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Davis recanted the next day. At trial, Logemann also recalled 

a conversation he had with Davis several days after the murders about the possibility of a gun being left at the scene. 

Logemann testified that Davis was concerned that through 

DNA evidence, investigators would be able to link the gun 

to Davis as the shooter. The .40-caliber semiautomatic pistol 

abandoned at the site of the murders was consistent with bullets recovered from the scene.

The prosecution presented a significant amount of evidence 

to establish Davis’ involvement at every step, from the planning stage of the robbery to the actual robbery attempt and 

murders, to disposing of one of the murder weapons, and to 

Davis’ incriminating statements after the murders occurred. 

The evidence was sufficient such that a rational trier of fact, 

viewing the evidence in a light most favorable to the prosecution, could find that Davis was guilty of all charges beyond a 

reasonable doubt.

Davis’ second assignment of error is without merit.

VI. CONCLUSION

We affirm Davis’ convictions and sentences.

Affirmed.

Elizabeth Grant Johnson, now known as Elizabeth

D’Allura, appellant and cross-appellee, v. Kari

Johnson, appellee and cross-appellant.

___ N.W.2d ___

Filed May 15, 2015. No. S-13-775.

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

dissolution decree is a matter entrusted to the discretion of the trial court, whose 

order is reviewed de novo on the record, and which will be affirmed absent an 

abuse of discretion by the trial court. The same standard applies to the modification of child support.

2. Judgments: Appeal and Error. When reviewing questions of law, an appellate 

court has an obligation to resolve the questions independently of the conclusion 

reached by the court below.

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

5. Child Support: Evidence. Generally, 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.

6. Social Security. Social Security benefits are not a mere gratuity from the federal 

government but have been earned through an employee’s payment of Social 

Security taxes.

7. Child Support: Appeal and Error. Whether a child support order should be 

retroactive is entrusted to the discretion of the trial court, and an appellate court 

will affirm its decision absent an abuse of discretion.

8. 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.

9. 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 date of the application for modification.

10. Modification of Decree: Child Support. In modification of child support proceedings, the children and the custodial parent should not be penalized by delay 

in the legal process, nor should the noncustodial parent gratuitously benefit from 

such delay.

11. Child Support. The general rule is that no credit is given for voluntary overpayments of child support, even if they are made under a mistaken belief that they 

are legally required.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Irwin and Pirtle, Judges, on appeal 

thereto from the District Court for Douglas County, Shelly R. 

Stratman, Judge. Judgment of Court of Appeals affirmed in 

part and in part reversed, and cause remanded with directions.

Rodney C. Dahlquist, Jr., and Christine A. Lustgarten, of 

Dornan, Lustgarten & Troia, P.C., L.L.O., for appellant.

Virginia A. Albers, of Slowiaczek, Albers & Astley, P.C., 

L.L.O., for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Miller-Lerman, J.

I. NATURE OF CASE

Kari Johnson filed a petition for further review of the 

Nebraska Court of Appeals’ decision which affirmed in part 
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and reversed in part the order of the district court for Douglas 

County which modified his child support obligation. We conclude that (1) the Court of Appeals correctly determined that 

the district court erred when it imputed to Elizabeth Grant 

Johnson, now known as Elizabeth D’Allura, a wage-earning 

capacity of $52,000 per year and reversed the order and 

remanded the cause for a hearing on Elizabeth’s wage-earning 

capacity, (2) the Court of Appeals did not err when it affirmed 

the district court’s conclusion that the Social Security benefits 

paid to the children were a gratuity and that Kari should not 

be given a credit for them upon remand, and (3) although 

the Court of Appeals correctly affirmed the district court’s 

decisions that a downward modification in Kari’s child support could be retroactive to the month after the filing of the 

application to modify, that the judgment against Elizabeth for 

$25,472.11 should be reversed, and that a judgment against 

Elizabeth for $2,357.90 should be entered, it erred when it 

reasoned that upon remand, Kari could not receive credit 

for overpayments, if any, made during the pendency of the 

modification proceedings for the reason that Kari had continued to pay the $3,000-per-month child support ordered in the 

original decree. To the contrary, the fact that Kari continued 

to pay what had been ordered does not preclude consideration 

of a potential credit after receipt of additional evidence upon 

remand. Accordingly, we affirm in part, and in part reverse and 

remand with directions.

II. STATEMENT OF FACTS

Kari and Elizabeth were married in 1996. Two children were 

born to the marriage: one born in May 1995 and one born in 

July 1998. Kari and Elizabeth were divorced in January 2010, 

when the district court entered a stipulated decree and parenting plan. The dissolution decree, inter alia, provided for joint 

legal custody of the children and awarded physical custody to 

Elizabeth. Per the stipulation, the decree required Kari to pay 

child support of $3,000 per month while both children were 

minors and $1,500 per month when only the younger child was 

a minor.
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Approximately 6 months after entry of the decree of dissolution, Kari moved for an order nunc pro tunc, in which 

motion he asserted that the dissolution court was not aware 

of the Social Security payments the children were receiving 

and that had the dissolution court been aware of the Social 

Security benefits, Kari “would be responsible for far less than 

the $3,000” monthly amount of child support. Kari later withdrew the motion, and thus the dissolution court never entertained it.

At the January 2013 modification trial which gives rise 

to this appeal, Kari acknowledged that when he stipulated 

to the terms of the original decree, filed on January 10, 

2010, he understood that the children were receiving Social 

Security benefits by virtue of his status as a retired taxpayer. 

He acknowledged that the receipt of the Social Security benefits was in addition to his obligations for child support and 

alimony. The record shows that the children received Social 

Security benefits in 2010, 2011, and part of 2012.

