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CRONIN v. CRONIN

Cite as 31 Neb. App. 38

Jamie R. Cronin, now known as Jamie R. 

Maskil-Cronin, appellant and cross-appellee, 

v. Keith P. Cronin, appellee 

and cross-appellant.

___ N.W.2d ___

Filed May 24, 2022. No. A-21-310.

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 will be affirmed 

absent an abuse of discretion by the trial court.

2. Evidence: Appeal and Error. When evidence is in conflict, the appellate court considers and may give weight to the fact that the trial court 

heard and observed the witnesses and accepted one version of the facts 

rather than another.

3. Child Support: Rules of the Supreme Court. The main principle 

behind the Nebraska Child Support Guidelines is to recognize the equal 

duty of both parents to contribute to the support of their children in proportion to their respective net incomes.

4. ____: ____. When determining total income under the Nebraska Child 

Support Guidelines, all income from all sources is to be included except 

for those incomes specifically excluded.

5. Child Support: Rules of the Supreme Court: Evidence: Presumptions.

When determining total income under the Nebraska Child Support 

Guidelines, a court should not include income that is speculative in 

nature and over which the party has little or no control. But when the 

evidence shows the party earns or can reasonably expect to earn a certain amount of income on a regular basis, a rebuttable presumption of 

including such income arises.

6. Child Support. As a general matter, the parties’ current earnings are to 

be used in calculating child support.

Nebraska Supreme Court Online Library

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

05/31/2022 08:13 AM CDT
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7. Child Support: Taxes. The choice of tax filing status when running a 

child support calculation should correlate with a party’s actual tax liability as closely as possible.

8. 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.

9. Modification of Decree: Child Support. Among the factors to be considered in determining whether a material change of circumstances has 

occurred are changes in the financial position of the parent obligated to 

pay support, the needs of the children for whom support is paid, good 

or bad faith motive of the obligated parent in sustaining a reduction in 

income, and whether the change is temporary or permanent.

10. Modification of Decree: Child Support: Rules of the Supreme Court.

When a prior order of child support constitutes a deviation from the 

Nebraska Child Support Guidelines, a party may not seek modification 

of that order solely on the basis that the guidelines would result in a different child support amount.

11. Modification of Decree: Child Support. In determining whether to 

order a retroactive modification of child support, a court must consider 

the parties’ status, character, situation, and attendant circumstances.

12. Modification of Decree: Child Support: Time. Absent equities to the 

contrary, modification of a child support order should be applied retroactively to the first day of the month following the filing day of the 

application for modification.

13. Modification of Decree: Time: Appeal and Error. The initial determination regarding the retroactive application of a modification order is 

entrusted to the discretion of the court and will be affirmed on appeal 

absent an abuse of discretion.

Appeal from the District Court for Sarpy County: Stefanie 

A. Martinez, Judge. Affirmed as modified.

David Pontier, of Koenig | Dunne, P.C., L.L.O., for appellant.

Virginia A. Albers, of Slowiaczek Albers, P.C., L.L.O., for 

appellee.

Pirtle, Chief Judge, and Riedmann and Bishop, Judges.
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Cite as 31 Neb. App. 38

Bishop, Judge.

I. INTRODUCTION

Jamie R. Cronin, now known as Jamie R. Maskil-Cronin, 

appeals from an order of the Sarpy County District Court 

modifying the decree dissolving her marriage to Keith R. 

Cronin. She claims multiple errors relating to the district 

court’s modification of Keith’s child support obligation; Keith 

cross-appeals the court’s determination of Jamie’s income. We 

affirm the order as modified.

II. BACKGROUND

1. December 2011 Decree

Jamie and Keith were married on September 29, 2001. Two 

sons were born during the marriage: Nathan Cronin, born in 

2002, and Brock Cronin, born in 2006. The marriage was dissolved by decree on December 1, 2011. The decree adopted 

and incorporated the parenting plan agreed upon by Jamie and 

Keith, which gave the parties joint legal and physical custody 

of the children.

As relevant to this appeal, the decree divided the financial 

obligations regarding the minor children between the parties. 

The decree ordered:

[Jamie] shall pay forty percent (40%) and [Keith] shall 

pay sixty percent (60%) of the minor children’s extracurricular and sports-related activities, including but not 

limited to, Select and Power sports, baseball, football, 

basketball, swimming, and other non-related school activities the minor children participate in by mutual agreement of the parties.

The decree also required Keith to maintain health insurance 

for both children. The children’s “co-pays and uninsured 

medical, dental, orthodontia, and ophthalmology expenses,” 

as well as “child care expenses incurred for the minor children . . . due to employment of either parent or to allow either 

parent to obtain training or education necessary to obtain 

a job or enhance earning potential,” were to be divided in 
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Cite as 31 Neb. App. 38

the same fashion as the children’s sports and extracurricular 

expenses. The decree further ordered that Jamie “shall pay for 

all other incidental expenses of the minor children.” We also 

note that the “Explanation of Child Support Calculations” 

attached to the decree states that Jamie would “pay all direct 

expenses of the children with the exception of sports.”

The decree ordered Keith to pay child support to Jamie 

for the two minor children. At the time of the decree, Keith’s 

income included annuity payments scheduled to end in June 

2013. He was also paying $450 per month in child support 

for a child from a previous marriage, and the “Explanation of 

Child Support Calculations” indicated that this child would be 

emancipated in April 2016. Three separate joint custody child 

support calculations were attached to the decree. The first calculated Keith’s obligation under the Nebraska Child Support 

Guidelines to be $648.74 per month for two children, and 

this calculation accounted for Keith’s annuity income and his 

prior child support obligation. The second calculated Keith’s 

child support to be $322.76 per month for two children while 

accounting only for his prior child support obligation. The 

third calculated Keith’s child support obligation to be $394.72 

per month for two children without accounting for his annuity 

income and prior child support obligation.

