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HOTZ v. HOTZ

Cite as 301 Neb. 102

Barbara F. Hotz, appellee, v. 

James P. Hotz, appellant.

___ N.W.2d ___

Filed September 21, 2018. No. S-17-1152.

1. Modification of Decree: Child Support: Appeal and Error. 

Modification of child support is entrusted to the discretion of the trial 

court. 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. Evidence: Appeal and Error. In a review de novo on the record, an 

appellate court reappraises the evidence as presented by the record and 

reaches its own independent conclusions with respect to the matters 

at issue.

3. Judgments: Words and Phrases. A judicial abuse of discretion 

requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and 

a just result.

4. Child Support: Rules of the Supreme Court. Interpretation of the 

Nebraska Child Support Guidelines presents a question of law.

5. Judgments: Appeal and Error. When reviewing questions of law, 

an appellate court resolves the questions independently of the lower 

court’s conclusions.

6. Statutes: Rules of the Supreme Court. For purposes of construction, 

Nebraska Supreme Court rules are treated like statutes.

7. ____: ____. Absent a statutory indication to the contrary, language 

contained in a Nebraska Supreme Court rule is to be given its plain and 

ordinary meaning.

8. ____: ____. Just as statutes relating to the same subject are in pari materia and should be construed together, Nebraska Supreme Court rules 

should be read and construed together.

9. Rules of the Supreme Court. A court must attempt to give effect 

to all parts of a Nebraska Supreme Court rule, and if it can be 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/16/2018 12:11 AM CST
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avoided, no word, clause, or sentence will be rejected as superfluous 

or meaningless.

10. Rules of the Supreme Court: Appeal and Error. An appellate court 

should try to avoid, if possible, the construction of a Nebraska Supreme 

Court rule that would lead to an absurd result.

11. Child Support: Alimony: Rules of the Supreme Court. The Nebraska 

Child Support Guidelines exclude alimony between parents from their 

total monthly incomes for the purpose of calculating child support obligations for their children in modification proceedings.

12. Child Support: Rules of the Supreme Court. In general, child support payments should be set according to the Nebraska Child Support 

Guidelines.

13. ____: ____. A court may deviate from the Nebraska Child Support 

Guidelines if their application in an individual case would be unjust or 

inappropriate; the court must specifically find that a deviation is warranted based on the evidence and state the reason for the deviation in 

the decree.

14. ____: ____. A deviation from the Nebraska Child Support Guidelines 

without a clearly articulated justification is an abuse of discretion.

15. ____: ____. Deviations from the Nebraska Child Support Guidelines 

must take into consideration the best interests of the child or children.

16. Modification of Decree: Child Support: Proof. A party seeking to 

modify a child support order must show a material change in circumstances that (1) occurred subsequent to the entry of the original decree 

or previous modification and (2) was not contemplated when the decree 

was entered.

Appeal from the District Court for Lincoln County: Richard

A. Birch, Judge. Affirmed.

Kent A. Schroeder, of Ross, Schroeder & George, L.L.C., 

for appellant.

R. Bradley Dawson, of Lindemeier & Dawson, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

The district court dissolved the marriage of Barbara F. Hotz 

and James P. Hotz, split custody of their three minor children; 

ordered James to pay child support until the parties’ oldest 
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HOTZ v. HOTZ

Cite as 301 Neb. 102

child, Josee Hotz, reached the age of majority; and awarded 

alimony to Barbara. Barbara later moved to modify the amount 

of child support James paid, alleging James’ income had materially increased. The court declined to include James’ alimony 

payments to Barbara in its calculation of the parties’ total 

monthly income for the purpose of recalculating child support obligations. The court also rejected other arguments from 

James regarding the calculation of the parties’ total monthly 

income and abated part of Barbara’s child support obligations 

after Josee reaches the age of majority.

We hold that the Nebraska Child Support Guidelines (NCSG) 

exclude alimony between parents from their total monthly 

income for the purpose of calculating child support obligations 

for their children. Further, we find that the court did not abuse 

its discretion in calculating the parties’ child support obligations or abating Barbara’s child support payments. Therefore, 

we affirm.

I. BACKGROUND

In 2015, the court entered a decree dissolving the marriage of Barbara and James and awarding custody of their 

three minor children. The court awarded Barbara custody of 

Josee and James custody of their other two children. The court 

ordered James to pay Barbara $253 per month in child support 

until Josee reached the age of majority, and then Barbara to pay 

James $302 per month for two children and $244 per month 

for one child. Further, the court ordered James to pay Barbara 

$750 per month in alimony for 70 months.