Nine months after the decree of dissolution was entered, 

Kari moved to vacate the decree, asserting that the decree was 

void because the district court lacked personal jurisdiction over 

him. We affirmed the district court’s order denying the motion 

to vacate the decree of dissolution. Johnson v. Johnson, 282 

Neb. 42, 803 N.W.2d 420 (2011). At the modification trial, 

Kari testified that he pursued the personal jurisdiction issue 

rather than first applying for a modification, because he wanted 

a “do-over” and to have the entire decree overturned.

In September 2011, Kari filed an application to modify the 

decree, in which he sought to be awarded physical custody 

based on the children’s preference and to have child support 

recalculated accordingly. Elizabeth filed a cross-application 

in which she sought sole legal custody based on Kari’s uncooperative behavior and his failure to pay his share of medical bills and to maintain his life insurance. Kari thereafter 

amended his application to allege that in the event physical 

custody remained with Elizabeth, his child support obligation 

should be modified downward because he had experienced 

a decrease in income which constituted a material change in 
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circumstances. The parties ultimately stipulated to a modification of physical custody to a joint physical (as well as legal) 

custody arrangement.

In January 2013, trial was eventually held on the issue of 

appropriate modification of child support. A review of the 

supplemental transcript shows that during the pendency of 

Kari’s motion to modify which had been filed in September 

2011, a trial was set for April 10, 2012; the parties “settled” the 

matter, but after the trial date had passed, Elizabeth repudiated 

the settlement. On September 6, Kari sought temporary abatement of child support. And on October 19, 2012, Kari filed an 

additional motion for temporary adjustment of child support 

and a motion for credit. Elizabeth successfully sought continuance of Kari’s temporary motions to adjust or credit child support. Specifically, the district court ordered that Kari’s motions 

for abatement or credit of child support were to be addressed 

at trial. The trial was set for January 2013. The judge who 

heard the modification matter was not the judge who entered 

the decree.

At the time of trial, Kari was 69 years old and Elizabeth 

was 47 years old. Both parties testified that Elizabeth had 

remained in the family home because they wanted to maintain 

stability for the children. The record reflects that at the time 

of trial, Elizabeth’s only income was payments she received 

from a blind trust. She testified that she generally received 

about $27,000 to $28,000 per year from the trust, or approximately $2,300 per month. Her monthly expenses at the time 

of the modification trial for the mortgage, utilities, and food 

totaled more than $4,000, but she admitted that her food 

expenses would be reduced by the joint custody arrangement. 

Elizabeth testified that she did not have any money. In its ruling on the modification, the district court found that the evidence showed that Elizabeth received a $95,000 inheritance 

during the marriage, the equity in the $500,000 marital home 

in the divorce, and an unexplained deviation upward in child 

support, and that her new husband contributed to the family’s 

home expenses.

Elizabeth had previously been employed by an aircraft 

charter company as a pilot; in 2004, she was employed full 
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time and earned $23,000. There was evidence that Elizabeth 

would be eligible for a copilot position with her former 

employer at a salary of $1,500 per month, or $18,000 per year. 

However, to accept the position, she would have to move from 

Omaha, Nebraska, to California and undergo a minimum of 4 

weeks’ requalification training, which training Elizabeth testified would cost $10,000 and would be deducted from her pay. 

Elizabeth testified that there were no jobs available for her as a 

pilot in the Omaha area. Elizabeth further testified that she had 

an ongoing medical condition which prevented her from attaining the medical clearance necessary to work as a commercial 

pilot. Neither party elicited an explanation of Elizabeth’s medical condition.

At the time of trial, Kari was employed as a director of 

safety at a charter management company for aircraft. Kari testified that he had been involved in the aviation industry for 50 

years. Kari testified that while he “may not be an expert witness,” in his opinion, Elizabeth could earn “anywhere from 60 

to 80,000 a year” as a licensed pilot. Kari testified that he could 

provide “lots of names” of companies paying in the $60,000 

to $80,000 range, “but they’re supposed to be confidential.” 

Kari testified that Elizabeth could earn $52,000 per year at her 

former workplace, though he had “no idea” whether she had 

achieved such earnings there previously. He requested that the 

district court impute a wage-earning capacity of $52,000 per 

year to Elizabeth.

The parties submitted their respective proposed support calculations. Kari proposed that his child support obligation, 

based on joint physical custody, be reduced to $1,692 per 

month, retroactive to October 2011 (the month after he filed for 

modification), and that after the date of the modification order, 

his obligation be set at $450 per month for two children. He 

requested a “credit” of more than $19,000 which would reflect 

the difference between the $3,000 per month he had paid for 

child support since October 2011 (during the pendency of the 

modification) and the new amount he proposed as his obligation during that time. He also requested a credit for almost 

$63,000 for Social Security benefits received by the children 

but never credited against his support obligation.
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Elizabeth testified that she inadvertently removed $2,357.90 

from an account of Kari’s to pay her American Express bill. 

Kari requested a judgment to reimburse him for that amount.

Elizabeth proposed that Kari’s child support obligation, 

based on joint physical custody, be set at $1,095 per month. 

She testified that adjusting the support obligation to give Kari 

a credit for past Social Security benefits paid to the children 

would present a significant hardship for her and the children. 

Elizabeth’s counsel also informed the district court that Kari 

had previously filed a motion seeking to address the Social 

Security benefits but had withdrawn it. Elizabeth’s counsel 

argued that to allow a retroactive credit after the accumulation 

of such benefits for more than 3 years since the decree had 

been entered would be inequitable.

