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Cite as 21 Neb. App. 535

the conditional liberty of Workman’s participation in the drug 

court program, based upon the record made at the previous 

hearing. The sentence imposed is vacated, and the cause is 

remanded to the district court for resentencing following the 

entry of the new order.

Judgment reversed, sentence vacated, and

cause remanded for further proceedings.

Coleen McDonald, appellee, and State

of Nebraska, intervenor-appellee, v. 

Del McDonald, appellant.

___ N.W.2d ___

Filed December 10, 2013. No. A-12-1058.

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

involving the modification of a divorce decree, parenting time, and the amount of 

child support are initially entrusted to the discretion of the district court, whose 

determinations in these matters are reviewed de novo on the record for an abuse 

of discretion.

2. Child Support. The trial court’s discretion to award child support extends to its 

determination that the child support award should be retroactive.

3. Attorney Fees: Appeal and Error. An appellate court reviews a trial court’s 

award of attorney fees for an abuse of discretion.

4. Courts: Words and Phrases. An abuse of discretion occurs when a trial court 

acts or refrains from acting, and the selected option results in a decision which is 

untenable and unfairly deprives the litigant of a substantial right or just result.

5. Modification of Decree: Child Custody. Ordinarily, custody of a minor child 

will not be modified unless there has been a material change in circumstances 

showing that the custodial parent is unfit or that the best interests of the child 

require such action.

6. Modification of Decree: Words and Phrases. A material change in circumstances means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to 

decree differently.

7. Modification of Decree. Changes in circumstances which were within the contemplation of the parties at the time of the decree are not material changes in 

circumstances for purposes of modifying a divorce decree.

8. Modification of Decree: Child Custody: Proof. Prior to the modification of a 

child custody order, two steps of proof must be taken by the moving party. First, 

the moving party must show a material change in circumstances that affects the 

best interests of the child. Second, the moving party must prove that changing the 

child’s custody is in the child’s best interests.
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536 21 NEBRASKA APPELLATE REPORTS

9. Appeal and Error. An appellate court will not consider an issue on appeal that 

was not presented to or passed upon by the trial court.

10. Modification of Decree: Child Support: Proof. A parent seeking to modify a 

child support award must show a material change in circumstances, including 

changes in the financial position of the parent obligated to pay support.

11. Child Support: Rules of the Supreme Court. Generally, child support payments 

should be set according to the guidelines established pursuant to Neb. Rev. Stat. 

§ 42-364.16 (Reissue 2008).

12. Child Support: Rules of the Supreme Court: Presumptions. Although the 

child support guidelines are not to be applied with blind rigidity, child support 

shall be established in accordance with the guidelines, unless the court finds that 

one or both parties have produced sufficient evidence to rebut the presumption 

that the application of the guidelines will result in a fair and equitable child support order.

13. Modification of Decree: Child Custody. If trial evidence establishes a joint 

physical custody arrangement, courts will so construe it, regardless of how prior 

decrees or court orders have characterized the arrangement.

14. Child Custody: Child Support: Rules of the Supreme Court. Where parties 

exercise joint physical custody, the trial court must use the joint custody worksheet of the child support guidelines to calculate support.

15. Child Custody: Words and Phrases. Joint physical custody is generally 

defined as joint responsibility for minor day-to-day decisions and the exertion 

of continuous physical custody by both parents over a child for significant 

time periods.

16. Appeal and Error. Generally, a party cannot complain of error which the party 

has invited the court to commit.

17. Divorce: Minors: Stipulations. Parties in a proceeding to dissolve a marriage cannot control the disposition of matters pertaining to minor children by 

agreement.

18. Divorce: Modification of Decree: Child Support. The paramount concern and 

question in determining child support, whether in the initial marital dissolution 

action or in the proceedings for modification of decree, is the best interests of 

the child.

19. Child Support. In determining whether to order retroactive support, a court must 

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

part of that consideration, the court must consider whether the obligated party has 

the ability to pay the lump-sum amount of a retroactive award.

