Rutherford v. Rutherford

rutherford v. rutherford 	301
Cite as 277 Neb. 301
of the december 8, 2004, order. With respect to the latter, the
record shows that any award Stueve receives for his shoulder
injury is effectively due to Krafka’s work. In determining a
reasonable amount on any future award for the shoulder injury,
the Workers’ Compensation Court shall use the factors out-
lined in this opinion and found in the Code of Professional
responsibility as now included in the Nebraska rules of
Professional Conduct.
CoNCLuSIoN
the review panel order of April 2, 2008, affirming the
November 1, 2007, order of the single judge is reversed. the
cause is remanded to the review panel to remand the matter to
the single judge with directions to hold a hearing to determine
the amount Krafka has been paid and the amount still owed to
him, consistent with this opinion.
R eveRsed and Remanded with diRections.
sandRa s. RutheRfoRd, appellee , v.
GReGoRy a. RutheRfoRd, appellant.
761 N.W.2d 922
filed March 6, 2009. 	No. S-07-1088.
1. Modification of Decree: Child Support. Modification of child support is
entrusted to the discretion of the trial court.
2. Modification of Decree: Child Support: Appeal and Error. An appellate court
reviews proceedings for modification of child support de novo on the record and
will affirm the judgment of the trial court absent an abuse of discretion.
3. 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.
4. Child Support: Rules of the Supreme Court. In the event of a deviation from
the Nebraska Child Support Guidelines, the trial court should state the amount of
support that would have been required under the guidelines absent the deviation
and include the reason for the deviation in the findings portion of the decree or
order, or complete and file worksheet 5 in the court file.
5. Child Support: Rules of the Supreme Court: Records: Appeal and Error.
the record on appeal from an order imposing or modifying child support shall
include any applicable Nebraska Child Support Guidelines worksheets with the
trial court’s order.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

Appeal from the district Court for douglas County: Joseph
s. tRoia, Judge. remanded with directions.
Clay M. rogers and Kevin J. McCoy, of dwyer, Smith,
Gardner, Lazer, Pohren & rogers, L.L.P., and david L. herzog
for appellant.
donald A. roberts, of Lustgarten & roberts, P.C., L.L.o.,
for appellee.
wRiGht, connolly, G eRRaRd, stephan, mccoRmack , and
milleR-leRman, JJ.
peR cuRiam.
NAture of CASe
Gregory A. rutherford (Greg) and Sandra S. rutherford
divorced in 1998, and Greg was ordered to pay child support
for their three children. on June 27, 2005, Sandra filed a com-
plaint for modification of child support. the douglas County
district Court increased the child support retroactive to July
2005, and Greg appeals.
In this opinion, we advise the parties and direct the trial
courts that in the future, this court and the Nebraska Court of
Appeals will summarily remand all appeals involving child
support or modification of child support that do not contain the
appropriate worksheets relative to child support or child sup-
port modification.
fACtS
Greg and Sandra were married in omaha, Nebraska, on
September 15, 1984, and had three children, born in November
1987, April 1991, and June 1994. Sandra worked as a registered
nurse, and Greg was president of tagge rutherford financial
Group 	and 	owner 	of 	rutherford 	Investment 	Management
Company (rIMC).
When the parties divorced, Sandra was awarded custody
of the children. Greg was ordered to pay monthly child sup-
port of $2,100 for three children, $1,900 for two children, and
$1,750 for one child. he was also ordered to pay alimony for
78 months or until Sandra’s death or remarriage. A property
302 	277 NebrASKA rePortS

settlement agreement was approved which required Greg to pay
all health insurance premiums and 100 percent of uninsured
medical expenses for the children.
After Sandra remarried in 2005, she filed a complaint for
modification of child support. Greg remarried in 2004 and had
two children with his second wife.
following the hearing, the trial court found that Sandra
had a gross salary of $62,400 per year and that Greg’s annual
income was $120,000. because rIMC paid numerous per-
sonal expenses for Greg and his second wife, totaling more
than $200,000 per year, the court adjusted Greg’s income to
$229,000 per year. It deducted 30 percent from each party’s
monthly income for taxes, which resulted in monthly net
incomes of $3,500 for Sandra and $13,300 for Greg, or a com-
bined monthly net income of $16,800. the court determined
that Sandra’s contribution equaled 21 percent and that Greg’s
contribution was 79 percent.
Sandra and Greg each filed a motion for new trial. After
recalculating, the court determined that Greg’s income was
$120,000 per year, but it added expenses paid by rIMC
of $150,000 to arrive at a total annual income for Greg of
$270,000. the court deducted 30 percent from both parties’
gross incomes for taxes and arrived at a total monthly net
income of $19,250 combined. the resulting percentage alloca-
tion was 82 percent for Greg and 18 percent for Sandra.
Greg was ordered to pay $3,382.50 per month for the three
children at the time of the filing of the complaint to modify,
$2,969.22 for two children, and $2,316.46 for one child. the
child support was made retroactive to July 1, 2005. Greg
appeals from the modification. for the reasons set forth, we
remand the cause with directions.
ASSIGNMeNtS of error
Greg assigns the following errors: the trial court abused
its discretion (1) in modifying child support to an amount
unsupported by the record and in setting this amount by
extrapolating from the child support guidelines without evi-
dence of the court’s calculations, (2) in considering only an
increase in Greg’s income without considering the needs of
rutherford v. rutherford 	303
Cite as 277 Neb. 301