The ensuing orders are complicated and summarized here. In 

summary, the district court entered an order in May 2013; then 

later in May, entered a nunc pro tunc order clarifying certain 

issues; and on August 16, filed an order ruling on Kari’s motion 

to alter or amend in which the district court amended aspects 

of its prior order. The August order is the order appealed from, 

but earlier orders found facts relevant to our consideration 

on further review. For purposes of the issues relevant to this 

appeal concerning child support, the district court ultimately 

made rulings as follows:

Reasonable expenditures for the children, such as clothing 

and extracurricular activities, were allocated between the parents, commencing October 1, 2011, such that Elizabeth would 

be responsible for 40 percent and Kari would be responsible 

for 60 percent.

The district court applied the Nebraska Child Support 

Guidelines, and in connection with its calculation of Kari’s 

child support obligations, the district court used Kari’s earnings at the time of the modification trial, which were less than 

his earnings at the time of the divorce, to calculate his monthly 

income. The district court found Kari’s testimony concerning 

Elizabeth’s earning capacity to be credible and reasonable, 

based on his experience as a pilot and his knowledge of the 

aviation industry, and determined that Elizabeth had a wageearning capacity of $52,000 per year, even though she was 
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not employed at the time of trial. The district court calculated 

Elizabeth’s monthly income based on the $52,000 potential 

wage earnings as well as the approximately $27,000 per year 

that she received as payments from a blind trust. The district 

court did not find Elizabeth’s testimony to the effect that she 

was unable to work due to an unspecified medical condition to 

be credible.

In determining Kari’s child support obligation, the district 

court noted that Kari’s child support obligation from January 

2010, when the divorce decree was entered, through September 

2011, when he filed his application to modify the decree, was 

$3,000 per month as set forth in the stipulated decree. The 

district court determined that Kari’s child support obligation 

should be reduced to $1,658 per month from October 2011, the 

month following the month in which he applied to modify the 

decree, through December 2012. In January 2013, the parties 

began joint physical custody. The district court determined that 

Kari’s child support obligation should be set at $443 per month 

from January 2013 through May 2014, a period during which 

both children would be minors, and $311 per month from June 

2014 until July 2017, a period during which only one child 

would be a minor.

In its several orders, the district court reasoned that because 

Kari had paid an upward adjustment of $3,000 per month 

during the pendency of the modification proceedings but his 

obligation was reduced retroactive to October 2011, Kari had 

in effect overpaid child support. Specifically, in view of the 

fact that, applying the child support guidelines, it had determined that Kari’s child support payment should be reduced 

from $3,000 per month to $1,658 per month from October 

2011 to December 2012, $443 from January 2013 to May 

2014, and $311 from June 2014 to July 2017, and its order was 

not filed until August 16, 2013, the district court determined 

that Kari was entitled to a credit of $41,852.11 as a result 

of his “overpayment” of child support obligations during the 

pendency of the modification proceedings. The district court 

awarded Kari a credit of $16,380 against his future child support obligations and, because the overpayment credit would 

not be wholly consumed, a judgment against Elizabeth for the 
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remaining $25,472.11. This judgment included the $2,357.90 

that Elizabeth had withdrawn from an account of Kari’s to pay 

her American Express bill, but this portion of the judgment is 

not disputed on appeal.

With respect to the payment of Social Security benefits to 

the children, the district court concluded that under Nebraska 

jurisprudence, it could not equitably provide Kari a credit for 

the Social Security benefits received by the children. The district court reasoned that if such benefits had been disclosed 

at the time of the decree of dissolution, it could have reduced 

Kari’s child support obligation by effectively attributing such 

payments to Kari’s child support obligation, but because the 

parties had stipulated to a child support obligation of $3,000 

per month in the stipulated decree, the district court had to treat 

the Social Security benefits as a gratuitous overpayment.

Elizabeth appealed the district court’s order to the Court 

of Appeals, and Kari cross-appealed. In her appeal, Elizabeth 

claimed, inter alia, that the district court erred when it (1) 

determined the parties’ earning capacities and (2) granted Kari 

a credit against future child support obligations for past overpayments of child support during the pendency of these modification proceedings and granted Kari a judgment against her 

for the balance of the credit which exceeded future child support obligations. Elizabeth made another assignment of error 

regarding retroactivity of the modification, which assignment 

of error the Court of Appeals rejected. Elizabeth did not crosspetition for further review of this issue. In his cross-appeal, 

Kari claimed only that the district court erred when it refused 

to award him a credit against his child support obligations for 

the Social Security benefits that had been paid to the children 

based on his work history.

The Court of Appeals affirmed the district court’s orders in 

part, reversed the orders in part, and remanded the cause for 

further proceedings in a memorandum opinion filed October 1, 

2014, in case No. A-13-775. The Court of Appeals determined 

that the district court abused its discretion when it imputed a 

wage-earning capacity of $52,000 per year to Elizabeth. The 

Court of Appeals determined that there was not sufficient 

evidence demonstrating that she could realize such a level 
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of earnings and remanded the cause for the determination 

of “an appropriate level of earning capacity [for Elizabeth] 

that is supported by competent evidence in the record.” The 

Court of Appeals also determined that although the district 

court’s determination that Kari should get relief retroactively 

was not error, because Kari continued to pay the $3,000 per 

month child support required in the decree, the district court 

erred when it granted Kari a credit against future child support obligations and further erred when it entered a judgment 

against Elizabeth for the anticipated unused overpayment of 

child support. Finally, the Court of Appeals rejected Kari’s 

assignment of error on cross-appeal and concluded that the 

district court did not err when it had concluded that the 

Social Security benefits received by the children were a gratuitous payment that could not be credited against Kari’s child 

support obligations. We summarize the Court of Appeals’ 

memorandum opinion in more detail in the analysis portion 

of this opinion.

Kari petitioned for further review of the Court of Appeals’ 

memorandum opinion. We granted the petition.