In 2016, Barbara filed a complaint to modify the decree, 

seeking a change in custody, child support, and alimony. 

Concerning alimony and child support, the complaint alleged 

that James’ income had increased and that the change would 

increase the support paid by him by more than 10 percent. At 

trial, the parties testified about and produced evidence of their 

current employment and income.

Barbara testified that she has a part-time job with a hospital 

service company and a part-time job at a livestock company, 
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HOTZ v. HOTZ

Cite as 301 Neb. 102

working 1 day per work at each job. The evidence showed that 

she works about 8 hours per week, at a rate of $15.47 an hour, 

for the hospital service and that her monthly income from the 

livestock company is about $400. She also testified that she 

owns rental homes that are not currently income producing 

and runs a corporation that operates at a loss. James submitted Barbara’s Social Security statement into evidence, which 

shows her annual earnings for the purposes of Social Security 

taxes. James testified that his earning capacity had decreased 

since the divorce decree. He submitted into evidence his personal and S corporation income tax returns from 2016.

Each party presented a demonstrative exhibit of proposed 

child support calculations. James calculated his gross monthly 

income at $3,116 and Barbara’s at $3,431. Barbara calculated 

her gross monthly income at $1,560 and James’ at $5,794. 

She calculated her income as $9 per hour for a 40-hour 

workweek.

The court accepted Barbara’s calculation of James’ total 

monthly income and determined Barbara’s total monthly 

income based upon an earning capacity of $1,784, finding she 

could work 8 hours per week at $15.47 per hour and 32 hours 

per week at $9 per hour. The court modified its support order 

to require James to pay Barbara $156 per month in child support until Josee reaches the age of majority, and then Barbara 

to pay James $424 per month for two children and $292 per 

month for one child.

Both parties filed a motion to alter or amend the decision. 

The court denied James’ motion. It ruled that it had correctly 

disregarded James’ claimed depreciations, under Neb. Ct. R. 

§ 4-204 (rev. 2016), and that the NCSG does not allow for the 

inclusion of alimony as income in child support calculations 

on a complaint to modify. It reasoned that Neb. Ct. R. § 4-213, 

read in conjunction with § 4-204, excludes alimony from total 

monthly income.

The court, in part, granted Barbara’s motion, requesting an 

adjustment of her child support obligation when the parties 

had alternating weeks of custody, by granting an 80-percent 
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HOTZ v. HOTZ

Cite as 301 Neb. 102

abatement of her obligation during the months of June, July, 

and August. It reasoned that the abatement was warranted 

because James’ total monthly income is substantially higher 

than Barbara’s and, during those months, Barbara will have 

equal days of custody, whereas James otherwise has full custody of the children after Josee reaches the age of majority.

James filed an appeal, and we granted his motion to bypass 

the Nebraska Court of Appeals.

II. ASSIGNMENTS OF ERROR

James assigns, restated and consolidated, that the district 

court abused its discretion in (1) failing to accurately calculate 

the parties’ child support obligations; (2) failing to include alimony payments in the calculation of the parties’ total monthly 

incomes; (3) calculating Barbara’s earning capacity; (4) finding 

James failed to prove he was entitled to depreciation deductions; and (5) abating Barbara’s child support obligation by 80 

percent for the months of June, July, and August.

III. STANDARD OF REVIEW

[1] Modification of child support is entrusted to the discretion 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

[2,3] In a review de novo on the record, an appellate court 

reappraises the evidence as presented by the record and reaches 

its own independent conclusions with respect to the matters at 

issue.3 A judicial abuse of discretion requires that the reasons 

or rulings of the trial court be clearly untenable insofar as 

they unfairly deprive a litigant of a substantial right and a 

just result.4

1 Schwarz v. Schwarz, 289 Neb. 960, 857 N.W.2d 802 (2015).

2 Id.

3 Connolly v. Connolly, 299 Neb. 103, 907 N.W.2d 693 (2018).

4 McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018).
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[4,5] Interpretation of the NCSG presents a question of 

law.5 When reviewing questions of law, an appellate court 

resolves the questions independently of the lower court’s 

conclusions.6

IV. ANALYSIS

1. Court Did Not Abuse

Discretion in Calculating

Child Support Obligations

James does not argue that the court erred in finding that a 

material change in circumstances warranting a modification of 

child support obligations has occurred. Instead, he challenges 

only specific findings of the court regarding the parties’ total 

monthly incomes for the purpose of calculating their new 

child support obligations. Specifically, he argues that the court 

should have considered his alimony obligation to Barbara in 

calculating the parties’ incomes, deducted his depreciations, 

and calculated Barbara’s earning capacity at the hourly rate of 

her current employment.