the children, and (3) in failing to consider in its support cal-
culations Greg’s payment of all health insurance premiums
and uninsured medical costs, as well as his obligations to his
later-born children.
StANdArd of reVIeW
[1-3] Modification of child support is entrusted to the discre-
tion of the trial court.1 An appellate court reviews proceedings
for modification of child support de novo on the record and
will affirm the judgment of the trial court absent an abuse of
discretion.2 A judicial abuse of discretion exists when reasons
or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition.3
ANALYSIS
the trial court determined that the total monthly net income
of the parties was $19,250 and that Greg’s income accounted
for 82 percent of that amount and Sandra’s income amounted
to 18 percent of the total. Neither party claims any error on the
part of the trial court in determining the monthly net income
or the allocation, and this amount shall be used by the court
on remand. rather, Greg argues that the trial court abused its
discretion in its calculation of the amount of child support he
should pay. Greg argues that the amount was unsupported by
the record and that the court extrapolated the amount from
the child support guidelines but did not provide evidence of
its calculations.
the record does not include any child support worksheet
prepared by the trial court. the order merely states that the
court determined the parties’ respective incomes and then
subtracted 30 percent for taxes to calculate the monthly
net income of each parent. the order says the court then
“extrapolat[ed]” the income figures and used the child sup-
port guidelines.
1 Wilkins v. Wilkins, 269 Neb. 937, 697 N.W.2d 280 (2005).
2 Id.
3 Simpson v. Simpson, 275 Neb. 152, 744 N.W.2d 710 (2008).
304 	277 NebrASKA rePortS

the child support guidelines in effect at the time of the
complaint for modification provided for a maximum combined
monthly income of $10,000. the guidelines stated that if the
total net income exceeded $10,000 monthly, “child support for
amounts in excess of $10,000 monthly [could] be more but
[should] not be less than the amount which would be computed
using the $10,000 monthly income unless other permissible
deviations exist.”4
for a combined monthly income of $10,000, the guidelines
provided that the total child support should be $2,645 for three
children, $2,326 for two children, and $1,654 for one child.
thus, the trial court ordered Greg to pay child support in
excess of the guidelines based on the greater monthly income
of the parties. however, because there is no worksheet in the
record, we do not know why the court awarded the amount of
support it did, except that the court extrapolated the amount set
forth in the guidelines.
All orders concerning child support, including modifica-
tions, should include the appropriate child support worksheets.5
under the guidelines, a deviation in the amount of child sup-
port is allowed “‘whenever the application of the guidelines
in an individual case would be unjust or inappropriate.’”6
“deviations from the guidelines must take into consideration
the best interests of the child.”7
[4] In the event of a deviation from the guidelines, the trial
court should “state the amount of support that would have
been required under the guidelines absent the deviation and
include the reason for the deviation in the findings portion of
the decree or order, or complete and file worksheet 5 in the
court file.”8
the importance of adhering to this requirement has been
repeatedly emphasized by the appellate courts of this
state. See, Brooks v. Brooks, 261 Neb. 289, 622 N.W.2d
4 See Neb. Ct. r. § 4-203(C).
5 See § 4-203.
6 Gress v. Gress, 271 Neb. 122, 129, 710 N.W.2d 318, 326 (2006).
7 Id. at 130, 710 N.W.2d at 327.
8 Jensen v. Jensen, 275 Neb. 921, 929-30, 750 N.W.2d 335, 343 (2008).
rutherford v. rutherford 	305
Cite as 277 Neb. 301

