Simpson v. Simpson

152 	275 Nebraska reports
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. see id.
the district court’s order was not arbitrary, capricious, or
unreasonable. big John’s did not demonstrate any compelling
reason for a waiver except to argue that it would be impacted
financially. the act does not identify financial burden as a
compelling reason for a waiver. In addition, big John’s did not
show that the health and comfort of nonsmokers would not be
significantly affected if a waiver were granted. simply provid-
ing warnings to persons who enter the building does not protect
them from smoke. and the claim that 90 percent of the custom-
ers smoke does not support a finding that the health and com-
fort of the other 10 percent would not be significantly affected
if a waiver were granted.
prout testified that he had made no attempt to comply with
the act’s requirements. In fact, he did not believe it would be
possible to come into compliance by modifying the pool halls.
however, Falter, the Department’s representative, testified that
big John’s could divide the omaha building into smoking and
nonsmoking areas and thereby comply with the act.
CoNCLUsIoN
We find no error on the record. the record shows that the dis-
trict court’s affirmance of the Department’s denial of a waiver
conformed to the law, was supported by competent evidence,
and was not arbitrary, capricious, or unreasonable. the judg-
ment of the district court is affirmed.
A ffirmed .
lAnA S ue S imPSon , APPellAnT, v .
roberT euGene S imPSon , APPellee .
744 N.W.2d 710
Filed February 22, 2008. 	No. s-06-1461.
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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

2. Judges: Words and Phrases. a judicial abuse of discretion exists when reasons
or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted for disposition.
3. Child Support: Rules of the Supreme Court. In general, child support payments
should be set according to the Nebraska Child support Guidelines.
4. ____: ____. the Nebraska Child support Guidelines provide that in calculating
child support, a court must consider the total monthly income of both parties.
5. Modification of Decree: Alimony: Good Cause: Words and Phrases. pursuant
to Neb. rev. stat. § 42-365 (reissue 2004), alimony orders may be modified
or revoked for good cause shown. Good cause means a material and substantial
change in circumstances and depends on the circumstances of each case.
6. 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.
7. 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.
appeal from the District Court for scotts bluff County:
rAndAll l. liPPSTreu, Judge. affirmed.
Jeffrey L. hansen and Margaret a. olsen, of simmons olsen
Law Firm, p.C., for appellant.
James W. ellison and James M. Mathis, of kovarik, ellison &
Mathis, p.C., for appellee.
H eAvicAn , 	c.J., 	W riGHT, 	connolly , 	G errArd , 	STePHAn ,
mccormAck , and miller -lermAn , JJ.
mccormAck , J.
NatUre oF Case
Lana sue simpson appeals from an order of the district court
denying her request to modify alimony. she also appeals the
district court’s refusal to include expatriate compensation in
the gross monthly income of her former spouse, robert eugene
simpson, for purposes of modifying robert’s child support and
alimony obligations.
baCkGroUND
on December 30, 2002, an order was entered by the dis-
trict court dissolving Lana and robert’s marriage. Under the
sIMpsoN v. sIMpsoN 	153
Cite as 275 Neb. 152