(a) Alimony Obligation Between Parents 

Is Excluded From Calculating Total 

Monthly Income for Determining 

Child Support Obligations 

Between Them

James concedes that the NCSG and Nebraska case law 

establish that alimony payments cannot be included in the 

calculation of child support during the initial decree, because 

alimony is calculated after child support. However, he asserts 

that alimony payments are required to be included in the calculation of total monthly income, under Neb. Ct. R. § 4-201 

and § 4-204, in modification proceedings, because alimony 

5 Schwarz, supra note 1.

6 Cullinane v. Beverly Enters.-Neb., 300 Neb. 210, 912 N.W.2d 774 (2018).
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payments are not specifically excluded. He also argues that 

such an interpretation would be more consistent with the 

way other states with the same model for calculating child 

support treat alimony payments in calculating child support obligations.

Barbara responds that § 4-213 requires that alimony payments not be included in child support calculations.

The main principle behind the NCSG is to recognize the 

equal duty of both parents to contribute to the support of 

their children in proportion to their respective net incomes.7

Section 4-204 of the NCSG, titled “Total monthly income” 

provides:

This is income of both parties 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. . . .

. . . .

If applicable, earning capacity may be considered in 

lieu of a parent’s actual, present income . . . . Earning 

capacity is not limited to wage-earning capacity, but 

includes moneys available from all sources.

We have stated that the “[NCSG is] very specific—all 

income from all sources is to be included except for those 

incomes specifically excluded.”8

Section 4-213 states that the “[NCSG] intend[s] that spousal 

support be determined from income available to the parties 

after child support has been established.” As James acknowledges, this court and the Court of Appeals have previously 

interpreted the interaction of these rules.

In Gallner v. Hoffman,

9

 this court ordered a husband to pay 

alimony and child support to his wife, and after the alimony 

7 Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 503 (2004); § 4-201.

8 Simpson v. Simpson, 275 Neb. 152, 156, 744 N.W.2d 710, 714 (2008).

9 Gallner v. Hoffman, 264 Neb. 995, 653 N.W.2d 838 (2002).
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obligation had expired, the former husband moved to modify 

his child support obligation. The trial court denied the motion, 

finding the former wife’s current income, while higher than 

when the decree was entered, was substantially the same as 

her previous income plus alimony. On appeal, we held that the 

trial court erroneously interpreted the NCSG by treating the 

former wife’s prior receipt of alimony as an item of income in 

its assessment of the child support obligation.

We reasoned that the clear language of the NCSG, paragraph 

M, the precursor to § 4-213, provided that child support obligations are to be calculated prior to the calculation of alimony, 

so alimony could not be factored into income before the alimony was determined.10 Thus, we concluded that because “alimony is not properly considered as income when child support 

is established, the cessation of alimony cannot be considered 

a diminution in income when determining whether there has 

been a material change of circumstances justifying a modification of child support.”11

Recently, relying on our decision in Gallner, the Court of 

Appeals held that alimony is not income when considering an 

application to modify child support.12 In Roberts v. Roberts,

13

the original decree awarded the wife alimony and the district 

court included this alimony in its calculation of the wife’s total 

monthly income for the purpose of recalculating child support 

in a modification action. In reversing the trial court’s ruling, 

the Court of Appeals reasoned that “if child support is calculated before alimony, such alimony should be excluded when 

calculating income in a modification proceeding.”14

10 Id.

11 Id. at 1003, 653 N.W.2d at 845.

12 Roberts v. Roberts, 25 Neb. App. 192, 903 N.W.2d 267 (2017).

13 Id.

14 Id. at 202, 903 N.W.2d at 276. See, also, Coffey v. Coffey, 11 Neb. App. 

788, 661 N.W.2d 327 (2003).
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James argues that this interpretation is incorrect, because 

during a modification proceeding, alimony has already been 

established and the NCSG does not specifically exclude such 

as income after it has been established.