670 (2001); Baratta v. Baratta, 245 Neb. 103, 511 N.W.2d
104 (1994); Lawson v. Pass, 10 Neb. App. 510, 633
N.W.2d 129 (2001); Laubscher v. Laubscher, 8 Neb. App.
648, 599 N.W.2d 853 (1999); State on behalf of Elsasser
v. Fox, 7 Neb. App. 667, 584 N.W.2d 832 (1998). It has
been stated that “the trial courts must show the appellate
courts, and the parties, that they have ‘done the math.’”
Stewart v. Stewart, 9 Neb. App. 431, 434, 613 N.W.2d
486, 489 (2000).9
As noted, in the case at bar, we are unable to determine
what the trial court considered. the court extrapolated from
the guidelines, but we have no evidence of the method used to
calculate the child support. the court did not complete a work-
sheet specifying its calculations and delineating any deviations
it took into consideration.
Greg also argues that the trial court abused its discretion in
failing to consider his obligations to his later-born children.
Greg testified that he has two children with his second wife
and that the children were born in 2005 and 2007. the guide-
lines provide:
An obligor shall not be allowed a reduction in an exist-
ing support order solely because of the birth . . . of subse-
quent children of the obligor; however, a duty to provide
regular support for subsequent children may be raised as
a defense to an action for an upward modification of such
existing support order.10
In Wilkins v. Wilkins,11 we found no abuse of discretion in
the trial court’s calculation of child support for children of
a first marriage while taking into consideration the father’s
obligation to a child from a second marriage. the trial court
9 Gallner v. Hoffman, 264 Neb. 995, 1002, 653 N.W.2d 838, 844 (2002).
See, also, Moore v. Bauer, 11 Neb. App. 572, 581, 657 N.W.2d 25, 33
(2003) (Sievers, Judge, concurring) (“[i]n my judgment, an attorney who
appeals a dissolution decree or a decree on modification of child support
when the trial court has not adopted the proper worksheets is remiss in his
or her duty to the client if such appeal is filed without first attempting to
get the trial court to correct its obviously erroneous decree”).
10 Neb. Ct. r. § 4-220.
11 Wilkins v. Wilkins, supra note 1.
306 	277 NebrASKA rePortS

determined child support in an interdependent manner that
considered the obligation to each family.12 In this case, there is
no worksheet to assist us in determining whether the trial court
took into consideration Greg’s children from his second mar-
riage when it extrapolated the amount of child support from
the guidelines.
Greg also complains that the trial court failed to take into
consideration that he pays health insurance premiums for the
children. evidence was presented that rIMC pays $437 per
month for health insurance, but the record does not indicate
who is covered by the insurance or whether Greg paid this
amount from the income the court assessed to him. Greg paid
medical expenses, such as those for doctor visits and physi-
cal examinations, and dental and orthodontia expenses for the
children, but no evidence was presented to show the amounts
of these expenses. the guidelines provided that a parent who
requests an adjustment in child support for health insurance
premiums “must submit proof of the cost of the premium.”13
Without a worksheet, this court cannot determine whether
expenses for health insurance or health care for the children
were taken into consideration in the modification.
the trial court abused its discretion by failing to complete
a worksheet as to the method it used to determine the modi-
fication of child support. failure to comply with the require-
ments set forth in the guidelines is an abuse of discretion. We
therefore remand the cause to the trial court with directions to
complete any applicable worksheets and provide evidence of
the calculations in its order.
this court and the Nebraska Court of Appeals have previ-
ously emphasized the importance of adhering to the require-
ment that worksheets be provided in all appeals from orders
concerning child support, including modifications.14
12 Id. See, also, Czaplewski v. Czaplewski, 240 Neb. 629, 483 N.W.2d 751
(1992) (trial court properly factored into its calculations father’s offspring
of his subsequent marriage).
13 See Nebraska Child Support Guidelines, worksheet 1, fifth comment.
14 See, Gallner v. Hoffman, supra note 9; Stewart v. Stewart, 9 Neb. App.
431, 434, 613 N.W.2d 486, 489 (2000) (“[i]t is not within the trial court’s
discretion to forgo completion of the worksheet”).
rutherford v. rutherford 	307
Cite as 277 Neb. 301

henceforth, if a trial court fails to prepare the applicable
worksheets, the parties are required to request that such
worksheet be included in the trial court’s order. orders for
child support or modification which do not contain such
worksheets will on appeal be summarily remanded to the
trial court so that it can prepare the worksheets as required
by the guidelines. Such requirement is set forth in this
court’s rules.15
[5] therefore, effective upon the filing of this opinion, the
record on appeal from an order imposing or modifying child
support shall include any applicable worksheets with the trial
court’s order. failure to include such worksheets in the record
will result in summary remand of the trial court’s order.
CoNCLuSIoN
the cause is remanded with directions that the trial court
prepare an order of modification consistent with this opinion.
R emanded with diRections.
heavican, C.J., participating on briefs.
15 See § 4-203.
state of nebRaska ex Rel . l. tim waGneR, diRectoR of
insuRance of the state of nebRaska , as liquidatoR
of amwest suRety insuRance company, appellant,
v. united national insuRance company
et al ., appellees.
761 N.W.2d 916
filed March 6, 2009. 	No. S-07-1160.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Judgments: Appeal and Error. When reviewing a question of law, an appellate
court reaches a conclusion independent of the lower court’s ruling.
3. Insurance: Contracts. If the terms of an insurance policy are clear and unam-
biguous, then those terms will be enforced.
308 	277 NebrASKA rePortS