154 	275 Nebraska reports
terms of the decree, Lana was awarded custody of the parties’
children, born May 10, 1988, and august 10, 1990. When
the decree of dissolution was entered, robert’s gross monthly
income was $10,833 and Lana’s gross monthly income was
$1,577.74. robert was ordered to pay child support in the
amount of $1,617 per month for two children and $1,109.35 per
month for one child. robert was also ordered to pay alimony in
the amount of $1,250 per month for 72 months.
In october 2004, Lana requested a modification of the
divorce decree. among other things, Lana sought to increase
robert’s child support and alimony obligations. In a January
2005 order, the district court found that since the entry of the
decree of dissolution, there had been a material change in the
parties’ respective incomes. at that time, Lana’s annual gross
income was $29,000 and robert’s annual gross income had
increased from $180,000 in 2002 to $325,000 in 2005. the
court held that in light of the parties’ situation and the attendant
circumstances, it was reasonable for robert to pay child sup-
port in the amount of $3,250 per month for two children, and
$2,250 per month for one child. the court further found, how-
ever, that robert’s substantial increase in income was not a suf-
ficient ground to increase alimony payments. the court noted
that Lana had failed to meet her burden of proof that additional
funds were necessary to reasonably meet her current needs.
In May 2006, Lana again sought a modification of robert’s
child 	support 	and 	alimony 	obligations. 	Lana 	alleged 	that
robert’s income had increased significantly and that because
she had returned to school full time, she did not have the same
income as she did in January 2005.
at that time, robert was working for Lehman brothers,
Inc., in Mumbai, India. Under the terms of his international
employment, robert was guaranteed minimum total compen-
sation of $550,000 in salary and bonuses for the 2006 work
year. as part of his compensation package, robert received
an annual base salary of $175,000 payable in equal monthly
increments. the balance of his minimum total compensation
was to be paid as a bonus on or about January 31, 2007. robert
also received additional compensation described as “expatri-
ate benefits/allowances.” expatriate compensation is additional

compensation provided to offset the differences in costs of liv-
ing outside an employee’s home country. this pay is reflected
on robert’s pay stubs as “Choice $” and bonus special 2006.
“Choice $” is defined by Lehman brothers as “[a] cash payment
designed to defray the material difference in living expenses in
Mumbai (relative to the cost of living/housing in the New York
metropolitan area).” the bonus special 2006 compensation is
designed to defray the even greater additional costs associated
with living in Mumbai in light of Nebraska’s lower cost of liv-
ing and housing in comparison to the New York metropolitan
area. the record reflects that in January 2006, robert received
$7,112.39 in “Choice $” compensation and $3,225.81 in bonus
special 2006 compensation. In February 2006, robert received
$10,022 in “Choice $” compensation and $4,000 in bonus
special 2006 compensation. From March through september
2006, robert received in each of those months, $10,504.54
in “Choice $” compensation and $4,000 in bonus special
2006 compensation.
In January 2005, Lana was employed full time and had a
gross monthly income of $2,416.67. In her 2004 modification
action, Lana estimated average monthly living expenses were
$4,944 for herself and the parties’ two children. In November
2005, Lana voluntarily left her employment and remained
unemployed at the time of the court’s November 2006 order.
In the present action to modify, Lana claims that her average
monthly living expenses increased to $9,123.34.
In its November 2006 order, the district court found that
robert’s expatriate compensation was not available to pay
child support, but, rather, was necessary for robert’s addi-
tional cost of living in India. the court explained that robert’s
expatriate compensation is “analogous to the deviation recog-
nized in Guideline C(1), i.e. extraordinary expenses of either
parent or child.” accordingly, the district court determined
that robert’s gross income for child support calculations was
$550,000 annually, or $45,833.33 per month. the district court
also determined that annual income in the amount of $29,000
should be attributed to Lana. the court further determined that
Lana had provided no documentation to support her claim that
her living expenses had increased so substantially. In light of
sIMpsoN v. sIMpsoN 	155
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156 	275 Nebraska reports
robert’s increased income, the district court increased robert’s
child support obligation to $4,250 per month for two children
and $3,250 per month for one child. the court denied, how-
ever, Lana’s request to increase robert’s alimony obligation.
Lana appeals.
assIGNMeNts oF error
Lana assigns, restated, that the district court erred in (1)
failing to include expatriate compensation in robert’s gross
monthly income for purposes of child support and alimony
and (2) failing to find good cause to increase robert’s alimony
obligation to Lana.
staNDarD oF reVIeW
[1,2] 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.1 a judicial abuse of discretion
exists when reasons or rulings of a trial judge are clearly unten-
able, unfairly depriving a litigant of a substantial right and
denying just results in matters submitted for disposition.2
aNaLYsIs
exPATriATe comPenSATion
Lana contends that the district court erred in failing to include
robert’s expatriate compensation in robert’s gross monthly
income for purposes of child support and alimony.
a review of robert’s pay stubs reveals that his expatri-
ate compensation is counted as income. paragraph D of the
Nebraska Child support Guidelines defines total monthly income
as income “derived from all sources, except all means-tested
public assistance benefits which includes any earned income tax
credit and payments received for children of prior marriages.”
the guidelines are very specific—all income from all sources is
to be included except for those incomes specifically excluded.
Not excluded under the guidelines is compensation meant to
1 Finney v. Finney, 273 Neb. 436, 730 N.W.2d 351 (2007).
2 Pope v. Pope, 251 Neb. 773, 559 N.W.2d 192 (1997).