The district court found that “[a]n upward deviation from 

the Nebraska Child Support Guidelines [was] warranted based 

on the expense sharing between the parties and child support 

should be increased as a result. . . .” The decree required Keith 

to pay Jamie $1,350 per month in child support until June 1, 

2013, after which Keith’s child support obligation would be 

reduced to $1,000 per month. Keith’s child support payments 

were scheduled to continue at this monthly rate until “one of 

the [parties’] minor children reaches the age of majority, dies, 

marries, [or] becomes emancipated, or until further order of 

this Court,” at which time Keith’s child support obligation 

would be further reduced to $800 per month.
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2. June 2020 Complaint for Modification

On June 5, 2020, Keith filed an “Application to Modify 

Decree of Dissolution of Marriage” in the Sarpy County 

District Court. He alleged there had been a material change in 

circumstances since the entry of the decree due to changes in 

the parties’ respective incomes that justified modification of his 

child support obligation and the allocation of expenses for the 

parties’ children.

Jamie filed an “Answer and Counterclaim” on July 22, 2020, 

denying the material allegations of Keith’s application. She 

alleged in her counterclaim that (1) Keith had “routinely failed 

to exercise his court-ordered parenting time,” (2) his workrelated travel “prevents him from exercising his court-ordered 

parenting time,” and (3) his new residence “distance[d] the 

minor children from their school and friends.” Jamie requested 

the district court to grant her primary physical custody of the 

children and recalculate Keith’s child support obligation. Jamie 

thereafter filed an “Answer and Amended Counterclaim” on 

December 3 pursuant to a stipulation between the parties. In 

her amended counterclaim, Jamie again asserted the first two 

allegations initially made in her counterclaim, but dropped the 

third one. She further alleged that the “parties’ employment 

and incomes have changed” and requested the court to increase 

Keith’s child support obligation.

Trial took place on March 22, 2021. Each party testified, 

and multiple exhibits were received regarding the parties’ 

employment and financial circumstances. The testimony and 

exhibits will be discussed as relevant to the errors assigned in 

our analysis below.

On April 9, 2021, the district court entered an order modifying the parties’ decree. The court found that both Jamie and 

Keith had each proved a material change in circumstances 

to warrant modification of child support. With respect to 

Keith, the court determined that Keith had proved “there has 

been a change in financial circumstances which [has] lasted 

three months and can reasonably be expected to last for an 
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additional six months and application of the child support 

guidelines does result in a variation by ten percent or more 

from the original child support obligation.” Regarding the parties’ employment and income, the court observed:

4. [Keith’s] income has decreased due to a change in 

position at Union Pacific Railroad and the change in the 

distribution of retention shares. The Court finds that, to 

arrive at his current income, an average of the last five 

years is appropriate. Based on the evidence, [Keith’s] 

current monthly income is $16,985. [Keith] should also 

be given credit of $248 for health insurance paid per 

month for the children. As to the filing status, although 

there was testimony that [Keith] has remarried, there 

was no evidence as to [what] his current filing status is 

with his new spouse. As such, the filing status should 

be single.

5. [Jamie] is currently unemployed. [She] was previously employed for approximately 20 years at Union 

Pacific. Upon termination, [Jamie] was given a severance 

package of $130,000. The Court finds that the $130,000 

should not be counted as income for purposes of child 

support because it was a one-time payment. The Court 

also finds that [she] should be assessed her last year’s 

income while employed at Union Pacific. This was an 

otherwise steady income and there was no evidence that 

her earning capacity has decreased. Therefore, [Jamie’s] 

current monthly income should be assessed at $9,139 and 

her tax filing status should be “head of household.”

The district court also concluded that the “upward deviation [in the December 2011 decree] is no longer necessary and 

should be removed,” noting that incidental expenses allocated 

to Jamie under the decree had “been less than $600 per month 

for the last few years” and that the children’s “sport and activity expenses will significantly decrease” as a result of the 

children entering high school. The court also observed that 

in addition to child support and his share of other expenses, 
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Keith had been paying “approximately $440 per month” for 

his sons’ cell phones and the elder son’s car. The court further 

found that Jamie has, “at most, . . . had ten extra days per year 

with the children” due to Keith’s business travel, although 

it noted that Keith was “able to be flexible” with his workrelated travel.

After setting forth its factual findings, the district court 

ordered Keith to pay $451 per month in child support for two 

children retroactive to July 1, 2020. The order provided that 

this obligation would be reduced to $291 per month when 

only one of the parties’ children would be eligible to receive 

child support. The court also modified the parties’ cost-sharing 

arrangement, ordering Keith to pay 63 percent of “[a]ll reasonable and necessary direct expenditures made solely for the 

minor children such as clothing and extracurricular activities” 

while Jamie would pay the remaining 37 percent, and the order 

further required that “[a]ny expense over $100 shall be agreed 

to in advance.” The court denied any other relief not expressly 

addressed in the order.

Jamie appeals and Keith cross-appeals the district court’s 

order.

III. ASSIGNMENTS OF ERROR

Jamie claims on appeal that the district court abused its 

discretion in (1) calculating Keith’s modified child support 

obligation based on inaccurate findings concerning Keith’s 

income, marital status, child tax credits and exemptions, and 

annual overnights with the children; (2) finding that a material 

change in circumstances existed that warranted modification of 

Keith’s child support obligation; and (3) setting Keith’s modified child support obligation retroactive to July 1, 2020, without also retroactively modifying Jamie’s obligations under the 

December 2011 decree to the same date.

On cross-appeal, Keith claims the district court incorrectly 

imputed income to Jamie and should have adopted his proposed child support calculation.
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IV. 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 will be affirmed absent an 

abuse of discretion by the trial court. Tilson v. Tilson, 307 Neb. 

275, 948 N.W.2d 768 (2020). When evidence is in conflict, the 

appellate court considers and may give weight to the fact that 

the trial court heard and observed the witnesses and accepted 

one version of the facts rather than another. Id.

V. ANALYSIS

1. Calculation of Parties’ Incomes

We first note that Jamie and Keith each argue, on appeal 

and cross-appeal respectively, that the district court erred in 

calculating the other’s income for purposes of child support. 

The court found a material change in circumstances stemming 

in part from changes in each party’s income and employment 

that would result in a variation by 10 percent or more from 

the original child support obligation. Accordingly, we examine 

the court’s calculation of the parties’ incomes as a threshold 

matter before we determine whether a material change in 

circumstances has occurred since the entry of the December 

2011 decree.

