Full question:
I need to know the legal definition of wilson vs wilson so I know if the non custodial parent is responsible for transpertation to and from all visits.
- Category: Divorce
- Subcategory: Visitation
- Date:
- State: Nebraska
Answer:
WILSON v. WILSON, 224 Neb. 589 (1987)
399 N.W.2d 802
SANDRA JEAN WILSON, APPELLEE, v. RICHARD ALAN WILSON, APPELLANT.
No. 86-251.
Supreme Court of Nebraska.
Filed January 23, 1987.
1. Child Custody. Joint custody is not favored by the courts of this state
and will be reserved for only the rarest of cases.
2. Modification of Decree: Child Support. A significant increase in the
appellant's income, along with the increased ages of the children and
the inability of the appellee to afford to pay the children's bills on
the current support payment, meets the requirement of a material change
in circumstances and supports the trial court's decision to modify
child support payments.
Appeal from the District Court for Saline County: ORVILLE
L. COADY, Judge. Affirmed as modified.
Miles W. Johnston, Jr., of Johnston, Wherry & Knight, for
appellant.
Steven J. Reisdorff of The Law Office, P.C., for appellee.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE,
SHANAHAN, and GRANT, JJ.
WHITE, J.
This is an appeal from the district court for Saline County.
The parties to this case, Sandra Jean Wilson and Richard Alan
Wilson, were divorced on October 4, 1982. As part of the
decree the court approved a property settlement agreement.
The property settlement agreement provided for the joint
custody of their four children. Specifically, the appellee, Sandra
Wilson, was awarded custody of the children during the school
year, and the appellant had rights of visitation during every
other weekend and holiday. The custody and visitation
arrangements were reversed during the summer months.
Richard Wilson was also ordered to pay $50 per month per child
Page 590
during the time when the children were with their mother, but
was excused from payment during the time the children were
with him. In an addendum to the original property settlement,
the appellant was ordered to pay one-half of all medical
expenses and to obtain and maintain health insurance coverage
on the children.
In March of 1984 the decree was modified to provide that the
appellant pay a total of $200 per month child support except in
any month in which he has the children 25 days or more. The
appellant was also ordered to pay all reasonable and necessary
medical expenses incurred by the children.
The third and final modification of the visitation, custody,
and support rights came in March of 1986. The appellee was
given custody of the children. The appellant was given
visitation for 30 days in the summer, along with every other
weekend, and was excused from the payment of support during
that time. The appellant was permitted to pick up his children at
6 p.m. on Friday and return them at 7 p.m. on Sunday. He was
also ordered to maintain present health care obligations.
This appeal follows the final modification. Appellant assigns
error to the trial court's modification of the custody, support,
and visitation provisions of the decree. We affirm as modified.
Addressing the issue of the custody of the four minor
children, the appellant argues that the trial court erred in
changing the custody of the Wilson children from joint custody
in both parents to custody in the children's mother. Neb. Rev.
Stat. § 42-364(3) (Cum. Supp. 1986) permits joint custody only
in situations where both parents agree, and then only after a
public hearing is conducted on that issue. Regardless of any
agreement by the parents on the outcome of the public hearing,
the court must find that joint custody is in the best interests of
the children.
We have, in our previous opinions on the issue of joint
custody, stated explicitly that joint custody is not favored and
must be reserved for only the rarest of cases. Trimble v.
Trimble, 218 Neb. 118, 352 N.W.2d 599 (1984); Korf v. Korf,
221 Neb. 484, 378 N.W.2d 173 (1985). Although each parent
has shown only love and affection for the children, our review
of the record makes apparent that the Wilsons' inability to
Page 591
agree on custody arrangements has disrupted the children's
home life and caused much unneeded stress. Although each
parent is capable of providing a secure and happy home for the
children, it is in the best interests of the children that there be
only one custodial parent. From a de novo review of the record,
which we are required to conduct, we find that the district court
has made an admirable effort to find a solution for a situation
in which none is really apparent. We find no abuse of discretion
and affirm the district court's placement of the custody of the
children with the appellee.
Appellant next assigns as error the district court's change of
child support from a total of $200 per month to $120 per month
per child. Questions relating to the modification of child
support are entrusted to the sound discretion of the trial court.
Although our review is de novo on the record, absent an abuse
of discretion on the part of the trial court the decision of the
trial court will be affirmed on appeal. Wagner v. Wagner, ante
p. 155, 396 N.W.2d 282 (1986).
The rule is well established that, absent a material change of
circumstances, child support payments are not subject to
modification. Graber v. Graber, 220 Neb. 816, 374 N.W.2d 8
(1985). The record reveals that the appellant's income has
increased from over $10,000 in 1983 to over $19,000 in 1984.
The appellant argues that this increase in income does not
justify the lower court's increase in support payments. The
appellee testified in court that the $200 per month she currently
received in child support barely enabled her to feed the children
and did not provide extra money to pay any additional
expenses.
In Morisch v. Morisch, 218 Neb. 412, 413, 355 N.W.2d 784,
785-86 (1984), this court enumerated the situations which
would meet the requirement of a material change of
circumstances as follows:
"Material change in circumstances" in reference to
modification of child support is analogous to
modification of alimony for "good cause." See Neb. Rev.