20. 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.

21. Child Support: Child Custody. In the determination of child support, 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.

22. Taxation: Child Support: Alimony: Child Custody. Because a tax dependency 

exemption is an economic benefit nearly identical in nature to an award of child 

support or alimony, a trial court may exercise its equitable powers to allocate 

dependency exemptions between the custodial and noncustodial parent.
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Cite as 21 Neb. App. 535

23. Taxation: Child Custody: Presumptions. Although a custodial parent is presumptively entitled to a tax dependency exemption, a trial court may use its equitable powers to allocate the exemption to a noncustodial parent if the situation of 

the parties so requires.

24. Attorney Fees. Attorney fees are recoverable in Nebraska only when provided 

for by law or allowed by custom.

25. Attorney Fees: Child Support. Attorney fees and costs are allowed in child support cases brought by a child’s mother, father, guardian or next friend, the county 

attorney, or other authorized attorney.

26. Attorney Fees. The award of attorney fees depends on multiple factors that 

include the nature of the case, the services performed and results obtained, the 

earning capacity of the parties, the length of time required for preparation and 

presentation of the case, customary charges of the bar, and general equities of 

the case.

27. Attorney Fees: Courts. Trial courts and appellate courts are equally regarded as 

experts at determining the value of legal services.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirmed.

Avis R. Andrews for appellant.

Ronald E. Frank and Mary M. Schott, of Sodoro, Daly & 

Sodoro, P.C., for appellee.

Julie Fowler, of Child Support Enforcement Office, for 

intervenor-appellee.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

Riedmann, Judge.

I. INTRODUCTION

Del McDonald appeals from the decision of the district 

court for Douglas County modifying his child support obligation, awarding attorney fees to his former wife, and denying 

his request for custody modification. We determine that the 

district court did not abuse its discretion in refusing to modify 

child custody, in modifying Del’s child support obligation, 

or in awarding attorney fees. Accordingly, we affirm the trial 

court’s decision.

II. BACKGROUND

Del and Coleen Spencer, formerly known as Coleen 

McDonald, married in March 1999 and divorced in July 2009. 
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538 21 NEBRASKA APPELLATE REPORTS

Two children were born during the marriage—a son born in 

1999 and a daughter born in 2002.

In the original divorce decree, the court awarded Coleen 

sole legal and physical custody of the parties’ two children, 

subject to Del’s parenting time. Del’s parenting time consisted of alternating weekends, Wednesday nights, rotating 

holidays, and extended time during the summer. Del’s parenting rights also included a right of first refusal when Coleen 

worked overnight.

To facilitate their shared parenting responsibilities, the parenting plan established rules for Del and Coleen to aid them 

in communicating. The rules eliminated face-to-face interaction during custody exchanges, established that the parties 

would communicate professionally through e-mail or voicemail, and ordered the parties to sit apart from each other at 

school activities.

In addition to sole custody, the decree also awarded Coleen 

$69 per month in child support. The decree ordered Coleen to 

maintain health and medical insurance for the children unless it 

was available to Del at a lower rate. Del’s child support obligations were calculated based on his status as a full-time student 

with minimal income.

About a year after the decree was entered, Del obtained 

full-time employment as a respiratory therapist at a Bellevue 

medical center and occasionally worked additional shifts at a 

hospital in Blair. Because Del’s income increased, the State 

of Nebraska intervened in February 2011 to ask the court 

to recalculate Del’s child support obligation. Del filed an 

answer and counterclaim alleging that there had been a material change in circumstances which warranted an award of 

full custody to him. He based his modification request upon 

contact that the children had with Coleen’s then boyfriend, 

who Del claimed had a history of domestic abuse and who 

transported the children while he was consuming alcohol. He 

further claimed that Coleen was frustrating his relationship 

with the children by refusing telephone contact and denying 

him the right of first refusal to care for the children when 

Coleen was at work.
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At trial, the parties addressed both child support and custody 

issues. To help determine the proper amount of child support, 

both parties submitted proposed calculations to the court. The 

State calculated Del’s income as $24 per hour full time and 

Coleen’s income as $23.67 per hour full time. Both parties 

stipulated to the exhibits containing the income calculations. 