(a) Keith’s Income

(i) Evidence at Trial

Keith testified that his employment with Union Pacific 

Railroad (Union Pacific) has continued since the entry of the 

December 2011 decree. However, his original position was 

“eliminated” in October 2018 and he was able to find a new 

position with Union Pacific shortly thereafter. Keith explained 

that his compensation primarily entailed three major pieces: an 

“annual-based salary,” a “performance-based” bonus, and an 

annual stock award of “retention shares” automatically placed 

in an “E-TRADE” account provided to Keith. According to 
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Keith’s testimony, these shares would vest after 4 years so 

long as the recipient remained employed by Union Pacific. 

Upon vesting, “a certain amount [of shares] are sold to cover 

the taxes for those shares,” and Keith could then either sell the 

remaining shares immediately or hold them as an investment. 

In either case, Keith affirmed that the income reported on his 

annual W-2 “reflect[ed] the total vesting of retention shares in 

any given year, [including] those that were sold and those that 

[he] would be retaining.”

Keith testified that the retention shares were a “significant 

aspect” of his employment compensation and that the number 

of shares he received annually had been decreasing over several 

years. According to Keith’s “E-TRADE” account statements 

received at the modification hearing, he received 550 retention 

shares in 2014, 546 shares in 2015, 385 shares in 2016, 280 

shares in 2017, 241 shares in 2018, 75 shares in 2019, and 97 

shares in 2020. As of December 2020, Keith’s retention shares 

from 2017 through 2020 had a market price of $208.22 per 

share and were worth approximately $144,296 in total. Keith 

further received 34 shares in February 2021, and these shares 

were valued at approximately $7,000 upon receipt.

The record includes copies of various financial documents 

regarding Keith’s income, including his tax returns from 2018 

and 2019 filed jointly with his current wife, his W-2 forms 

from 2017 through 2020, and his compensation statements from 

Union Pacific. According to his W-2 forms, which included the 

value of the retention shares that vested each year, Keith’s total 

income was $249,222 in 2017; $249,386 in 2018; $253,271 in 

2019; and $226,919 in 2020. We also note that Keith reported 

$66,032.82 in proceeds from the short-term sale of 387 shares 

of Union Pacific stock on his 2019 tax return and $41,259.74 

in proceeds from the short-term sale of 321 shares of Union 

Pacific stock on his 2018 tax return. His 2018 tax return also 

reports $62,514.57 in proceeds from the long-term sale of 487 

shares of Union Pacific stock.
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Regarding his 2021 income, Keith testified on crossexamination that his “base salary” for 2021 was $149,556 and 

that he would receive a bonus of $24,000. He further affirmed 

that he had received 280 retention shares in February 2017 and 

that these shares had a combined value of $55,608 when they 

vested on February 2, 2021. Added together, these amounts 

total approximately $229,164.

(ii) Calculation of Keith’s Income

Jamie and Keith each offered an aid to the district court 

in calculating Keith’s child support, and both exhibits were 

received by the court accordingly. Jamie offered exhibit 26, a 

child support calculation worksheet listing Keith’s income as 

$19,097 per month, or $229,164 annually.

Keith offered exhibit 16 as a summary of his current income. 

Exhibit 16 added Keith’s 2021 salary and bonus together for a 

total of $173,556 representing his cash compensation. Exhibit 

16 further combined the values of Keith’s retention shares 

from 2017 through 2021 for a 5-year total value of $151,296 

based on the shares’ values set forth in Keith’s December 

2020 “E-TRADE” statement and 2020 compensation statement. This amount was then divided over 5 years for an average annual retention share value of $30,259. After combining 

this amount with Keith’s 2021 cash compensation, exhibit 16 

estimated Keith’s income to be $203,815 per year, or $16,985 

per month.

In its order modifying child support, the district court found 

in pertinent part that Keith’s “income has decreased due to 

a change in position at Union Pacific . . . and the change in 

the distribution of retention shares” and that “to arrive at his 

current income, an average of the last five years is appropriate.” The court determined Keith’s current monthly income to 

be $16,985.

Jamie claims that the district court erred in calculating 

Keith’s income. She asserts the court “explicitly found that 
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the average of Keith’s last five years of gross income was 

the appropriate method to determine his total income.” Brief 

for appellant at 18. However, she notes that the court instead 

“attempted to average [Keith’s] 2021 income with his projected 

future incomes for 2022, 2023, and 2024.” Id. at 20. She argues 

that the value of Keith’s retention shares that will vest after 

2021 is “unknowable,” and she notes that although Keith testified as to the reduced number of shares he received each year, 

the value of his shares has “nearly doubled in the three years 

leading up to trial.” Id.

[3-5] The main principle behind the Nebraska Child Support 

Guidelines is to recognize the equal duty of both parents to 

contribute to the support of their children in proportion to 

their respective net incomes. Hotz v. Hotz, 301 Neb. 102, 917 

N.W.2d 467 (2018). The Nebraska Supreme Court has stated 

that under the Nebraska Child Support Guidelines, “‘all income 

from all sources is to be included except for those incomes 

specifically excluded.’” Hotz v. Hotz, 301 Neb. at 108, 917 

N.W.2d at 474. However, the Supreme Court has cautioned that 

a party’s monthly income for child support purposes should 

not include amounts that are “‘“speculative in nature and over 

which the [party] has little or no control.”’” See Vanderveer 

v. Vanderveer, 310 Neb. 196, 218, 964 N.W.2d 694, 710-11 

(2021). See, also, Noonan v. Noonan, 261 Neb. 552, 624 

N.W.2d 314 (2001). “But when the evidence shows the party 

‘earns or can reasonably expect to earn a certain amount of 

income on a regular basis, a rebuttable presumption of including such income arises under the Guidelines.’” Vanderveer v. 

Vanderveer, 310 Neb. at 218, 964 N.W.2d at 711.

Neither party disputes that the calculation of Keith’s income 

should include some amount attributed to the retention shares 

that he has received and will continue to receive as annual 

compensation. The evidence as described above indicates that 

Keith was regularly selling some amount of his retention 

shares immediately after they vested, and we agree that it 
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was appropriate to include some amount attributable to his 

retention share awards in the computation of his income 

for child support purposes. See Vanderveer v. Vanderveer, 

supra (reversing district court’s exclusion of father’s proceeds 

from cashed restricted stock units from calculation of father’s 

income for child support purposes; father received stock units 

as part of his employment compensation and regularly cashed 

vested stock units to generate significant income over several 

prior years).