III. ASSIGNMENTS OF ERROR

Kari claims the Court of Appeals erred when it determined 

that (1) the district court erred when it imputed to Elizabeth 

a wage-earning capacity of $52,000 per year, (2) the district 

court correctly determined that Kari should not be given credit 

against his child support obligation for Social Security benefits 

paid to the children, and (3) the district court erred when it 

gave Kari credit for overpayment of child support obligations 

in the form of a credit against future child support obligations 

and in the form of a judgment against Elizabeth.

IV. STANDARDS OF REVIEW

[1] Modification of a dissolution decree is a matter entrusted 

to the discretion of the trial court, whose order is reviewed 

de novo on the record, and which will be affirmed absent an 

abuse of discretion by the trial court. Garza v. Garza, 288 Neb. 

213, 846 N.W.2d 626 (2014). The same standard applies to the 

modification of child support. Id.
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[2] When reviewing questions of law, an appellate court has 

an obligation to resolve the questions independently of the conclusion reached by the court below. See Jensen v. Jensen, 275 

Neb. 921, 750 N.W.2d 335 (2008).

V. ANALYSIS

1. Elizabeth’s Wage-Earning Capacity

Kari claims that the Court of Appeals erred when it 

reversed the portion of the district court’s order imputing a 

wage-earning capacity of $52,000 per year to Elizabeth and 

remanded the cause for a determination of Elizabeth’s earning 

capacity. We reject this assignment of error.

[3-5] We have previously addressed the law applicable to 

determining a parent’s earning capacity for child support purposes and stated:

In general, child support payments should be set according to the Nebraska Child Support Guidelines. The guidelines provide 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. Earning capacity is not limited to wage-earning capacity, but includes 

moneys available from all sources.” 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.”

Freeman v. Groskopf, 286 Neb. 713, 720, 838 N.W.2d 300, 

307 (2013). Generally, 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. See Johnson v. Johnson, 20 Neb. App. 895, 834 

N.W.2d 812 (2013).

The record shows that at the time of trial, Elizabeth’s actual 

income was about $27,000 to $28,000 per year from a trust. 

The record indicates that the trust income was expected to continue. Therefore, the issue with regard to her earning capacity 

focuses on her ability for wage earning.

At the time of trial, Kari worked as a director of safety at a 

charter management company for aircraft. Based on his nearly 
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50 years in the aviation industry, Kari opined that Elizabeth 

could earn $60,000 to $80,000 per year as a licensed pilot. 

Kari testified that while he knew “lots of names” of companies paying in that range, those names were “supposed to be 

confidential.” Kari requested that the district court impute to 

Elizabeth an annual earning capacity of $52,000, which he 

testified she could earn at her former workplace, though he 

had “no idea” whether she had achieved such earnings there in 

the past. The district court found Kari’s testimony concerning 

Elizabeth’s wage-earning capacity to be credible and reasonable based on his years of experience in the aviation industry 

and determined that Elizabeth had a wage-earning capacity of 

$52,000 per year.

The trial record shows that Elizabeth’s wage earnings had 

peaked at $23,000 in 2004, when she was employed as a fulltime pilot. Elizabeth testified that there were no jobs available for her as a pilot in the Omaha area at the time of trial. 

There was evidence that she was eligible for a pilot position 

with a former employer at a salary of $18,000 per year, but 

that accepting the position would require her to relocate to 

California and pay $10,000 for training. Elizabeth stated 

that a medical condition prevented her from working as a 

commercial pilot. The district court did not find Elizabeth’s 

testimony concerning her unspecified medical condition to 

be credible.

With regard to Elizabeth’s wage-earning capacity, the Court 

of Appeals determined that the record supported imputing 

some level of earning capacity to Elizabeth, but that the only 

evidence setting that figure at $52,000 annually was Kari’s 

unsupported testimony of his opinion of Elizabeth’s potential earnings in the aviation field. There was conflicting evidence regarding Elizabeth’s ability to work as a pilot, and as 

it was permitted to do, the Court of Appeals gave weight to 

the fact that the trial judge heard and observed the witnesses 

and rejected Elizabeth’s version in which she testified that an 

unspecified medical condition rendered her unable to work as 

a pilot. See Brockman v. Brockman, 264 Neb. 106, 646 N.W.2d 

594 (2002). Thus, the Court of Appeals accepted the district 

court’s conclusion that Elizabeth was able to work, but it 
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determined that the district court abused its discretion when it 

imputed an annual wage-earning capacity of $52,000 based on 

the record and remanded the cause for further evidence on this 

issue. Following our de novo review of the evidence, we find 

no error by the Court of Appeals in this regard.

A review of the record shows that although Kari was 

employed in the aviation industry in some capacity for many 

years, he did not testify that he had a specific basis for his purported knowledge of compensation for pilots or positions available for pilots. He did not refer to any research or inquiries on 

the matter, demonstrated limited knowledge of Elizabeth’s past 

earnings, declined to specify names of potential employers, and 

admitted that he “may not be an expert witness.” Further, as 

the Court of Appeals pointed out, the evidence of Elizabeth’s 

full-time job offer with her former employer for $18,000 per 

year called into question Kari’s opinion that she could obtain 

employment there at a rate of $52,000 per year, as well as 

his contention that she is capable of earning that sum. On the 

record before us, it appears that with relocation and training 

requirements, attaining the position with Elizabeth’s former 

employer could require her to exert something more than “reasonable efforts.”

Following our de novo review of the record, we agree with 

the Court of Appeals that the evidence does not support the 

district court’s determination Elizabeth had an annual wageearning capacity of $52,000 and that in so finding, the district 

court abused its discretion. Because determination of the parties’ income or earning capacity is critical to the determination 

of child support, this portion of the order must be reversed and 

the cause remanded for a determination of Elizabeth’s wageearning capacity. Accordingly, we affirm the Court of Appeals’ 

ruling reversing the matter of Elizabeth’s earning capacity and 

remand the cause to the district court.