Both parties showed they were providing the children with 

health insurance. The evidence showed that Del’s health insurance premium is slightly lower, but Coleen testified that her 

insurance does not require her to make any copayments. The 

parties submitted exhibits as evidence of their income, and 

they stipulated to all of the exhibits. The stipulated exhibits 

included the parties’ proposed child support calculations (all of 

which used the same income for the parties), tax returns, and 

pay stubs.

With respect to custody, at trial, Del requested the court 

to award him joint custody of the children on an alternating 

weekly basis, despite the request in his counterclaim that he be 

awarded “full custody.” Under his proposed custody plan, the 

children would stay in their current school and he would move 

closer to their current residence. In support of his request, Del 

stated that he is involved in the children’s lives: he attends 

school activities and exercises his parenting time. Del argued 

that a joint custody plan was warranted by material changes in 

circumstances. Specifically, he argued that circumstances have 

changed, because his work schedule has allowed him more 

time to parent, Coleen has prevented him from exercising the 

right of first refusal the way the parties envisioned at the time 

of the original decree, Coleen’s new husband has driven the 

children while having open containers of alcohol in his car, 

and Coleen has informed the children that Del does not pay 

child support.

Del and Coleen’s son testified that he did not want the custody schedule to change. Their daughter did not testify. Both 

parties admitted that they did not have a cordial relationship.

The trial court addressed the issues of custody, child support, health insurance, tax dependency exemptions, and attorney fees. The trial court determined that although no material 
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540 21 NEBRASKA APPELLATE REPORTS

change supported a change in custody, Del’s new employment 

status was a material change that supported increasing child 

support. The trial court increased Del’s child support from $69 

per month to $982 per month. It awarded the support retroactively from March 2011, resulting in $14,608 in past support. 

Although Del’s income increased in June 2010, the State did 

not move to modify child support until February 2011; accordingly, the trial court could not award retroactive support until 

March 2011.

While increasing Del’s support, the court determined that 

Coleen should continue to provide health insurance for the 

children. Although Coleen’s premium was slightly more expensive than Del’s, the court determined her plan was more economical because it did not require any copayments. Finally, the 

court determined that each parent could claim one child for tax 

exemption purposes but required Del to fulfill his child support 

obligation in order to claim the exemption.

The trial court also found that Del should have been paying an increased amount of child support since June 2010 and 

that Coleen incurred legal costs to prove this increase. The 

court noted that although the attorney fee statements did not 

distinguish how much of the fee was attributable to the claim 

for increased child support, a significant portion of the bill was 

devoted to that issue. Accordingly, the trial court required Del 

to pay Coleen $2,000 of her $5,046.50 legal bill.

Del timely appealed.

III. ASSIGNMENTS OF ERROR

Del argues on appeal, condensed, renumbered, and restated, 

that the trial court erred in (1) failing to modify Coleen’s award 

of sole legal and physical custody, (2) modifying and calculating child support, (3) ordering support to be retroactive, (4) 

making the tax dependency exemption based on being current 

on support, and (5) awarding attorney fees.

IV. STANDARD OF REVIEW

[1-3] Generally, issues involving the modification of a 

divorce decree, parenting time, and the amount of child support are initially entrusted to the discretion of the district court, 
Decisions of the Nebraska Court of Appeals

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Cite as 21 Neb. App. 535

whose determinations in these matters are reviewed de novo 

on the record for an abuse of discretion. See Boamah-Wiafe v. 

Rashleigh, 9 Neb. App. 503, 614 N.W.2d 778 (2000). See, also, 

Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (2009). 