Although not expressly stated in its modification order, it 

is evident the district court relied on Keith’s calculation of his 

income as set forth in exhibit 16. However, we note that exhibit 

16 calculated the value of Keith’s retention shares from 2017 

through 2020 based on the December 31, 2020, market price of 

Union Pacific stock, despite the fact that these shares had not 

yet vested at that time. While a flexible approach is used to calculate parents’ respective incomes for child support purposes, 

such calculations “‘should not be based on income that is 

“speculative in nature and over which the employee has little or 

no control.”’” Vanderveer v. Vanderveer, 310 Neb. at 218, 964 

N.W.2d at 710-11. Attempting to average the value of Keith’s 

unvested retention shares in this manner necessarily invites the 

speculation cautioned against by the Nebraska Supreme Court, 

as those shares may vest with a lower, equal, or higher value 

than Union Pacific’s stock market price on December 31, 2020. 

Accordingly, we conclude the district court abused its discretion in calculating Keith’s monthly income to the extent that 

this calculation averaged the value of Keith’s unvested retention shares.

Jamie argues that this court should calculate Keith’s income 

for child support purposes by averaging his total income 

from 2017 through 2021. As set forth previously, the incomes 

reported in Keith’s W-2 forms were $249,222 in 2017; $249,386 

in 2018; $253,271 in 2019; and $226,919 in 2020. Keith 

also testified that his 2021 income would total approximately 

$229,164. Adding these amounts together provides a total of 
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$1,207,962, and dividing that amount over 5 years results in an 

average annual income of $241,592.40.

Although Jamie’s approach is representative of a more typical income averaging calculation, we find that this calculation 

would neglect the balance of equities in this case. The evidence 

indicates that the number of retention shares Keith has received 

as compensation has decreased from 550 shares in 2014 to just 

34 shares in 2021. While there is also indication that the value 

of these shares has increased from “$134 [in December 2017] 

to [$]208” in December 2020, we observe that the decrease 

in the number of shares received has substantially surpassed 

the increase in the shares’ market value. We further note that 

Keith’s annual bonuses have also been steadily decreasing 

from $50,000 in 2018 to $24,000 in 2021. In light of the record 

in this case, we find that averaging Keith’s income from prior 

years would yield an inequitable result given the substantial 

reduction both in his annual bonus and in the number of retention shares awarded as compensation.

[6] We note that as a general matter, the parties’ current earnings are to be used in calculating child support. See Armknecht 

v. Armknecht, 300 Neb. 870, 916 N.W.2d 581 (2018). Keith 

affirmed that at the time of the modification hearing, he knew 

“almost to the dollar . . . what [he] will make in 2021,” and he 

agreed that his total income for 2021 would be $229,164, or 

$19,097 per month. In consideration of the evidence regarding Keith’s income, we conclude that Keith’s 2021 income 

provides the most equitable and least speculative result in calculating child support. Accordingly, for purposes of calculating 

Keith’s child support obligation, we determine Keith’s gross 

monthly income to be $19,097.

(b) Jamie’s Income

In his cross-appeal, Keith argues that the district court 

abused its discretion in the amount of income imputed to Jamie 

and claims the court should have adopted his calculation of 

Jamie’s income.
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(i) Trial Evidence

Jamie’s employment with Union Pacific ended in November 

2020. Jamie reported $109,668 as income in her 2019 tax 

return, and this matches her 2019 salary as described by her 

2019 compensation statement from Union Pacific. Her 2019 

compensation statement also indicates that her salary increased 

to $112,404 as of March 1, 2020, and her compensation for 

2020 included a cash bonus of $12,000 and an award of retention shares granted on February 6 with a then-current value of 

$11,000. Following her termination of employment, Jamie was 

provided a cash severance payment of $93,670 and cash bonus 

of $10,000. Her severance also included “[p]rorated vesting of 

outstanding equity awards” from 2017 through 2019, and she 

received 273 vested retention shares.

(ii) Calculation of Jamie’s Income

In its order, the district court imputed $9,139 in monthly 

income to Jamie, finding that she “should be assessed her last 

year’s income while employed at Union Pacific.” The court 

further determined that Jamie’s severance package, which it 

found to be worth approximately $130,000, should not be 

counted as income in the child support calculation because “it 

was a one-time payment.”

Keith identifies that Jamie’s 2020 salary and cash bonus 

total $124,404, and he directs this court to exhibit 18, which 

is a copy of his child support calculation worksheet offered as 

an aid to the district court. Exhibit 18 sets Jamie’s income at 

$10,417 per month, or $125,004 annually. Keith argues that this 

amount is “closer” to Jamie’s 2020 salary and cash bonus as 

set forth in her 2019 compensation statement and that exhibit 

18 should therefore have been adopted. Brief for appellee on 

cross-appeal at 21. He also asserts that exhibit 18 “ran both 

parents as ‘Head of Households’” and “better approximates 

Keith’s income for child support purposes than a single tax filing status.” Brief for appellee on cross-appeal at 21.
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On our de novo review of the record, we find that the district court abused its discretion in imputing a gross monthly 

income of $9,139 to Jamie. We observe that this amount taken 

over 12 months equals $109,668, her reported salary for 2019. 

However, while it is true that Jamie’s employment was terminated before she received her full 2020 salary of $112,404, 

we note that her earnings from March 2020 until her termination in November 2020 reflected her 2020 salary. During this 

timeframe, Jamie earned approximately $9,367 per month for 

over 6 months. We find that her most recent monthly income 

best represents her present earning capacity and that it would 

therefore be appropriate to impute $9,367 per month in gross 

income to Jamie. Although Keith urges this court to account 

for Jamie’s $12,000 bonus in the calculation of her income, 

we conclude that it would be speculative to include this 

amount, as it is unclear whether Jamie’s future compensation 

would include similar bonus payments in addition to her salary. Accordingly, we determine Jamie’s monthly income to be 

$9,367 for purposes of calculating child support.

2. Other Factors in Child 

Support Calculation

In addition to the calculation of Keith’s income, Jamie raises 

other issues concerning the district court’s child support calculation. We proceed to examine these issues before setting forth 

a modified child support worksheet.

