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291 Nebraska Reports

STEKR v. BEECHAM

Cite as 291 Neb. 883

Peter M. Stekr, appellant, v. 

Kelly Beecham, formerly

known as Kelly Shannon

Stekr, appellee.

___ N.W.2d ___

Filed September 25, 2015. No. S-15-003.

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

an appellate court reviews the modification of child support payments de 

novo on the record, it affirms the trial court’s decision absent an abuse 

of discretion.

2. Child Support: Rules of the Supreme Court. The obligor’s nonincome-producing assets are relevant to whether application of the 

Nebraska Child Support Guidelines would be unjust or inappropriate.

3. ____: ____. In determining the amount of child support, courts should 

not deviate from the Nebraska Child Support Guidelines based on the 

obligor’s equity in his or her residence unless the obligor made an 

extravagant investment in his or her residence.

Appeal from the District Court for Douglas County: Marlon

A. Polk, Judge. Affirmed.

John A. Kinney and Jill M. Mason, of Kinney Law, P.C., 

L.L.O., for appellant.

Brent M. Kuhn, of Harris Kuhn Law Firm, L.L.P., for 

appellee.

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

Miller-Lerman, JJ.
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STEKR v. BEECHAM

Cite as 291 Neb. 883

Connolly, J.

SUMMARY

Peter M. Stekr (Peter) filed a complaint to modify his child 

support obligation after his income substantially decreased. 

The trial court dismissed the complaint. It concluded that 

under the Nebraska Child Support Guidelines, Peter’s payments would be substantially reduced. But it decided to deviate 

from the guidelines in part because Peter owned non-incomeproducing real estate. On appeal, Peter argues that his nonincome-producing assets did not warrant a deviation from 

the guidelines. We conclude that the trial court did not abuse 

its discretion.

BACKGROUND

Peter and Kelly Beecham, formerly known as Kelly 

Shannon Stekr (Kelly), divorced in 2001. The court granted 

Kelly custody of the parties’ minor daughter and ordered 

Peter to pay child support of $985.84 per month. In 2007, 

the court raised Peter’s child support obligation to $1,801.51 

per month.

In January 2010, Peter filed a complaint to modify the child 

support order because his income had decreased. The court 

referred the case to a referee, who held a hearing in August.

At the hearing, Peter testified that he had traded and sold 

bonds and mortgage-backed securities since 1993. He worked 

for a securities company for about 5 years, during which time 

he had the ability to earn substantial commissions. Peter’s 

adjusted gross income was $129,057 in 2007, $331,354 in 

2008, and $345,689 in 2009.

The securities company laid Peter off in February 2010. He 

found another job trading securities with an annual salary of 

$60,000 and a bonus of up to 5 percent of his salary.

Peter testified that he is the sole shareholder of Golden 

Asset Management, which has one asset: a “spec home” in 

Denver, Colorado. Peter built the house in 2007 “to sell it and 

make money,” but this proved difficult. He listed the house 
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STEKR v. BEECHAM

Cite as 291 Neb. 883

for $950,000, then $880,000, then $825,000, and finally, as 

of the hearing, $799,000. Peter testified that the mortgage on 

the Denver house was $690,000 and that he had personally 

been making the monthly payments of $2,400 to $2,600 since 

2007. No one has ever rented or lived in the house.

Peter personally owns two other houses. One is in Golden, 

Colorado, and is Peter’s residence. The Golden house is not 

subject to any debt and was valued at $500,000 for tax purposes. But Peter thought that it was worth only $450,000.

The other house is in Bennington, Nebraska. The Bennington 

house is not subject to any debt and was valued at $525,000 

for tax purposes. But Peter thought that it was worth only 

$400,000.

Kelly lives in Omaha, Nebraska, with her husband of 8 

years. Kelly is not employed outside the home, but she testified 

that she has an earning capacity of $4,750 per month.