offset a spouse’s increased cost of living while residing in a
different locale. We conclude, therefore, that robert’s expatriate
compensation is income for purposes of support calculations.
cHild S uPPorT
[3,4] In general, child support payments should be set accord-
ing to the guidelines.3 the guidelines provide that in calculating
child support, a court must consider the total monthly income
of both parties.4 as explained above, this includes robert’s
expatriate income.
to 	determine 	monthly 	support 	amounts, 	the 	combined
monthly net income of both parties is factored into table 1 of
the guidelines to establish the appropriate level of support.5 at
the time of the district court’s order, table 1 did not provide
for support amounts when the combined net monthly income
exceeds $10,000. paragraph C(3) of the guidelines provided
that when total net income exceeds $10,000, child support
“may be more but shall not be less than the amount which
would be computed using the $10,000 monthly income unless
other permissible deviations exist.” We have held that “‘total
monthly child support calculations which exceed the combined
net monthly income provided for in the guidelines should be left
to the discretion of the trial court and affirmed absent an abuse
of discretion.’”6
as pointed out by the district court, the evidence reflects that
the additional living expenses incurred by robert while living in
Mumbai are significant. among those expenses are rental pay-
ments of $7,905 per month. robert’s employer would not allow
him to drive a car in India, and he therefore had to employ a
full-time driver. also, each trip to and from the United states
for holidays, visitation, et cetera, cost $3,000 to $6,000 per
trip in airfare. these are additional expenses that robert would
3 State on behalf of A.E. v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340 (2007).
see Neb. rev. stat. § 42-364.16 (reissue 2004).
4 see State on behalf of A.E. v. Buckhalter, supra note 3.
5 Id.
6 Id. at 455, 730 N.W.2d at 350, quoting Faaborg v. Faaborg, 254 Neb. 501,
576 N.W.2d 826 (1998).
sIMpsoN v. sIMpsoN 	157
Cite as 275 Neb. 152

158 	275 Nebraska reports
not incur while residing in Nebraska, and the record reflects
that these additional expenses are offset by robert’s expatriate
compensation. Under the facts of this case, we cannot say that
the district court abused its discretion when it determined that
robert’s expatriate compensation is not reasonably available for
child support payments.
A limony
Finally, Lana contends that the district court erred in refusing
to increase robert’s alimony obligation.
[5-7] pursuant to Neb. rev. stat. § 42-365 (reissue 2004),
alimony orders may be modified or revoked for good cause
shown.7 Good cause means a material and substantial change in
circumstances and depends on the circumstances of each case.8
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 modi-
fication of the decree, with their circumstances at the time
the modification at issue was sought.9 the moving party has
the burden of demonstrating a material and substantial change
in circumstances which would justify the modification of an
alimony award.10
In 2005, at the time of the last modification of the parties’
decree, Lana had an annual gross income of approximately
$29,000 and robert had an annual gross income of $325,000.
since that time, both parties have seen significant changes in
their financial situations. Lana voluntarily left her employment
in November 2005 and presently remains unemployed. she is,
however, completing her bachelor’s degree via online classes
through the University of phoenix. robert, on the other hand,
has seen a significant increase in his annual gross income. Lana
also claims that her living expenses have increased. When she
first sought modification in 2004, Lana estimated that her living
7 Finney v. Finney, supra note 1.
8 Id.
9 see id.
10 Id.