(a) Keith’s Filing Status

Jamie argues that the district court erred in determining that 

Keith’s tax filing status was single for purposes of calculating 

child support. She argues that this finding was contrary to the 

evidence presented at trial.

In its order, the district court found in pertinent part that 

“although there was testimony that [Keith] has remarried, 

there was no evidence as to [what] his current filing status 

is with his new spouse. As such, [his] filing status should 
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be single.” However, Keith testified that in addition to having remarried, he files his tax returns jointly with his current 

wife, and his 2018 and 2019 tax returns reflect his filing status as “Married filing jointly” with his current wife. Further, 

Keith’s proposed child support calculation set his filing status 

to “Head of Household,” and Jamie’s proposed calculation set 

Keith’s filing status to “Married Filing Jointly.” Our de novo 

review of the record does not reveal any evidence supporting the district court’s factual findings that there was no evidence regarding Keith’s filing status with his current spouse. 

Accordingly, we find the district court abused its discretion in 

finding that Keith’s tax filing status should be “Single” in the 

child support calculation.

[7] Jamie argues that Keith’s tax filing status should be married filing jointly based on his filing status as set forth in his 

2018 and 2019 tax returns. Keith conversely argues that doing 

so would “result in an inclusion of [his] current wife’s standard 

tax deduction in the calculator without a determination of the 

actual tax rate paid by [him] and his wife on their combined 

gross incomes” and that this would “force[] [his] current wife 

to contribute to child support for her husband’s children.” Brief 

for appellee at 14. He also notes that “none of the [child support] calculator’s [tax filing status] choices will result in an 

accurate determination of [a remarried child support obligor’s] 

income for child support purposes.” Id. As we further examine 

the arguments made by both parties, we initially note that the 

choice of tax filing status when running a child support calculation should correlate with a party’s actual tax liability as 

closely as possible. In this case, the tax filing status designated 

in the child support calculation impacts the resulting child support owed by greater than $100 per month.

While Jamie’s argument that Keith should be designated 

as “Married Filing Jointly” in the child support calculation is 

logical given the evidence that he in fact filed his tax returns 

using that tax filing status, our de novo review of the record 

compels us to conclude otherwise. We first note that the 
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income ranges comprising the federal tax brackets for married 

taxpayers filing jointly for the 2021 tax year are double the 

income ranges applicable to single taxpayers. See Rev. Proc. 

2020-46 I.R.B. 1016, 1018-19. For example, a single taxpayer 

is taxed 10 percent on income up to $9,950 while married 

taxpayers filing jointly are taxed 10 percent on income up to 

$19,900. See id. The standard deduction for married taxpayers 

filing jointly is similarly double the standard deduction available to single taxpayers. See id. at 1022 (standard deduction 

for single taxpayers in 2021 is $12,550; standard deduction 

for married taxpayers filing jointly in 2021 is $25,100). From 

these figures, it is apparent that the “Married Filing Jointly” 

status operates on the basis that the taxable income and applicable deductions are attributable to two taxpayers. The practical effect of this arrangement is that a married couple filing 

jointly will generally owe less in taxes than a single taxpayer 

on the same amount of income. See id.

Keith’s 2018 and 2019 tax returns indicate that he filed his 

taxes jointly with his current wife. However, these tax returns 

also account for W-2 form earnings not attributable to Keith. 

As described previously, Keith’s W-2 forms indicate individual 

income of $249,386 in 2018 and $253,271 in 2019. In contrast, 

his joint tax returns report total W-2 form earnings of $370,386 

in 2018 and $377,214 in 2019. Although the record does not 

contain specific evidence regarding earnings attributable to 

Keith’s current wife, our review of the evidence in this case 

indicates that Keith’s W-2 form earnings constitute approximately two-thirds of his total marital income.

Setting Keith’s filing status to “Married Filing Jointly” 

for purposes of calculating his child support obligation has 

the effect of reducing the amount of federal income taxes 

deducted from his monthly income in accordance with the 

requirements of Neb. Ct. R. § 4-205(A) (rev. 2016). In turn, 

this reduced deduction would then result in a larger net 

income from which to calculate the amount of child support 

owed, resulting in a larger child support obligation. However, 
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using the “Married Filing Jointly” status in this instance would 

not be appropriate, as it significantly understates Keith’s proportional share of the total joint tax liability shared with his 

current wife by attributing to Keith his current wife’s share 

of their joint standard deduction without accounting for her 

individual income. We also note that the child support calculator provided through the Nebraska State Bar Association, and 

utilized by the parties, the district court, and this court, cautions against this outcome when it instructs that the “Married 

Filing Jointly” tax filing status should be used only “in cases 

of a person who will be married after entry of the final order, 

and their spouse does not work or produce income.” While 

such guidance is not binding on this court, we conclude that it 

is instructive on this issue, and we accordingly decline to set 

Keith’s filing status to “Married Filing Jointly” for purposes 

of our child support calculation.

In a similar vein, we further conclude that it would be 

improper to set Keith’s filing status to “Single” for purposes 

of calculating his child support obligation. Upon examination 

of Keith’s W-2 forms and tax returns, it is evident that his 

employment compensation comprises a significant majority of 

the total combined income with his current wife despite the 

decrease to his individual income after 2019. Consequently, 

setting his filing status to “Single” fails to account for his 

proportionate share of the marital standard deduction and overstates his share of federal income tax liability, resulting in a 

lower child support obligation that we find inappropriate in 

our de novo review of the record. Accordingly, we decline 

to set Keith’s filing status to “Single” in our calculation of 

child support.

Keith assigned to himself the “Head of Household” filing 

status in his proposed child support calculation offered to the 

district court, and we find “Head of Household” to be the 

most appropriate filing status to use in calculating Keith’s 

child support obligation. It is true that Keith does not meet 

the requirements for declaring this filing status for purposes 
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of filing a tax return under the Internal Revenue Code, primarily due to his current marriage and the evidence indicating 

that Keith historically exercised less overnight parenting time 

than Jamie. See I.R.C. § 2(b)(1)(A)(i) (2018) (individual considered head of household if such individual is not married at 

close of tax year and maintains household which constitutes 

principal place of abode for “qualifying child” as defined 

by I.R.C. § 152(c) (2018) if such child is not married or not 

exempt under § 152(b)(2) and (3)). However, for purposes of 

trying to correlate Keith’s approximate tax liability with the 

filing statuses available on the child support calculator, we 

note that the standard deduction for the “Head of Household” 

filing status for the 2021 tax year is $18,800, approximately 

50 percent larger than the standard deduction for single taxpayers. See Rev. Proc. 2020-46 I.R.B. at 1022. We also 

observe that the tax liability associated with the “Head of 

Household” filing status is slightly lower than the liability 

associated with the “Single” filing status. See id. at 1018-19. 