After hearing arguments from both parties, the referee 

stated that “[o]ne of the things that caught my attention is that 

[Peter] appears to be paying a mortgage of 24 to 26 hundred 

dollars a month on his house.” The referee reasoned that the 

money was “coming from somewhere” and said that “[i]f he’s 

got access to that money, I want to know why that money isn’t 

going to the kid . . . .” The referee sustained Peter’s motion 

to reopen the record, and Peter’s attorney recalled him as 

a witness.

Peter testified that he had made the mortgage payments 

on the Denver house “through my savings, which are [now] 

non-existent.” He explained that he saved money during his 

profitable years and had accumulated an undefined amount of 

“savings” and “about $100,000.00 in cash at home.” Asked 

if he was now paying the mortgage from his $5,000 monthly 

salary, Peter said that “[i]t’s kind of like a shuffle game. One 

thing to the other. You pay one bill and then the other, you 

know, savings . . . .”

The referee recommended that the court dismiss Peter’s 

complaint. He explained that Peter might be entitled to a 
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STEKR v. BEECHAM

Cite as 291 Neb. 883

modification under the guidelines, but that the case was “outside the normal financial framework” because of Peter’s real 

estate holdings.

In October 2010, the court overruled Peter’s exception 

to the referee’s report. The court stated that the evidence of 

Peter’s “significant real estate holdings and his willingness to 

spend his savings and borrow monies to protect his financial 

situation” supported the referee’s conclusion.

A series of three appeals by Peter and three remands by 

the Nebraska Court of Appeals followed the October 2010 

order. The Court of Appeals remanded the cause first because 

the district court failed to attach a child support worksheet to 

its order and then because the district court failed to comply 

with the Court of Appeals’ mandates. As is relevant here, in 

Peter’s first appeal, the Court of Appeals concluded that “the 

district court essentially found that Peter’s decrease in income 

was a material change in circumstances warranting a reduction in child support under the guidelines, but further found 

that a deviation from the guidelines was justified.”1 In Peter’s 

third appeal, case No. A-13-398, an unpublished memorandum opinion filed May 13, 2014, the Court of Appeals said 

that its construction of the district court’s October 2010 order 

(i.e., a modification was warranted under the guidelines but 

the court decided to deviate from them) had become the law 

of the case.

In December 2014, the district court entered a responsive 

order to the Court of Appeals’ third mandate. The district 

court stated that the worksheet 1 submitted by Peter, and 

attached to the order, showed how much support Peter owed 

under the guidelines. According to the worksheet, both Peter 

and Kelly had total monthly incomes of $5,000 and Peter’s 

share of the support obligation was $647.51 per month. So, 

the court explained that under “a strict application of [the] 

1 Stekr v. Beecham, No. A-10-1047, 2011 WL 4635141 at *3 (Neb. App. 

Sept. 27, 2011) (selected for posting to court Web site).
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Nebraska Child Support Guidelines,” Peter would owe $647.51 

per month.

But the court decided to deviate from the guidelines 

because Peter had “a large sum of money available from all 

sources including but not limited to substantial real estate 

holdings, . . . and for the reason that [Peter] has had savings 

. . . and an undisclosed amount of other funds to pay on the 

mortgage for his real estate.” The court ordered Peter to pay 

$1,801 per month “based upon the relative financial circumstances of the parties and history of established support for 

the minor child.”

ASSIGNMENTS OF ERROR

Peter assigns and argues that the court erred by deviating 

from the Nebraska Child Support Guidelines.

Peter assigns several other issues but does not specifically argue them, other than to say that they “flow from” the 

court’s decision to deviate from the guidelines.2 To be considered by an appellate court, an alleged error must be both 

specifically assigned and specifically argued in the party’s 

brief.3 We do not consider the errors that Peter assigned but 

did not argue.

STANDARD OF REVIEW

[1] Although we review the modification of child support 

payments de novo on the record, we affirm the trial court’s 

decision absent an abuse of discretion.4

ANALYSIS

Peter and Kelly disagree about the relevance of Peter’s 

assets to his child support obligation. Peter argues that his 

ownership of non-income-producing real estate was not a 

basis to deviate from the Nebraska Child Support Guidelines. 