Kari raises several issues in addition to Elizabeth’s earning 

capacity in his petition for further review. Although the resolution of these issues is not entirely necessary to the disposition 

of the current appeal, we address them below because they 

are relevant to the complete disposition of the matter upon 

remand. See In re Interest of Laurance S., 274 Neb. 620, 742 
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N.W.2d 484 (2007) (appellate court may, at its discretion, discuss issues unnecessary to disposition of appeal where those 

issues are likely to recur during further proceedings).

2. Social Security Benefits

Paid to Children

Kari claims that the Court of Appeals erred when it affirmed 

the district court’s determination that Kari should not be 

given credit against his child support obligation for the Social 

Security benefits which were paid to the children. He contends 

that these benefits should not have been treated as gratuitous 

payments to the children. Kari asserts that he was entitled 

to have his child support obligation offset by the amount of 

Social Security benefits the children have received. We find 

no merit to this assignment of error and therefore affirm the 

decision of the Court of Appeals which affirmed the ruling of 

the district court which deemed the Social Security benefits 

a gratuity.

[6] We have considered the issue of applying Social Security 

benefits to meet a parent’s child support obligation on several 

occasions. E.g., Gress v. Gress, 257 Neb. 112, 596 N.W.2d 

8 (1999); Hanthorn v. Hanthorn, 236 Neb. 225, 460 N.W.2d 

650 (1990); Lainson v. Lainson, 219 Neb. 170, 362 N.W.2d 

53 (1985); Schulze v. Jensen, 191 Neb. 253, 214 N.W.2d 591 

(1974). The cases often involve disability benefits or child 

support arrearages, but we find guidance in their reasoning. 

We have explained that Social Security benefits are not a mere 

gratuity from the federal government but have been earned 

through an employee’s payment of Social Security taxes. See 

Brewer v. Brewer, 244 Neb. 731, 509 N.W.2d 10 (1993). A 

request to apply Social Security benefits to a child support 

obligation is merely a request to identify the source of payment. See Gress v. Gress, supra. A Social Security benefit can 

serve as a substitute source for income. See id.

Cases illustrate that the better practice is to make the dissolution court cognizant of the payment of Social Security 

benefits to the children at the time of entering the decree so 

that the dissolution court can make a fully informed decision. 

See Hanthorn v. Hanthorn, supra (discussing collected cases). 
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It nevertheless remains at the court’s discretion, depending on 

the overall situation of both the parties and children, to order 

child support in addition to the amounts received from Social 

Security. E.g., Lainson v. Lainson, supra.

With respect to the Social Security payments under the facts 

of this case, the district court determined that under Nebraska 

jurisprudence, it could not equitably provide Kari a credit 

for the Social Security benefits received by the children. The 

district court reasoned that if the Social Security benefits had 

been disclosed at the time of the divorce proceedings, the dissolution court could have attributed such payments to Kari’s 

child support obligation. However, because the parties did not 

inform the dissolution court of the Social Security payments 

at the time of the divorce and had agreed to a child support 

obligation of $3,000 per month in the stipulated decree with 

no explanation of the upward deviation, the district court 

determined that it was obligated to treat the Social Security 

benefits as a gratuitous payment. On appeal, the Court of 

Appeals agreed.

Based on the jurisprudence set forth above, the procedural 

history, and the equities of the case, we conclude that the Court 

of Appeals correctly affirmed the district court’s determination 

and we affirm the Court of Appeals’ decision on this issue. The 

record shows that the children received Social Security benefits 

in 2010, 2011, and part of 2012. Kari testified that when he 

stipulated to the terms of the original decree, entered January 

10, 2010, he understood that the children were receiving Social 

Security benefits by virtue of his status as a retired taxpayer 

and that these benefits were in addition to his obligations for 

child support and alimony.

Approximately 6 months after entry of the decree of dissolution, Kari filed a motion for an order nunc pro tunc, in 

which motion he asserted that the dissolution court was not 

aware of the fact the children were receiving Social Security 

payments and that had the dissolution court been aware of 

such fact, Kari’s child support amount would have been “far 

less.” Kari later chose to withdraw the motion, and the dissolution court did not address it. Rather than applying early 

on for a modification of the child support order to reflect 
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receipt of Social Security benefits as the partial source of his 

obligation, Kari decided to pursue the personal jurisdiction 

issue—which we rejected in Johnson v. Johnson, 282 Neb. 

42, 803 N.W.2d 420 (2011)—because he wanted a “do-over.” 

Thus, Kari knowingly waived an early opportunity to address 

the Social Security issue and chose instead “to gamble on the 

ultimate outcome” of his first appeal. Hanthorn v. Hanthorn, 

236 Neb. 225, 231, 460 N.W.2d 650, 654 (1990).

In light of our jurisprudence and the equities of the case, we 

conclude that the Court of Appeals did not err when it affirmed 

the district court’s determination that the Social Security payments made to the children should be treated as a gratuity. 

Accordingly, Kari should receive no child support credit for the 

Social Security payments upon remand.

3. Child Support Credit and Judgment

Kari claims the Court of Appeals erred when it reversed the 

district court’s decision which found that Kari had overpaid 

child support during the pendency of the modification proceedings, granted Kari a credit for overpayment against future 

child support, and entered a judgment against Elizabeth for the 

anticipated unused overpayment. Because of our remand for 

a determination of Elizabeth’s earning capacity, we address 

Kari’s assignment of error for guidance on remand.

(a) Retroactive Modification 

of Child Support

[7] We begin by addressing whether a retroactive modification of Kari’s child support is permissible under the facts 

of this case. Both the district court and the Court of Appeals 

determined that if Kari was found to have overpaid during the 

pendency of the modification proceedings and it was determined that he was entitled to a credit, the credit could be 

applied retroactively to the month after Kari filed for modification. Whether a child support order should be retroactive 

is entrusted to the discretion of the trial court, and we will 

affirm its decision absent an abuse of discretion. Freeman v. 