In other words, using “Head of Household” as a filing status 

for Keith in calculating child support strikes a reasonable 

balance between the underwithholding of taxes that would 

occur if we used “Married Filing Jointly” (resulting in higher 

child support) and the overwithholding of taxes that would 

occur if we used “Single” (resulting in lower child support). 

Accordingly, we conclude that the standard deduction and tax 

brackets attributed to the “Head of Household” status more 

closely align with Keith’s proportionate share of his combined 

marital income and corresponding joint federal income tax 

obligation, and we therefore determine that Keith’s filing status should be treated as “Head of Household” for purposes of 

our child support calculation.

As a final note on this tax filing status issue, we caution 

litigants and attorneys that they should not expect a trial court 

or appellate court to engage in mathematical and tax analyses 

to determine an appropriate filing status when calculating 

child support. If the parties are not in agreement on what 
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tax filing status should be used for each parent, then specific 

evidence must be presented to the trial court to support the 

tax filing status requested. In this case, we found an abuse 

of discretion by the district court’s use of “Single” as a filing 

status for Keith because there was no evidence to support it 

and neither party requested it. However, if the district court 

had used a tax filing status for Keith proposed by either party 

and no specific evidence was adduced as to why one filing 

status was more appropriate than the other, we would defer to 

the trial court’s decision and find no abuse of discretion.

(b) Tax Exemptions and Child Tax Credit

Jamie claims the district court improperly determined Keith’s 

tax exemptions and failed to properly allocate the child tax 

credit for the parties’ still eligible child.

Keith affirmed on cross-examination that he has claimed 

“three exemptions on [his] state taxes” each year for himself, 

his current wife, and Brock. His tax returns further indicate 

that he claimed the child tax credit for Brock in both 2018 and 

2019, and Brock is the only child of the parties who remains 

eligible for the child tax credit.

Conversely, Jamie’s tax returns indicate that she has claimed 

two exemptions each year for herself and Nathan. Prior to 

2019, she claimed the child tax credit for Nathan; however, as 

of 2019, Nathan was no longer eligible for the child tax credit. 

In her 2019 tax return, Jamie claimed a tax credit for Nathan 

as a dependent.

Upon our review of the record in this case, we conclude 

the district court abused its discretion in allocating Keith’s tax 

exemptions and child tax credits. No evidence was presented 

indicating that Keith claimed only two exemptions, and the 

only evidence presented regarding this issue indicated that he 

claimed three. Further, the parties’ tax returns indicate that 

only Keith has claimed the child tax credit for Brock, and 

we see no indication that the parties ever alternated the child 

tax credits for their children. Accordingly, for purposes of the 
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calculation of Keith’s child support obligation, we find that the 

three tax exemptions he has historically claimed and the child 

tax credit for Brock should be attributed to Keith.

(c) Parties’ Overnight Parenting Time

Jamie claims the district court abused its discretion in failing 

to account for her “additional 10 overnights per year” with the 

children in its calculation of child support. Brief for appellant 

at 24. She argues there was no dispute by the parties that she 

had exercised an additional 10 days of parenting time during the years prior to the modification, and the district court 

should have factored those additional days into its calculation 

of child support.

We initially note that the December 2011 decree and parenting plan effectively divided parenting time equally between 

the parties. Although Jamie requested modification of the 

parenting plan in the “Answer and Counterclaim” filed on 

July 22, 2020, she did not request modification of the parenting plan in the “Answer and Amended Counterclaim” filed on 

December 3.

There was no dispute between the parties regarding the 

additional overnights exercised by Jamie. The district court 

found that Jamie “has an expectancy of additional parenting 

time due to the right of first refusal utilized for [Keith’s] business travel” and that “at most, [she] has had ten extra days per 

year with the children” prior to the modification. However, 

Jamie abandoned her request to modify the parenting plan, and 

the court did not modify the parenting plan in its order. We are 

not persuaded that the court’s recognition that Jamie has historically exercised an additional 10 days of parenting time per 

year constitutes a parenting time adjustment in this case, and, 

as the court observed, “[Keith] testified that, if he should need 

to travel for work, he is able to be flexible and not lose parenting time with the children.” Accordingly, we find the court 

did not abuse its discretion in allocating 1821⁄2 days to each 

party in its child support calculation. See Hall v. Hall, 26 Neb. 
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App. 877, 924 N.W.2d 733 (2019) (no basis for district court 

to adjust days attributed to each party in child support calculation when court found no material change in circumstances 

existed to warrant change in custody or adjustment to division 

of parenting time), disapproved on other grounds, Fichtl v. 

Fichtl, 28 Neb. App. 380, 944 N.W.2d 516 (2020).

3. Child Support Calculation 

and Cost-Sharing Division

We have concluded the district court’s child support calculation included errors as described previously. We have 

completed our own joint custody child support calculation 

worksheet consistent with our findings, and this worksheet is 

attached to this opinion as appendix A.

Under our de novo calculation, Keith’s monthly child support obligation should be $638 for two children and $426 

for one child. This calculation alters the parties’ division of 

costs for the children, with Keith responsible for 66 percent 

of such expenses and Jamie responsible for the remaining 

34 percent.

4. Material Change in Circumstances

Jamie argues that a material change in circumstances has 

not occurred in this case to warrant modification of Keith’s 

original child support obligation as set forth in the December 

2011 decree.