The trial court’s discretion to award child support extends to 

its determination that the child support award should be retroactive. See Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 

(2005). An appellate court also reviews a trial court’s award of 

attorney fees for an abuse of discretion. See Boamah-Wiafe v. 

Rashleigh, supra.

[4] An abuse of discretion occurs when a trial court acts or 

refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives the litigant of a 

substantial right or just result. See Coffey v. Coffey, 11 Neb. 

App. 788, 661 N.W.2d 327 (2003).

V. ANALYSIS

1. Custody Modification

Del argues that the trial court abused its discretion in failing 

to modify the custody decree. In particular, Del argues that the 

trial court should have awarded him joint custody, increased 

parenting time, or the right of first refusal whenever Coleen is 

at work. We disagree.

[5-7] Ordinarily, custody of a minor child will not be modified unless there has been a material change in circumstances 

showing that the custodial parent is unfit or that the best 

interests of the child require such action. Adams v. Adams, 13 

Neb. App. 276, 691 N.W.2d 541 (2005). A material change 

in circumstances means the occurrence of something which, 

had it been known to the dissolution court at the time of the 

initial decree, would have persuaded the court to decree differently. Id. Changes in circumstances which were within the 

contemplation of the parties at the time of the decree are not 

material changes in circumstances for purposes of modifying 

a divorce decree. See Desjardins v. Desjardins, 239 Neb. 878, 

479 N.W.2d 451 (1992).

[8] Prior to modification, two steps of proof must be taken 

by the moving party. First, the moving party must show a 

material change in circumstances that affects the best interests 
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542 21 NEBRASKA APPELLATE REPORTS

of the child. Second, the moving party must prove that changing the child’s custody is in the child’s best interests. See 

Adams v. Adams, supra.

In his counterclaim, Del claimed that Coleen has attempted 

to damage the children’s relationship with him, frustrated his 

ability to have contact with them, and prevented him from 

exercising the right of first refusal contemplated in the initial decree, and that contact with Coleen’s new husband has 

harmed the children. Del argued that these changes constitute a 

material change in circumstances.

At trial, Del testified that Coleen’s husband had driven the 

children while having open containers of alcohol in his car 

and that Coleen had encroached on Del’s parenting time by 

scheduling the children’s activities during that time and did 

not allow him to make up all of the missed time. He also testified that his regular job allows him to have more time with 

his children.

The trial court determined that there was not a material 

change in circumstances. On a de novo review of the record, 

we agree. Although Del presented numerous allegations in 

his counterclaim, his argument is more limited on appeal. In 

his brief, Del claims that a material change in circumstances 

exists, because Coleen has “abuse[d her] power” and shut him 

out of the children’s lives, Del has a flexible schedule and 

time to parent, and Del has not been able to exercise as much 

parenting time as the original decree contemplated. Brief for 

appellant at 24.

We address the arguments Del presented on appeal in turn.

Del argues that Coleen has marginalized his ability to parent by failing to communicate with him and that this failure 

to communicate places an “inordinate amount of control” in 

her hands. Id. Although we recognize that the parties’ strained 

relationship necessarily makes parenting difficult, there is no 

evidence that their relationship has deteriorated from the time 

of the original divorce decree. The fact that Del and Coleen 

cannot get along with each other is not a new development; 

the original divorce decree recognized this when it ordered 

e-mail communication and segregated seating at the children’s 
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activities. Del did not present persuasive evidence of a material 

change in the parties’ relationship.

Similarly, Del did not present persuasive evidence that his 

new work schedule was a development not contemplated at the 

time of the divorce decree. At the time of the divorce decree, 

Del was a full-time student. The evidence shows that at the 

time of the divorce, Del was enrolled in a 2-year respiratory 

therapist program. Given the limited nature of the program, the 

parties certainly contemplated Del’s completion of the program 

at the time of the divorce. Del’s graduation from the program 

and acceptance of employment constitute a development that 

was certainly expected at the time of the divorce. See McElyea 

v. McElyea, No. A-09-716, 2010 WL 4237938 (Neb. App. Jan. 