Groskopf, 286 Neb. 713, 838 N.W.2d 300 (2013). Applying 

the law to the facts of this case, we agree that retroactive 
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modification is appropriate if the further evidence shows an 

overpayment and the principles applicable to awarding a credit 

are met.

[8-10] In determining whether to order a retroactive modification of child support, a court must consider the parties’ 

status, character, situation, and attendant circumstances. See, 

Wilkins v. Wilkins, 269 Neb. 937, 697 N.W.2d 280 (2005); 

Cooper v. Cooper, 8 Neb. App. 532, 598 N.W.2d 474 (1999). 

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 date of the application for modification. See Freeman v. Groskopf, supra. The children and the 

custodial parent should not be penalized by delay in the legal 

process, nor should the noncustodial parent gratuitously benefit 

from such delay. Pursley v. Pursley, 261 Neb. 478, 623 N.W.2d 

651 (2001); McDonald v. McDonald, 21 Neb. App. 535, 840 

N.W.2d 573 (2013).

In ruling on Kari’s motion for modification, the district 

court based its child support calculation on its finding that 

Elizabeth had a wage-earning capacity of $52,000 per year 

and reasoned that Kari had overpaid his child support obligation when he paid $3,000 per month during the pendency of 

the modification proceedings. Kari had filed his application 

for modification in September 2011, and the district court retroactively reduced Kari’s child support obligation by varying 

amounts from October 2011 to the time of the modification 

ruling and forward to July 2017. The district court ordered 

that Kari be compensated for his overpayment by receiving credit against his future child support obligations and 

by receiving a lump-sum judgment against Elizabeth for the 

unused overpayment. Although the Court of Appeals determined that the district court’s conclusion approving retroactive modification was not an abuse of discretion, the Court of 

Appeals ultimately concluded that because Kari had agreed 

to pay $3,000 per month in the decree, he was not eligible to 

receive a credit.

Regarding the retroactive issue, on our de novo review of 

the record, we find no equities that would support a decision 

not to apply a modified child support obligation of Kari’s 
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retroactively to October 2011, the month following the filing 

of Kari’s motion to modify. Although Elizabeth’s wage-earning 

capacity is yet to be determined, it is undisputed that she will 

continue to receive income of approximately $27,000 per year 

from the trust; that she now shares joint physical custody with 

Kari, resulting in some reduction of expenses; and that the children have retained the Social Security benefits, which at trial 

were approximately $63,000.

We also observe that the legal process for resolving Kari’s 

modification effort has contributed to delay, and in equity, he 

should not be penalized therefor. We have stated that in the 

context of retroactive modification, parties ought not be penalized by delay in the legal process, nor should a party gratuitously benefit from such delay. See Pursley v. Pursley, supra. 

The judge who presided over the dissolution was not the judge 

who presided over the modification, and it has been suggested 

that some delay in the disposition of this matter was due, in 

part, to the retirement of the first judge and the ensuing reassignment of the case.

Accordingly, we conclude that retroactive modification of 

Kari’s child support obligation and the timing of retroactive 

modification from the first day of the month following the 

filing of the application for modification are permissible in 

this case.

(b) Credit for Modified Child Support

As noted above, the district court partly based its child support calculation on its erroneous finding that Elizabeth had an 

annual wage-earning capacity of $52,000. The district court 

applied the child support guidelines and found that Kari was 

entitled to a reduced child support obligation and that he had 

overpaid his child support obligation by paying $3,000 per 

month while the modification proceedings were pending. The 

court ordered that Kari be compensated for his overpayment, 

in part by a credit against his future child support obligations 

and in part by a lump-sum judgment against Elizabeth. On 

appeal, the Court of Appeals essentially determined that Kari 

could not have overpaid child support, because he had stipulated to the $3,000-per-month child support payment in the 
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decree, and that therefore, Kari was not eligible for a credit. 

We disagree with the reasoning of the Court of Appeals. Upon 

remand, after receipt of evidence of Elizabeth’s wage-earning 

capacity and application of the child support guidelines, if it 

appears that Kari has overpaid child support during the pendency of the modification proceedings, on the facts of this 

record, Kari is not ineligible for a credit by virtue of having 

paid the $3,000 per month. Whether Kari is awarded a credit 

under the exception in Griess v. Griess, 9 Neb. App. 105, 608 

N.W.2d 217 (2000), explained below, is to be determined by 

the district court upon remand.

[11] The Court of Appeals has enunciated the general rule 

for support overpayment claims: No credit is given for voluntary overpayments of child support, even if they are made 

under a mistaken belief that they are legally required. See id. 

However, the general rule continues that “[e]xceptions are 

made to the ‘no credit for voluntary overpayment rule’ when 

the equities of the circumstances demand it and when allowing a credit will not work a hardship on the minor children.” 

Id. at 115, 608 N.W.2d at 224. Nebraska appellate courts have 

generally considered the application of overpayment credits as 

a question of law. See, Jensen v. Jensen, 275 Neb. 921, 750 

N.W.2d 335 (2008); Jameson v. Jameson, 13 Neb. App. 703, 

700 N.W.2d 638 (2005).

In determining that Kari was not entitled to the relief provided by the district court, the Court of Appeals cited to Griess 

v. Griess, supra. The Court of Appeals acknowledged that it 

had decided that the relief of a credit against future support 

payments was appropriate in Griess, because the trial court 

had entered a grossly erroneous modification order that was 

prepared by the attorney for the party receiving the child support and the attorney for the paying party had overlooked, 

ignored, and implicitly approved the erroneous calculation. The 

Court of Appeals distinguished the present case from Griess

primarily on the basis that Kari’s claimed overpayment was 

not the result of a mistake but was an amount to which he had 

agreed in the stipulated decree. Because Kari had agreed to the 

$3,000, the Court of Appeals reasoned that Kari was precluded 
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from receiving a credit and that the district court had erred 

when it had found Kari eligible for a credit.