[8,9] 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. Tilson v. Tilson, 307 Neb. 275, 948 N.W.2d 768 

(2020). Among the factors to be considered in determining 

whether a material change of circumstances has occurred are 

changes in the financial position of the parent obligated to pay 

support, the needs of the children for whom support is paid, 

good or bad faith motive of the obligated parent in sustaining 
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a reduction in income, and whether the change is temporary 

or permanent. Fetherkile v. Fetherkile, 299 Neb. 76, 907 

N.W.2d 275 (2018). Neb. Ct. R. § 4-217 further provides:

Application of the child support guidelines which 

would result in a variation by 10 percent or more, but not 

less than $25, upward or downward, of the current child 

support obligation, child care obligation, or health care 

obligation, due to financial circumstances which have 

lasted 3 months and can reasonably be expected to last for 

an additional 6 months, establishes a rebuttable presumption of a material change of circumstances.

As described above, we have calculated Keith’s modified 

child support obligation to be $638 for two children. The dissolution court initially calculated Keith’s child support obligation 

for two children to be $394.72 per month under the Nebraska 

Child Support Guidelines based on the expiration of his annuity income and the emancipation of his child from a prior marriage. However, the December 2011 decree imposed an upward 

deviation to Keith’s child support obligation and ordered Keith 

to pay $1,000 per month in child support for two children 

beginning on June 1, 2013.

Given the changes in Keith’s income and our resulting child 

support calculation, we find that the evidence in this case 

establishes the rebuttable presumption set forth in § 4-217. 

At the time of the district court’s modification, Keith’s 2021 

salary had been in effect for 3 months, and his testimony on 

cross-examination indicated that there was no dispute that his 

2021 income would remain stable for the remainder of the 

year. Accordingly, we find that Keith’s change in financial 

circumstances had lasted for 3 months and could be reasonably 

expected to last for an additional 6 months. Further, regardless 

of whether we compare our calculation of Keith’s child support to the December 2011 decree’s upward deviation or the 

dissolution court’s preliminary calculation under the child support guidelines, the 10-percent upward or downward variation 

requirement of § 4-217 has been satisfied in this case.
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Jamie argues that the application of the § 4-217 presumption in this case is barred by this court’s holding in Brodrick 

v. Baumgarten, 19 Neb. App. 228, 809 N.W.2d 799 (2011). In 

Brodrick v. Baumgarten, the parties had divorced in 2001 and 

subsequently entered into a stipulated modification in which 

they agreed, in pertinent part, that the father would pay $200 

per month in child support, and this amount was a deviation 

from the guidelines. Less than 5 months later, the father sought 

further modification based in part on alleged changes to his 

financial circumstances. Specifically, the father alleged that his 

employment had changed from full-time to part-time employment, although his pay rate remained $10 per hour. Despite 

these alleged changes, the father asked the court to impute 

an income of $10 per hour for full-time employment, which 

was his income at the time of the first modification. The district court found that a material change in circumstances had 

occurred and calculated the father’s new support obligation 

under the guidelines to be $3.12. However, the court found 

this amount to be minimal and terminated the father’s support obligation.

On appeal, this court reversed the district court’s modification. We concluded that a material change in circumstances had 

not occurred concerning the father’s financial circumstances 

because he “specifically asked the court to impute his income 

level as $10 per hour for full-time employment” in the second 

modification and this “was identical to his earning level at the 

time of the prior order.” Brodrick v. Baumgarten, 19 Neb. App. 

at 233, 809 N.W.2d at 803. Given those facts, this court found 

it improper to apply the presumption set forth in § 4-217 to the 

circumstances, as the father’s child support obligation of $200 

per month under the prior order was a deviation he stipulated 

to and was already “more than a 10-percent variation from 

the amount the guidelines would have required.” Brodrick v. 

Baumgarten, 19 Neb. App. at 233, 809 N.W.2d at 803.

[10] Jamie argues that Brodrick v. Baumgarten, supra, 

“makes clear that Keith’s higher income cannot constitute 
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a material change in circumstances to lower his stipulated 

support obligation” and that “if a child support payor’s 

income is equal to or greater than the payor’s income at the 

time of the last support order, then the § 4-217 presumption 

is effectively rebutted.” Brief for appellant at 29. However, 

Jamie’s argument misappropriates this court’s reasoning. We 

read Brodrick v. Baumgarten, supra, to stand for the proposition that when a prior order of child support constitutes 

a deviation from the Nebraska Child Support Guidelines, a 

party may not seek modification of that order solely on the 

basis that the guidelines would result in a different child support amount. Fundamental to this court’s analysis in Brodrick 

v. Baumgarten, supra, was the fact that the father’s imputed 

income was equal to his income at the time of the prior order, 

which meant that there had been no change in his financial 

circumstances to begin with. In contrast, the record presently 

before this court makes clear that Keith’s financial circumstances have changed since the entry of the December 2011 

decree. Accordingly, the reasoning underpinning our decision 

in Brodrick v. Baumgarten, supra, is not applicable to the 

present case.

Further evidence also supports a finding of a material 

change in circumstances. In addition to the changes in the parties’ individual financial circumstances, the evidence indicates 

that the circumstances surrounding the children’s expenses, 

which formed the basis of the upward deviation, have changed. 

The upward deviation in the December 2011 decree accounted 

for approximately $600 in additional monthly child support, 

and this deviation was intended for Jamie to unilaterally 

cover the children’s expenses as set forth in the decree. The 

evidence presented at trial indicates that Jamie was paying 

approximately $280 per month in direct expenses for Nathan 

and Brock in the years leading up to this modification action. 

Conversely, Jamie did not dispute that Keith had been paying 

approximately $440 per month throughout 2020 for Nathan’s 

car payments and cell phone, as well as other miscellaneous 
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items for both sons, and these expenses were in addition to 

his child support payments. In light of our modified child support calculation and the evidence of the changes in the parties’ 

financial circumstances and cost-sharing arrangement, we conclude that there has been a material change in circumstances 

warranting modification of Keith’s child support obligation. 

Accordingly, we modify the district court’s order to reflect our 

child support calculation as set forth in appendix A.

5. Retroactive Modification

Jamie claims the district court erred in ordering Keith’s modified child support to be retroactive to July 1, 2020, without 

also retroactively modifying the parties’ cost-sharing responsibilities and Jamie’s requirement under the December 2011 

decree to cover direct expenses for the children. She argues 

that Keith would be provided an unfair windfall if he is also not 

required to cover his share of the expenses unilaterally covered 

by Jamie from July 1, 2020, until April 1, 2021.