Stat. § 42-365 (Cum. Supp. 1982); cf. Chamberlin v.
Chamberlin, 206 Neb. 808, 814, 295 N.W.2d 391, 395
(1980) (modification of alimony on account of a "change
Page 592
of circumstances of a material and substantial nature").
"Material change in circumstances" eludes precise and
concise definition. Courts may consider various factors to
determine if a material change in circumstances has
occurred. Among some of the factors or circumstances
considered by a court are a change in the financial
resources or ability to pay on the part of the parent
obligated to pay support, needs of the child or children for
whom support is paid, good or bad faith motive of the
obligated parent in sustaining a reduction of income, and
the duration of the change, namely, whether the change is
temporary or permanent. See 24 Am. Jur. 2d Divorce and
Separation 1082-1088 (1983). Alteration and passage
from one condition to another is essential for a material
change in circumstances.
(Emphasis supplied.)
We also note Pfeiffer v. Pfeiffer, 201 Neb. 56, 266 N.W.2d 82
(1978), where a change in support obligations was partially
justified by the increase in the father's salary, and Meyers v.
Meyers, 222 Neb. 370, 383 N.W.2d 784 (1986), where this court
stated that the determination of whether a material change in
circumstances occurred involves, among other things, a
consideration of whether a change in the financial resources of
the parents has occurred.
The record does not contain specific notations which
indicate that the parties anticipated this significant increase in
the appellant's income. Wagner v. Wagner, ante p. 155,
396 N.W.2d 282 (1986). We find, therefore, that the appellant's
increase in income, along with the increased ages of the children
and the inability of the appellee to afford to pay the children's
bills on the current support payments, meets the requirement of
a material change in circumstances and permits the
modification of support payments. We find no abuse of
discretion in the lower court's actions.
Appellant's final assignment of error involves the failure of
the trial court to provide for holiday visitation in the final order.
In Manewal v. Manewal, 220 Neb. 867, 868, 374 N.W.2d 39, 40
(1985), this court stated:
We hold that determinations as to visitation rights in a
Page 593
dissolution of marriage case are matters initially entrusted
to the sound discretion of the trial judge, which matters,
on appeal, will be reviewed de novo on the record and
affirmed in the absence of an abuse of the trial judge's
discretion; keeping in mind, however, that the trial judge
observed and heard the witnesses at some point in the trial
and accepted one version of the facts rather than the other.
Our review of the record reveals no reason why the appellant
was not granted visitation with his children on holidays,
especially in light of the fact that the appellant had visitation in
the past. We find that the trial judge abused his discretion in
failing to provide appellant holiday visitation with his children.
We will now set out the holiday visitation schedule which will
govern the parties to this case. Holiday visitation will include
only the following holidays. (1) Easter. The Easter holiday will
include that period of time during which the children are
excused from school for the Easter holiday, including Easter
Sunday, and shall commence at 8:30 a.m. on the day after the
children are released from school and end at 7 p.m. on the day
before the children return to school. (2) Memorial Day
weekend. This holiday shall include only that weekend when
Memorial Day is nationally recognized and shall commence at
8:30 a.m. on Saturday and conclude at 7 p.m. on Monday,
Memorial Day. (3) Fourth of July. The Fourth of July shall
include only the day on which Independence Day is nationally
recognized and shall commence at 8:30 a.m. and conclude at
7 p.m. (4) Labor Day weekend. This holiday shall include only
that weekend on which Labor Day is nationally recognized and
shall commence at 8:30 a.m. Saturday and conclude at 7 p.m.
on Monday, Labor Day. (5) Thanksgiving. This holiday shall be
defined as that period of time during which the children are
excused from school for the Thanksgiving holiday, including
Thanksgiving, and shall commence at 8:30 a.m. on the day
after the children are released from school and conclude at
7 p.m. on the day before the children return to school. (6)
Christmas. The Christmas holiday shall be defined as that time
during which the children are excused from school for the
Christmas holiday and shall commence at 8:30 a.m. on the day
after the children are released from school and conclude at
Page 594
noon on December 31. (7) New Year's Day. The New Year's Day
holiday shall commence at noon on December 31 and conclude
at 7 p.m. on the day before school is to begin.
The children shall be returned to the custodial parent at the
conclusion of each holiday. In even-numbered years the mother
shall have the children for the even-numbered holidays, and Mr.
Wilson shall have the children on the odd-numbered holidays.
In odd-numbered years the children shall remain with their
mother for odd-numbered holidays and spend the
even-numbered holidays with the appellant. The children will
spend Mother's Day with their mother and Father's Day with
their father. For Mother's Day and Father's Day only, the
holiday will commence at 8:30 a.m. and conclude at 7 p.m. on
the Sunday on which these holidays are nationally observed.
This holiday visitation schedule shall supersede the regular
weekend visitation schedule. The regular weekend visitation
schedule will continue with the parent who did not have the
children on the previous holiday and continue on from that
point, alternating between the parents every other weekend. We
affirm as modified.
AFFIRMED AS MODIFIED.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