5, 2010) (selected for posting to court Web site).

Even if the parties had not contemplated the current situation, however, the evidence does not show that Del is currently more available to parent. The record does not reveal 

Del’s schooling schedule at the time of the divorce decree. Del 

testified, however, that he should not have been required to 

reimburse Coleen for daycare during that time period, because 

he could have watched the children every day. Given Del’s 

testimony and the lack of evidence regarding his schedule at 

the time of the decree, there is no basis to compare his parenting availability. Accordingly, the record presented to this court 

does not demonstrate a material change in circumstances based 

on the changes in Del’s schedule.

Finally, Coleen’s changed work schedule does not constitute a material change in circumstances. The original divorce 

decree awards Del a right of first refusal while Coleen worked 

the night shift. The parties did not provide evidence as to why 

they limited Del’s right to time periods when Coleen worked 

at night as opposed to simply providing Del a right of first 

refusal when Coleen worked. While Coleen’s change in work 

schedule may have prevented Del from exercising the right of 

first refusal, Del did not prove that the intention of the right 

was simply to provide him with increased parenting time and 

therefore did not show that Coleen’s change has frustrated the 

intention of the provision in the decree. Accordingly, we do not 
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544 21 NEBRASKA APPELLATE REPORTS

find a material change in circumstances based upon Coleen’s 

changed schedule.

The evidence reveals that both parents are capable of providing their children with a stable home environment. They 

both love their children and support them academically, financially, and emotionally. There was no evidence that Coleen 

was unfit or that the children were not thriving in her care. 

Therefore, upon our de novo review of the record, we agree 

that there is not sufficient evidence to demonstrate that a material change in circumstances has occurred. Absent a material 

change in circumstances, Del is not entitled to a modification 

of custody.

[9] On appeal, Del argues that the trial court should have 

awarded him additional parenting time. Aside from requesting 

joint custody, however, Del did not request additional parenting 

time in his counterclaim or at trial. An appellate court will not 

consider an issue on appeal that was not presented to or passed 

upon by the trial court. Scurlocke v. Hansen, 268 Neb. 548, 684 

N.W.2d 565 (2004). Because the issue was not presented to the 

trial court, we do not consider it on appeal.

2. Child Support Modification

Del argues that the trial court erred in modifying child 

support and in its child support calculation. Del argues that 

the support was incorrectly calculated, because the trial court 

used the wrong worksheet and income level, improperly gave 

Coleen credit for providing health insurance, and should have 

awarded a deviation. We disagree.

(a) Modification

[10] A parent seeking to modify a child support award must 

show a material change in circumstances, including changes in 

the financial position of the parent obligated to pay support. 

See Sabatka v. Sabatka, 245 Neb. 109, 511 N.W.2d 107 (1994). 

Del’s financial position changed drastically from the time 

of the divorce decree. At the time of the decree, Del was an 

unemployed student with minimal income. At the time of the 

request for modification, he worked full time as a respiratory 

therapist and earned a stable salary. The trial court did not err 
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in finding a material change supported modifying Del’s child 

support award.

(b) Sole Custody Worksheet 

and Deviation

Del argues that the trial court abused its discretion in using 

the sole custody worksheet, because the parties are effectively 

exercising joint custody. Del notes that he has custody of the 

children 163 to 166 days per year, or 44 to 45 percent of the 

time. Alternatively, Del argues that the trial court abused its 

discretion in failing to deviate from the award produced using 

the joint custody worksheet because of Del’s substantial parenting time.

[11,12] Generally, child support payments should be set 

according to the guidelines established pursuant to Neb. Rev. 