[11-13] In determining whether to order a retroactive modification of child support, a court must consider the parties’ status, character, situation, and attendant circumstances. Johnson 

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

equities to the contrary, modification of a child support order 

should be applied retroactively to the first day of the month 

following the filing day of the application for modification. Id.

The initial determination regarding the retroactive application 

of a modification order is entrusted to the discretion of the trial 

court and will be affirmed on appeal absent an abuse of discretion. Bowmaker v. Rollman, 29 Neb. App. 742, 959 N.W.2d 

819 (2021).

As previously described, the record indicates that Jamie was 

unilaterally paying approximately $280 per month in direct 

expenses for Nathan and Brock. The record also indicates that 

Keith was unilaterally paying approximately $440 per month 

in direct expenses for Nathan and Brock. Added together, 

these amounts reflect monthly expenditures of approximately 
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$720. When factoring in each party’s percentage share of 

expenses under our modified child support calculation, Keith 

would have been responsible for approximately $475 of these 

monthly expenditures while Jamie would have been responsible for $245. While the parties’ unilateral payments do not 

perfectly align with their percentage shares of expenses for the 

children under our modified child support calculation, we cannot say it was an abuse of discretion for the district court to not 

modify the parties’ cost-sharing arrangement to be retroactive 

to July 1, 2020, based on their respective payments for their 

children’s expenses.

VI. CONCLUSION

For the reasons set forth above, we modify the district 

court’s order so that Keith’s modified child support obligation 

is consistent with the worksheet attached to this opinion. We 

affirm the remainder of the district court’s order.

Affirmed as modified.

(See pages 65-66 for appendix A.)
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Case Name: Maskil-Cronin v. Cronin

Worksheet 1 - Basic Income and Support Calculation

Mother: Head of Household / 2 Exemptions / Railroad Retirement

Father: Head of Household / 3 Exemptions / Railroad Retirement

Line Description Mother Father

1 Gross Earned Taxable Income $9,367.00 $19,097.00

1 Gross Unearned Taxable Income $0.00 $0.00

1 Tax-Exempt Income $0.00 $0.00

2.a Taxes - Federal $1,252.83 $3,893.53

2.a Taxes - Nebraska $442.59 $1,096.70

2.b FICA - Social Security / Railroad Retirement* $1,014.40* $1,171.45*

2.b FICA - Medicare $135.82 $298.78

2.c Retirement $374.68 $763.88

2.d Previously Ordered Support $0.00 $0.00

2.e Regular Support for Other Children $0.00 $0.00

2.f Health Insurance Premium for Parent $0.00 $0.00

Other Deductions $0.00 $0.00

Child Tax Credit ($0.00) ($166.67)

2.g Total Deductions $3,220.32 $7,057.67

3 Net Monthly Income $6,146.68 $12,039.33

4 Combined Net Monthly Income $18,186.01

5 Combined Net Annual Income $218,232.08

6 Each Parent's Percent 33.8% 66.2%

7 Monthly Support from Table (2 Children) $2,970.00

8 Health Insurance Premium for Children $0.00 $248.00

9 Total Obligation $3,218.00

10 Each Parent's Monthly Share $1,087.68 $2,130.32

11 Credit For Health Insurance Premium Paid ($0.00) ($248.00)

12 Each Parents' Final Share (2 Children, rounded) $1,088.00 $1,882.00

Worksheet 4 - Number of Children Calculation (final shares are rounded to the nearest whole dollar)

No. 

Children

Table 

Amt.

Table + Health 

Ins.

Mother's Share of 

Total

Father's Share of 

Total

Mother's Final 

Share

Father's Final 

Share

2 $2,970.00 $3,218.00 $1,087.68 $2,130.32 $1,088.00 $1,882.00

1 $2,099.00 $2,347.00 $793.29 $1,553.71 $793.00 $1,306.00

APPENDIX A
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Worksheet 3 - Joint Physical Custody (2 Children)

Line Description Mother Father

1 Each Parent's Percent Contribution 33.8% 66.2%

2 Monthly Support (Worksheet 1 Line 7) $2,970.00

3 Joint Physical Support (Line 2 * 1.5) $4,455.00

4 Each Parent's Share (Line 1 * Line 3) $1,505.79 $2,949.21

5 No. Days Custody 182.5 182.5

6 Percentage of Year (Line 5 / 365) 50% 50%

7 Mother's Obligation to Father $752.90

8 Father's Obligation to Mother $1,474.61

9 Father's Obligation for Support $721.71

10 Children's Health Insurance Premium $0.00 $248.00

11 Combined Children's Health Insurance Premiums $248.00

12 Each Parent's Share of Premium (Line 11 * Line 1) $83.82 $164.18

13 Amount of Premium Paid (Line 10) $0.00 $248.00

14 Amount Owed to Other Parent (Line 12 - Line 13) $83.82 $0.00

15.a Which Parent Owes Basic Support Father

15.b Which Parent Owes for Health Insurance Mother

15.c Does the Same Parent Owe on Lines 15a and 15b No

16 Total Support Owed by Father (rounded) $638.00

Worksheet 3 - Joint Physical Custody (1 Child)

Line Description Mother Father

1 Each Parent's Percent Contribution 33.8% 66.2%

2 Monthly Support (Worksheet 1 Line 7) $2,099.00

3 Joint Physical Support (Line 2 * 1.5) $3,148.50

4 Each Parent's Share (Line 1 * Line 3) $1,064.19 $2,084.31

5 No. Days Custody 182.5 182.5

6 Percentage of Year (Line 5 / 365) 50% 50%

7 Mother's Obligation to Father $532.10

8 Father's Obligation to Mother $1,042.15

9 Father's Obligation for Support $510.06

10 Children's Health Insurance Premium $0.00 $248.00

11 Combined Children's Health Insurance Premiums $248.00

12 Each Parent's Share of Premium (Line 11 * Line 1) $83.82 $164.18

13 Amount of Premium Paid (Line 10) $0.00 $248.00

14 Amount Owed to Other Parent (Line 12 - Line 13) $83.82 $0.00

15.a Which Parent Owes Basic Support Father

15.b Which Parent Owes for Health Insurance Mother

15.c Does the Same Parent Owe on Lines 15a and 15b No

16 Total Support Owed by Father (rounded) $426.00