On the record before us, we disagree with the Court of 

Appeals’ application of Griess and determine that upon remand, 

Kari is not ineligible for a credit for overpayment of child support that may be found on remand. The determination of Kari’s 

entitlement to a credit, if any, will necessarily be made by the 

district court upon remand based on a more developed record 

regarding the parties’ relative incomes.

Our jurisprudence permits a credit for overpayment under 

the circumstances of this case. See, Jensen v. Jensen, supra

(stating that credit against child support is permissible where 

equity requires it, citing Griess); Jameson v. Jameson, supra

(quoting rule in Griess but finding it inapplicable); Griess v. 

Griess, supra. Other jurisdictions are in accord with Nebraska 

jurisprudence and have allowed a credit for overpayments made 

under earlier, higher child support orders, after a later retroactive modification reduced the child support order. See, e.g., 

In re Marriage of Frazier, 205 Ill. App. 3d 621, 563 N.E.2d 

1236, 151 Ill. Dec. 130 (1990) (after reducing obligor father’s 

child support obligations retroactively to date of his petition 

for modification, court allowed father credit against ongoing 

child support obligations for having paid higher child support amounts due prior to modification); Annot., 7 A.L.R.6th 

411 (2005).

We believe the circumstances in this case permit the award 

of a credit upon remand for overpayment of child support 

if, upon application of the child support guidelines, and in 

the absence of hardship, the district court finds an overpayment has been made during the pendency of the modification 

proceedings. We find it relevant the record shows that Kari 

repeatedly attempted to lower his obligation during the pendency of the modification process, but that his efforts were 

unsuccessful, due in part to Elizabeth’s resistance and delay 

in processing the case. Kari filed his application for modification in September 2011, but the last order disposing of the 

application was not filed until August 2013. Trial was initially 

set for April 10, 2012. Prior to trial, the parties reported that 
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they had “settled” the matter. However, after the trial date 

had passed, according to the pleadings, Elizabeth repudiated 

the settlement. On September 6, Kari sought temporary abatement of child support. On September 11, the pretrial order set 

the trial for January 24, 2013. On October 19, 2012, prior to 

the new trial date, Kari filed a motion to temporarily reduce 

his child support and a motion for credit. Elizabeth sought 

and obtained a continuance of Kari’s temporary motions. The 

district court ordered that Kari’s temporary motions were to 

be addressed at the modification trial, and the trial was set 

for January 2013. So, Kari continued to abide by the original 

order of $3,000 per month.

Our appellate jurisprudence has addressed the efforts an 

obligor parent has made during the pendency of a motion to 

modify a child support obligation. In Lucero v. Lucero, 16 

Neb. App. 706, 750 N.W.2d 377 (2008), the Court of Appeals 

indicated that the obligor parent’s failure to seek relief during the pendency of the case weighed against granting credit. 

The Court of Appeals stated: “[The ex-husband] could have 

sought and likely obtained a temporary order upon motion 

and affidavit, suspending his payments pending the final 

hearing on his request to terminate child support payments 

rather than paying them and hoping to get them back from 

his financially distressed ex-wife.” Id. at 720, 750 N.W.2d 

at 388. Unlike the obligor in Lucero, Kari made repeated 

attempts to lower his child support obligation during the 

pendency of the modification. His efforts to obtain relief 

sooner should be recognized.

We have observed, in the context of retroactive modification, that parties ought not be penalized by delay in the legal 

process. See Pursley v. Pursley, 261 Neb. 478, 623 N.W.2d 

651 (2001). We logically apply the principle to our consideration of granting a credit. Although Kari was not subject to a 

grossly erroneous child support order like the obligor in Griess 

v. Griess, 9 Neb. App. 105, 608 N.W.2d 217 (2000), we believe 

the exception in Griess is applicable to the facts of this case 

and makes Kari eligible for a credit.
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(c) Judgment Against Elizabeth for 

Anticipated Unused Child Support 

Overpayment Credit

The district court found that Kari had overpaid child support during the pendency of the modification proceedings, 

and ordered that the overpayment serve as a credit for Kari’s 

obligations during the pendency of the modification proceedings and during the remainder of the children’s minority. The 

district court calculated that the overpayment would not be 

exhausted and entered judgment against Elizabeth for the anticipated unused overpayment. The Court of Appeals reversed 

the judgment in part, because “there was no showing [that 

Elizabeth] has the means to pay” the approximately $23,114.21 

portion of the judgment attributable to the anticipated unused 

overpayment. Kari claims the Court of Appeals erred when it 

reversed the judgment against Elizabeth for the future unused 

overpayment of child support. Although our reasoning differs somewhat from that of the Court of Appeals, we find 

no error and affirm the reversal of the judgment attributable 

to the anticipated unused child support credit. Upon remand, 

the district court is instructed that entry of a judgment against 

Elizabeth for future anticipated unused overpayment is not permitted under Nebraska jurisprudence.