[6-10] The NCSG was created by this court through a 

formal rulemaking process pursuant to a statutory grant of 

administrative authority from the Legislature.15 For purposes 

of construction, Nebraska Supreme Court rules are treated 

like statutes.16 Absent a statutory indication to the contrary, 

language contained in a Supreme Court rule is to be given 

its plain and ordinary meaning.17 Just as statutes relating to 

the same subject are in pari materia and should be construed 

together, Supreme Court rules should be read and construed 

together.18 A court must attempt to give effect to all parts 

of a Supreme Court rule, and if it can be avoided, no word, 

clause, or sentence will be rejected as superfluous or meaningless.19 An appellate court should try to avoid, if possible, 

the construction of a Supreme Court rule that would lead to an 

absurd result.20

While the NCSG does not explicitly exclude alimony from 

child support calculations in all circumstances, we held in 

Gallner that § 4-213 clearly excludes alimony from the parties’ total monthly incomes in the initial decree. If we were to 

accept James’ interpretation of the NCSG limiting the effect 

of § 4-213 to this circumstance, then any decree ordering both 

child support and alimony obligations could be open to an 

15 See Neb. Rev. Stat. § 42-364.16 (Reissue 2016).

16 See State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (2017).

17 See Nebraska Protective Servs. Unit v. State, 299 Neb. 797, 910 N.W.2d 

767 (2018).

18 Loding, supra note 16.

19 See Wisner v. Vandelay Investments, 300 Neb. 825, ___ N.W.2d ___ 

(2018).

20 See In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018).
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immediate motion for modification based on the subsequently 

calculated alimony. Such an interpretation would be absurd 

in that it would render § 4-213 superfluous, beyond the short 

duration between the entry of a decree and a motion for modification immediately following.

[11] Accordingly, we agree with the Court of Appeals’ 

holding in Roberts. We hold that the NCSG excludes alimony 

between parents from their total monthly incomes for the purpose of calculating child support obligations for their children 

in modification proceedings.

This holding is consistent with the statement of the purpose 

of alimony pursuant to Neb. Rev. Stat. § 42-365 (Reissue 

2016): “The purpose of alimony is to provide for the continued maintenance or support of one party by the other when 

the relative economic circumstances and the other criteria 

enumerated in this section make it appropriate.” Based on 

§ 4-213, we have stated that the relative economic circumstances of the parties are to be tested based on the income 

available after child support obligations, if any, have been 

accounted for.21 Immediately allowing for a modification of 

child support obligations based on an order of alimony would 

negate the fact that the alimony was determined with such 

obligations in mind and hinder the ability of the alimony to 

aid in the maintenance and support of the spouse for whom it 

was ordered.

We also reject James’ argument that we should disregard 

§ 4-213 as a matter of policy, based on the way other states 

treat alimony for calculating child support obligations. As 

mentioned above, the NCSG was promulgated through a formal process, including public comments and input. Thus, this 

is not the appropriate venue to reevaluate the prudence of the 

policy behind the NCSG.

21 Wiedel v. Wiedel, 300 Neb. 13, 911 N.W.2d 582 (2018).
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(b) James Failed to Produce 

Sufficient Evidence Supporting 

Depreciation Deductions

James argues that the court erred in not deducting depreciation from his total monthly income because he submitted 

his 2016 personal and corporate tax returns into evidence 

and both included claimed depreciations. Barbara argues that 

James had the burden to prove that he was entitled to a deduction and that he failed to do so.

While the NCSG does permit for an allowance of depreciation as a deduction from total monthly income, it also provides 

specific instructions for proving an entitlement to the deduction and how the deduction should be calculated.22 Further, 

§ 4-204 provides that “[a] party claiming depreciation shall 

have the burden of establishing entitlement to its allowance as 

a deduction.”

The most basic requirement for proving an entitlement to a 

deduction is: “Any party claiming an allowance of depreciation as a deduction from income shall furnish to the court and 

the other party copies of a minimum of 5 years’ tax returns at 

least 14 days before any hearing pertaining to the allowance of 

the deduction.”23 In addition, § 4-204 requires that a depreciated asset must be shown to be ordinary and necessary and 

that the depreciation was calculated by using the “‘straightline’” method.

James submitted only his 2015 and 2016 personal and 

corporate income tax returns as evidence of his entitlement 

to an allowance of depreciation. This evidence is insufficient 

to warrant a deduction under the minimum of 5 years of tax 

returns requirement of the NCSG. Additionally, no evidence 

was provided that the depreciated assets were ordinary and 

necessary or that the depreciation was calculated by using the 

22 See § 4-204.

23 Id.
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straight-line method. Therefore, the court did not abuse its 

discretion by not deducting James’ claimed depreciations from 

his total monthly income.

(c) Court Did Not Abuse Its 

Discretion in Calculating 

Barbara’s Earning Capacity

James contends that Barbara’s earning capacity per hour for 

a 40-hour workweek is $15.47, because she is already making that wage at her part-time job and because she has a college degree. Barbara argues that the remainder of her earning 

capacity should be calculated at the minimum wage of $9 per 

hour and that the evidence shows she has never made more 

than $19,250 in a calendar year.