2 Brief for appellant at 11.

3 Griffith v. Drew’s LLC, 290 Neb. 508, 860 N.W.2d 749 (2015).

4 See Pearson v. Pearson, 285 Neb. 686, 828 N.W.2d 760 (2013).
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Kelly notes that Peter chose to invest his money in nonincome-producing real estate.

We have stated that trial courts may consider the circumstances of the parties in determining the amount of child 

support.5 The parties’ circumstances includes their financial condition.6

 Other courts have recognized that the parties’ assets—including those that are not currently producing 

income—are relevant to the support calculation.7

Courts generally factor non-income-producing assets into 

the child support calculation in one of two ways.8 First, courts 

sometimes impute to the parent’s income a hypothetical reasonable rate of return from a nonproducing or underproducing asset.9

 The rationale is that funds devoted to unproductive 

assets have untapped earning potential.10 Courts do not have 

to defer to a parent’s investment decisions, and the parent’s 

choice to devote resources to growth instead of income must 

sometimes yield to the child’s best interests.11

The second way courts consider non-income-producing 

assets is as a reason to deviate from the presumptive child 

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

6 Id.

7 See, e.g., Adam v. Adam, 624 A.2d 1093 (R.I. 1993). But see Sutherland v. 

Sutherland, 14 Va. App. 42, 414 S.E.2d 617 (1992).

8 See In re Marriage of Berger, 170 Cal. App. 4th 1070, 88 Cal. Rptr. 3d 

766 (2009). 

9 See, e.g., In re Marriage of Williams, 150 Cal. App. 4th 1221, 58 Cal. 

Rptr. 3d 877 (2007). See, also, American Law Institute, Principles of the 

Law of Family Dissolution: Analysis and Recommendations § 3.14(4)(b) 

(2002). But see Clark v. Clark, 172 Vt. 351, 779 A.2d 42 (2001).

10 See, Weinstein v. Weinstein, 280 Conn. 764, 911 A.2d 1077 (2007); In 

re Marriage of Williams, supra note 9; Kay v. Kay, 37 N.Y.2d 632, 339 

N.E.2d 143, 376 N.Y.S.2d 443 (1975).

11 See, In re Marriage of Schlafly, 149 Cal. App. 4th 747, 57 Cal. Rptr. 

3d 274 (2007); Weinstein v. Weinstein, supra note 10; In re Marriage of 

Destein, 91 Cal. App. 4th 1385, 111 Cal. Rptr. 2d 487 (2001); American 

Law Institute, supra note 9, § 3.14, comment a. But see Barton v. 

Hirshberg, 137 Md. App. 1, 767 A.2d 874 (Md. Spec. App. 2001).
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support formula.12 For deviations, the theory is that parents should sometimes liquidate assets to meet their paramount obligation to support their children.13 Relevant factors 

include the obligor’s total wealth, the custodial parent’s total 

wealth, the children’s needs, and whether liquidating the asset 

would interfere with the obligor’s livelihood or ability to 

earn income.14

Here, the district court deviated from the guidelines. It found 

that Peter’s obligation under the guidelines would be $647.51 

per month, but that he should instead pay $1,801 per month 

because of the parties’ financial circumstances.

We must answer two questions: (1) Are an obligor’s nonincome-producing assets relevant to whether the circumstances justify a deviation from the guidelines? (2) If so, did 

the district court abuse its discretion by deviating from the 

guidelines?

[2] As to the first question, we conclude that a court 

may consider the obligor’s non-income-producing assets in 

determining whether to deviate from the guidelines. Courts 

have the discretion to depart from the guidelines if their 

application would be unjust or inappropriate.15 The obligor’s 

resources are relevant to the justness and appropriateness of 

the guidelines.

So, we turn to whether Peter’s resources made the application of the guidelines unjust or inappropriate. According to 

the court, Peter had “substantial real estate holdings.” The 

12 See, e.g., Cody v. Evans-Cody, 291 A.D.2d 27, 735 N.Y.S.2d 181 (2001). 

But see Barton v. Hirshberg, supra note 11.