expenses were $4,944 for her and the parties’ two children.
In the present action, Lana claims her average monthly living
expenses are $9,123.34, almost double what they were 2 years
ago. the changes in the parties’ financial situations is the basis
for Lana’s request for modification of alimony.
We have stated that an increase in income is a circumstance
that may be considered in determining whether alimony should
be modified.11
In Desjardins v. Desjardins,12 we acknowledged that an
increase in a party’s income is a circumstance which may be
considered in determining whether alimony should be modi-
fied. We noted, however, that a party’s increase in income is
considered in conjunction with changes in the other party’s
situation. the record in the present case reveals that Lana did
not present any evidence to substantiate her purported increase
in living expenses. Lana presented only testimony and a current
expense itemization that is unsupported by other documentary
evidence. a review of the itemizations from the previous modi-
fication proceeding and this proceeding reflect that the increase
in Lana’s living expenses is primarily attributable to the parties’
children, particularly the college expenses for the oldest child
who had reached majority at the time of the hearing. excluding
the children’s separate expenses, Lana’s current living expenses
are substantially the same as they were at the time of the last
modification proceeding.
the record further reveals that the only other substantial
change in Lana’s financial situation is her present lack of
employment. While her initiative to further her education is
commendable, the record reveals that her decision to leave
her employment was not because of her decision to return to
school. Lana testified that she chose to leave her employment
for a “multitude” of reasons. she testified, “basically it was my
values were very different than what [my employer’s] values
were, or as I gathered it.”
We have stated that a petition to modify alimony will be
denied if the change in financial condition is due to the fault
11 see Northwall v. Northwall, 238 Neb. 76, 469 N.W.2d 136 (1991).
12 Desjardins v. Desjardins, 239 Neb. 878, 479 N.W.2d 451 (1992).
sIMpsoN v. sIMpsoN 	159
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160 	275 Nebraska reports
or voluntary wastage or dissipation of one’s talents or assets.13
although Lana is presently attending college, her decision to
leave her employment, by her own admission, was not to pur-
sue further education, but, rather, personal differences with her
employer. We do not consider this to be a material and substan-
tial change of circumstances.
although an increase in the income of the spouse paying
maintenance is a relevant factor for the trial court to consider, it
alone does not require the court to modify the amount of mainte-
nance previously ordered.14 In this case, the district court found
that Lana had not proved her claim that her living expenses
had increased from $4,944 to $9,123.34 per month. We note
that most, if not all, of the increase she seeks is for additional
expenses for the parties’ children. the child support, however,
had increased for two children from $1,617 in December 2002,
to $3,250 in January 2005, and then to $4,250 in November
2006. “‘the ultimate issue is whether . . . changes are suf-
ficiently substantial and continuing so as to make the original
terms of the decree unreasonable.’”15 We have stated that ali-
mony should not be used to equalize the incomes of the parties
or to punish one of the parties.16 Under the facts of this case, we
conclude that the evidence of robert’s increased income does
not constitute, in and of itself, a material and substantial change
in circumstances, without a proven increase in Lana’s living
expenses. accordingly, we affirm the order of the district court.
CoNCLUsIoN
For the reasons discussed above, we conclude that robert’s
expatriate compensation is income for purposes of support cal-
culations. We further determine, however, that the district court
did not abuse its discretion in refusing to increase robert’s
child support and alimony obligations.
A ffirmed .
13 Pope v. Pope, supra note 2.
14 Swartz v. Johnson, 192 s.W.3d 752 (Mo. app. 2006).
15 Id. at 755, quoting Rustemeyer v. Rustemeyer, 148 s.W.3d 867 (Mo. app.
2004).
16 Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d 600 (1994).