial change in circumstances
justifying modification, the court will consider the change in
circumstances since the date of the last order establishing or
6 Id.; Neb. Rev. Stat. § 42-365 (Reissue 2008).
7 Finney v. Finney, supra note 2.
8 Marcovitz v. Rogers, 276 Neb. 199, 752 N.W.2d 605 (2008).
9 Finney v. Finney, supra note 2.
10 Simpson v. Simpson, supra note 3; Finney v. Finney, supra note 2.
MeTCALF v. MeTCALF 	265
Cite as 278 Neb. 258

modifying alimony.11 In other words, a judgment for alimony
may be modified only upon a showing of facts or circum-
stances that have changed since the last order granting or
denying modification was entered. But once some change has
been established since the last request, the analysis focuses
on the change in circumstances since alimony was originally
awarded or last modified. We adopt this rule because it recog-
nizes the force of res judicata; modification will be considered
only when there has been a change in circumstances since the
last request for modification. But if there has been no change,
modification is not justified, because the request is essentially
the same as the last request.12
In this case, the Court of Appeals’ majority concluded
that the issue of whether a change in circumstances occurred
between the time of the entry of the decree and the modifica-
tion proceeding was fully litigated. And as such, the Court of
Appeals’ majority held that the district court did not err in
limiting its review to whether a material change in circum-
stances had occurred since the last modification proceeding.
We agree with the Court of Appeals’ majority that the district
court was correct by limiting its review to only the change in
circumstances occurring since the first modification proceed-
ing. However, any change in circumstances occurring since the
first modification proceeding should have been compared to
the original decree when determining whether the change in
circumstances was a material and substantial change warrant-
ing modification.
Any changes in kenneth’s circumstances that occurred prior
to the first modification proceeding are settled, and the doc-
trine of res judicata prevents the district court from consider-
ing any change based on those circumstances.13 But the ini-
tial alimony award was not affected by the first modification
11 See, Ebach v. Ebach, 757 N.W.2d 34 (N.D. 2008); Demartino v. Demartino,
79 Conn. App. 488, 830 A.2d 394 (2003).
12 See Bowe v. Bowe, 557 So. 2d 793 (Miss. 1990).
13 See Walters v. Walters, 177 Neb. 731, 131 N.W.2d 166 (1964). See, also,
Dunlap v. Dunlap, 145 Neb. 735, 18 N.W.2d 51 (1945).
266 	278 NeBRASkA RePoRTS

proceeding, and kenneth is currently paying alimony based
upon the circumstances as they existed in 1999. As such, the
change in circumstances, if any, occurring after the first modi-
fication proceeding must be compared to the parties’ financial
circumstances at the time of the initial divorce decree to deter-
mine whether there has been a material and substantial change
in circumstances warranting a modification of kenneth’s ali-
mony obligation.
In this case, the district court and the Court of Appeals
concluded that the parties’ circumstances were about the same
as they were at the first modification proceeding, and thus,
the Court of Appeals concluded that kenneth failed to estab-
lish that there was any change in circumstances from the first
modification to the current modification. The establishment
of changed circumstances is necessary in order to modify
alimony. our de novo review of the record reveals that the dis-
trict court’s determination that kenneth failed to show that his
circumstances changed from the previous modification to the
current modification proceeding was not an abuse of discretion.
As such, we conclude that because nothing has changed since
the first modification proceeding, kenneth’s motion to modify
alimony was properly denied.
CoNCLUSIoN
We conclude that when there has been one or more previ-
ous modification proceedings, the court should first determine
whether there has been any change in circumstances arising
after the most recent modification proceeding. If circumstances
have changed since the time of the most recent request for
modification, then the court should consider the change in cir-
cumstances since the original decree or order affecting alimony
to determine whether there has been a material and substantial
change. If there has been no change between the most recent
modification request and the current request, the current modi-
fication is barred by res judicata. Based on our review of the
record, kenneth has failed to prove that the circumstances have
changed since the most recent modification request. Since the
circumstances are the same as they were at the prior modifica-
tion proceeding, kenneth’s request is barred by res judicata.
MeTCALF v. MeTCALF 	267
Cite as 278 Neb. 258

For different reasons from those stated by the Court of Appeals,
we conclude that kenneth’s application to modify alimony was
properly denied, and we affirm the judgment of the Court of
Appeals to that effect.
A ffirmed.
miller-lermAn, J., participating on briefs.
gerrArd, J., not participating.
stAte of nebrAskA, Appellee , v.
dAvid l. dunster , AppellAnt.
769 N.W.2d 401
Filed August 7, 2009. 	No. S-08-227.
1. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a
postconviction proceeding is procedurally barred is a question of law. When
reviewing a question of law, an appellate court resolves the question indepen-
dently of the lower court’s conclusion.
2. Moot Question: Jurisdiction: Appeal and Error. While mootness does not
prevent appellate jurisdiction, because mootness is a justiciability doctrine that
operates to prevent courts from exercising jurisdiction, an appellate court reviews
mootness determinations under the same standard of review as other jurisdic-
tional questions.
3. Jurisdiction: Appeal and Error. When a jurisdictional question does not involve
a factual dispute, an appellate court determines the issue as a matter of law.
4. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel
provided ineffective assistance presents a mixed question of law and fact. When
reviewing a claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. With regard to the questions
of counsel’s performance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
ed. 2d 674 (1984), an appellate court reviews such legal determinations indepen-
dently of the lower court’s decision.
5. Statutes: Time. While procedural statutes apply to pending litigation, new pro-
cedural statutes have no retroactive effect upon any steps that may have been
taken in an action before such statutes were effective.
6. Moot Question. A case becomes moot when the issues initially presented in the
litigation cease to exist, when the litigants lack a legally cognizable interest in the
outcome of litigation, or when the litigants seek to determine a question which
does not rest upon existing facts or rights, in which the issues presented are no
longer alive.
7. Constitutional Law: Right to Counsel. There is no constitutional right to effec-
tive assistance of standby counsel.
268 	278 NeBRASkA RePoRTS