13 See Cody v. Evans-Cody, supra note 12. See, also, Clark v. Clark, supra

note 9; Green v. Green, 447 N.E.2d 605 (Ind. App. 1983).

14 See, Jurado v. Jurado, 119 N.M. 522, 892 P.2d 969 (N.M. App. 1995); 

Linard v. Hershey, 489 N.W.2d 599 (S.D. 1992); Quaid v. Quaid, 403 

N.W.2d 904 (Minn. App. 1987). See, also, Anthony v. Anthony, 21 Mass. 

App. 299, 486 N.E.2d 773 (1985); American Law Institute, supra note 9, 

§ 3.14, comment d.

15 Neb. Ct. R. § 4-203(E) (rev. 2011).
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court also found that Peter “has had savings . . . and an undisclosed amount of other funds to pay on the mortgage for his 

real estate.”

We note that Golden Asset Management owns the house 

in Denver, and not Peter. But he has not argued that the 

corporate ownership is relevant, and we do not address 

that issue. More pertinent to our analysis is that the record 

does not show how much equity, if any, Peter has in the 

Denver house. Peter initially listed the house for $950,000 

but reduced the listing price several times to its current level 

of $799,000. The plummeting listing price was approaching 

the $690,000 mortgage, and Peter’s ability to sell the house 

at the reduced price was far from certain. On these facts, the 

court could not assume that the difference between the most 

recent listing price and the outstanding debt was the measure 

of Peter’s equity.

[3] Nor is Peter’s ownership of his personal residence in 

Golden a basis to deviate from the guidelines. Courts have 

been reluctant to impute income from an obligor’s home 

equity.16 For example, the American Law Institute suggests that 

courts should not impute income from a parent’s residence if 

the investment is “commensurate with the parent’s economic 

resources.”17 Similarly, we believe that obligors should not 

ordinarily have to mortgage their homes or live in their cars 

in order to pay child support that is above the guidelines. The 

record does not suggest that Peter made an extravagant investment in his home.

But Peter also owned a house in Bennington. Peter testified 

that the Bennington house was assessed for tax purposes at 

$525,000 and was not encumbered by a mortgage. Even if the 

house was worth only $400,000, as Peter thought, he still has 

$400,000 of equity in real estate other than his home. Peter’s 

16 See In re Marriage of Henry, 126 Cal. App. 4th 111, 23 Cal. Rptr. 3d 707 

(2005). See, also, Vt. Stat. Ann. tit. 15, § 653(5)(A) (Cum. Supp. 2014).

17 American Law Institute, supra note 9, § 3.14(4)(b) at 583 & comment d.
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equity in the Bennington house was relevant to the appropriateness of a deviation.

Furthermore, the court found that Peter had “an undisclosed 

amount of other funds to pay on the mortgage for his real 

estate,” which he should instead use to support his daughter. 

So, the court decided that Peter’s protestations of imminent 

bankruptcy were not credible. Although our review is de 

novo, we may still give weight to the fact that the trial court 

observed the witnesses and accepted one version of the facts 

instead of another.18 This rule is particularly apt for issues 

of credibility.19

We conclude that the district court did not abuse its discretion by deviating from the guidelines because of Peter’s financial resources, including his equity in non-income-producing 

real estate. The guidelines do not incorporate the obligor’s 

non-income-producing assets into the child support formula, 

and courts should not require obligors to liquidate such assets 

as a matter of course. But the best interests of the child are the 

paramount concern,20 and sometimes the preservation of assets 

must yield to the child’s needs.

CONCLUSION

We conclude that the district court did not abuse its discretion by deviating from the guidelines. The court could find 

that Peter’s financial resources, including his non-incomeproducing real estate, made the application of the guidelines 

unjust or inappropriate.

Affirmed.

Cassel, J., not participating.

18 See Binder v. Binder, 291 Neb. 255, 864 N.W.2d 689 (2015).

19 See id.

20 Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551 (2009).