The judgment under review suffers from the same weaknesses as do lump-sum child support judgments in satisfaction of future payments, which are disfavored in Nebraska. In 

Gibson v. Gibson, 147 Neb. 991, 26 N.W.2d 6 (1947), the trial 

court awarded, in advance, all the child support to be paid for 

the following 13 years. On appeal, this court observed that 

child support is at all times subject to change and that the 

Nebraska Legislature had provided for such changes by allowing for modification of child support. In Gibson, we reasoned 

that lump-sum awards of child support are not supported by the 

law, because the modification statute “would be entirely ineffective if such a final judgment could be entered as was done 

in this case.” 147 Neb. at 1000, 26 N.W.2d at 10. In Gibson, 

we stated:
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It is improper under the law to make a final, definite, 

and positive entry of such a judgment for the support of 

a minor child, for the amount to be paid must vary with 

the several needs of the child for food, clothing, and 

expenses involved in his education, with his necessary 

medical and surgical requirements, and the court may 

also consider such changes in the financial condition 

of the father [obligor] as are shown by the testimony. 

Therefore, the law has provided that the monthly payments can be changed from time to time as the evidence warrants.

147 Neb. at 1000, 26 N.W.2d at 10. See, similarly, Gress v. 

Gress, 257 Neb. 112, 117, 596 N.W.2d 8, 13 (1999) (discussing credits, wherein we stated: “Future obligations are not yet 

accrued, and because they are subject to modification, they are 

not ascertainable”). For completeness, we note that although 

lump-sum child support awards are not favored under the 

law in Nebraska, an obligor may receive credit against future 

obligations for payments already made, including a lump-sum 

payment already made where such payment does not preclude 

future child support awards or adjustments. Jensen v. Jensen, 

275 Neb. 921, 750 N.W.2d 335 (2008).

In the present case, the district court’s judgment against 

Elizabeth was based on its assumption as calculated in 2013 

that there would be no changes to the child support obligations of the parties throughout the remainder of the children’s 

minority ending in 2017. The assumption that there will be 

no further modifications is not correct and contrary to law. 

Our reasoning in Gibson still applies. Therefore, we agree 

with the Court of Appeals that the lump-sum judgment against 

Elizabeth for the anticipated unused child support credit should 

be reversed.

In sum, on remand, the amount of the parties’ child support 

obligations shall be calculated based, in part, on a determination of Elizabeth’s wage-earning capacity that is supported 

by competent evidence in the record, the Social Security benefits received by the children are to be considered a gratuity, 

and Kari is not to receive a credit therefor. Given the record 

and equities, we conclude that modification of Kari’s child 
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support obligation retroactive to October 2011 is permissible. 

In the event that the district court determines that Kari has 

overpaid child support during the pendency of the modification proceedings, Kari is eligible to receive a credit. Such 

credit may be applied against future child support obligations 

on a month-to-month basis. However, because our jurisprudence disfavors lump-sum final child support judgments, we 

reverse the district court’s judgment against Elizabeth for 

$25,472.11, which included $23,114.21 of Kari’s anticipated 

unused overpayment credit, and we remand the cause with 

directions in accordance with this opinion.

(d) Judgment Regarding American 

Express Reimbursement

The $25,472.11 judgment entered by the district court was 

composed of $23,114.21 attributable to the impermissible 

award against Elizabeth for Kari’s anticipated future unused 

child support overpayment credit and $2,357.90 attributable 

to the withdrawal that Elizabeth made from Kari’s account, 

which she used to pay an American Express bill. The Court of 

Appeals disapproved of the $23,114.21 portion and approved 

of the $2,357.90 portion, as do we.

We have reversed the district court’s judgment of $25,472.11 

against Elizabeth. However, that judgment included $2,357.90 

that Elizabeth withdrew from an account of Kari’s to pay an 

American Express bill. The parties do not dispute the propriety 

of that portion of the judgment, and it is supported by evidence 

in the record. Accordingly, on remand, we order the district 

court to enter a judgment against Elizabeth in the amount 

of $2,357.90.

VI. CONCLUSION

For the foregoing reasons, on further review, we conclude 

as follows: (1) The Court of Appeals correctly determined 

that the district court erred when it imputed to Elizabeth a 

wage-earning capacity of $52,000 per year and reversed the 

order and remanded the cause for a hearing on Elizabeth’s 

wage-earning capacity, and we affirm this decision; (2) the 

Court of Appeals did not err when it affirmed the district 
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court’s conclusion that the Social Security benefits paid to 

the children were a gratuity and that Kari should not be given 

a credit upon remand, and we affirm this decision; and (3) 

although the Court of Appeals correctly affirmed the district 

court’s decisions that a downward modification in Kari’s child 

support could be retroactive to the month after the filing of 

the application to modify, that the judgment against Elizabeth 

for $25,472.11 should be reversed, that a judgment against 

Elizabeth for $2,357.90 should be entered, and we affirm 

these decisions, it erred when it reasoned that upon remand, 

Kari could not receive credit for overpayments, if any, made 

during the pendency of the modification proceedings for the 

reason that Kari had continued to pay the $3,000-per-month 

child support ordered in the decree. To the contrary, the fact 

that Kari continued to pay what had been ordered does not 

preclude consideration of a potential credit after receipt of 

additional evidence upon remand pursuant to the exception in 

Griess v. Griess, 9 Neb. App. 105, 608 N.W.2d 217 (2000). 

Accordingly, we affirm in part, and in part reverse and remand 

with directions.

 Affirmed in part, and in part reversed

and remanded with directions.

State of Nebraska, appellee, v. Craig Anthony Johnson,

also known as Craig A. Johnson, appellant.

___ N.W.2d ___

Filed May 15, 2015. No. S-14-101.

1. Appeal and Error. For an appellate court to consider an alleged error, a party 

must specifically assign and argue it.

2. Juries: Discrimination: Equal Protection: Prosecuting Attorneys. A prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any 

reason at all, if that reason is related to his view concerning the outcome of the 

case. But under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 

69 (1986), a peremptory challenge to remove a prospective juror for a racially 

discriminatory reason violates the Equal Protection Clause.

3. Juries: Discrimination: Prosecuting Attorneys: Proof. Determining whether a 

prosecutor impermissibly sought to remove a prospective juror based on race is