In determining a party’s total monthly income, the NCSG 

provides that “[i]f applicable, earning capacity may be considered in lieu of a parent’s actual, present income and may 

include factors such as work history, education, occupational 

skills, and job opportunities.”24 We have stated that use of 

earning capacity to calculate child support is useful when it 

appears that the parent is capable of earning more income 

than is presently being earned.25 However, earning capacity 

should be used to determine a child support obligation only 

when there is evidence that the parent can realize that capacity 

through reasonable efforts.26

The evidence regarding Barbara’s earning capacity was limited to her current employment and her Social Security statement. Barbara conceded in her testimony and demonstrative 

exhibit that she was capable of working a 40-hour workweek, 

and there was no contrary evidence. While she is currently 

working 8 hours per week for the hospital service company 

24 Id.

25 Johnson v. Johnson, 290 Neb. 838, 862 N.W.2d 740 (2015).

26 Id.
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for $15.47 per hour, there was no evidence presented that she 

could obtain additional hours at that job. Further, there was 

no evidence presented that Barbara had any other job opportunities above the minimum wage, based on her education or 

work experience.

Based on the evidence presented at trial, we conclude that 

the court did not abuse its discretion in calculating Barbara’s 

earning capacity. This assignment of error is without merit.

2. Court Did Not Abuse Its

Discretion in Abating Barbara’s

Child Support Obligation

James argues that the court erred in abating Barbara’s child 

support obligation during the summer, because the original 

decree included 6 weeks of custody for each parent during 

the summer and therefore changing the distribution of that 

6 weeks to alternating weeks was not a material change of 

circumstance.

Barbara argues that the material change in circumstances 

was the court’s modification to the parties’ child support obligations that resulted in her receiving less support from James 

currently and increasing her obligation after Josee reaches the 

age of majority.

[12-15] In general, child support payments should be set 

according to the NCSG.27 However, a court may deviate from 

the NCSG if its application in an individual case would be 

unjust or inappropriate.28 The court must specifically find that 

a deviation is warranted based on the evidence and state the 

reason for the deviation in the decree.29 A deviation without 

a clearly articulated justification is an abuse of discretion.30

27 Anderson v. Anderson, 290 Neb. 530, 861 N.W.2d 113 (2015).

28 Id.; Neb. Ct. R. § 4-203 (rev. 2011).

29 Id.

30 Anderson, supra note 27.
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Deviations from the NCSG must also take into consideration 

the best interests of the child or children.31

Neb. Ct. R. § 4-210 of the NCSG specifically addresses 

adjustments in child support related to visitation:

If child support is not calculated under § 4-212 [joint 

physical custody], an adjustment in child support may 

be made at the discretion of the court when visitation or 

parenting time substantially exceeds alternating weekends 

and holidays and 28 days or more in any 90-day period. 

During 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.

[16] A party seeking to modify a child support order must 

show a material change in circumstances that (1) occurred 

subsequent to the entry of the original decree or previous 

modification and (2) was not contemplated when the decree 

was entered.32

The court found an adjustment was warranted under § 4-210 

because James had physical custody of the parties’ younger 

children; Josee would reach the age of majority before the 

coming summer; and the alternating custody during June, 

July, and August would substantially exceed the 28 days in 

a 90-day period requirement. The parties’ custody during 

this period would be equal, so the court abated Barbara’s 

obligation by the maximum of the 80 percent permitted. The 

court’s finding that James has substantially higher income than 

Barbara implies that it is in the best interests of the children 

to decrease Barbara’s support obligation to James during this 

period so that she may provide for the children while they are 

in her custody.

While the court had an equivalent amount of shared custody 

during the summer in its initial decree and Josee’s reaching 

31 Pearson v. Pearson, 285 Neb. 686, 828 N.W.2d 760 (2013); § 4-203.

32 State on behalf of Fernando L. v. Rogelio L., 299 Neb. 329, 907 N.W.2d 

920 (2018).
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the age of majority was contemplated when the decree was 

entered, the court made a substantial increase to Barbara’s 

support obligation in the modification order. This modification 

was a material change in circumstances that justified ordering 

an adjustment in Barbara’s support obligation. Therefore, the 

court did not abuse its discretion in abating Barbara’s support 

obligation for the months of June, July, and August.

V. CONCLUSION

The NCSG excludes alimony between parents from their 

total monthly incomes for the purpose of calculating child support obligations for their children. We hold that the court did 

not abuse its discretion in calculating the parties’ child support 

obligations or in abating Barbara’s child support payments. 

Therefore, we affirm.

Affirmed.