Stat. § 42-364.16 (Reissue 2008). Hajenga v. Hajenga, 257 

Neb. 841, 601 N.W.2d 528 (1999). Although the guidelines 

are not to be applied with blind rigidity, child support shall 

be established in accordance with the guidelines, unless the 

court finds that one or both parties have produced sufficient 

evidence to rebut the presumption that the application of the 

guidelines will result in a fair and equitable child support 

order. § 42-364.16; Pool v. Pool, 9 Neb. App. 453, 613 N.W.2d 

819 (2000).

[13,14] Neb. Ct. R. § 4-212 (rev. 2011) establishes a presumption of joint support when the trial court orders joint 

custody and each party’s parenting time exceeds 142 days 

per year. If trial evidence establishes a joint physical custody 

arrangement, courts will so construe it, regardless of how prior 

decrees or court orders have characterized the arrangement. 

Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999). 

Where parties exercise joint physical custody, the trial court 

must use the joint custody worksheet to calculate support. See 

Pool v. Pool, supra.

[15] Joint physical custody is generally defined as “joint 

responsibility for minor day-to-day decisions and the exertion of continuous physical custody by both parents over a 

child for significant time periods.” Id. at 457, 613 N.W.2d 

at 823. In Hill v. Hill, 20 Neb. App. 528, 827 N.W.2d 304 
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546 21 NEBRASKA APPELLATE REPORTS

(2013), we examined the line of Nebraska cases defining 

joint physical custody. (These cases are: Elsome v. Elsome, 

supra; Pool v. Pool, supra; Heesacker v. Heesacker, 262 Neb. 

179, 629 N.W.2d 558 (2001); and Drew on behalf of Reed v. 

Reed, 16 Neb. App. 905, 755 N.W.2d 420 (2008).) In Hill, we 

noted that Nebraska cases distinguish between a continuous 

alternating custody schedule and a more “‘typical’” weekend, holiday, and summer visitation schedule. 20 Neb. App. 

at 535, 827 N.W.2d at 311. We explained that “the amount 

of time the children spend with each parent is less important 

than how the time is allocated when determining whether joint 

physical custody exists.” Id. Part of the reason for this distinction is that the way parenting time is allocated relates to the 

expenses associated with that responsibility. See Heesacker v. 

Heesacker, supra. In Heesacker, for example, the court determined that a father’s typical visitation schedule did not give 

rise to the same expenses as the mother’s day-to-day schedule 

even though the father parented the children 35 percent of 

the time.

Del has custody of the children 163 to 166 days per year, 

which raises the presumption that he exercises joint custody 

with Coleen. His custody schedule, however, consists of alternating weekends, one weekday night, alternating holidays, 

and an extended time period in the summer. He did not testify 

that this schedule caused him to expend more money than any 

other noncustodial parent. His parenting time constitutes a 

typical visitation schedule. See Pool v. Pool, supra. Because 

his allocation of parenting time constitutes a typical visitation 

schedule, Coleen rebutted the presumption of joint custody. 

Accordingly, there was no reason for the trial court to use the 

joint support worksheet or to deviate from the child support 

guidelines based on the visitation schedule. The trial court did 

not abuse its discretion by failing to do so.

(c) Income Calculation

Del argues that the trial court erred in using an inflated 

income figure in calculating his child support obligation. Del 

argues that the evidence shows Del’s monthly income as 

$3,692.52 and Coleen’s as $3,744, both of which are lower 
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than the income amounts used by the trial court to calculate 

support. While we agree with Del’s analysis of what the record 

reflects, we are mindful of the fact that the worksheets Del 

offered at trial contained the same gross income amounts contained in the State’s proffered worksheets and used by the court 

in its calculations. Del claims the court erred in utilizing the 

very amounts that he suggested the court use.

[16-18] Generally, a party cannot complain of error which the 

party has invited the court to commit. Kalkowski v. Kalkowski, 

258 Neb. 1035, 607 N.W.2d 517 (2000). However, parties in 

a proceeding to dissolve a marriage cannot control the disposition of matters pertaining to minor children by agreement. 

Lawson v. Pass, 10 Neb. App. 510, 633 N.W.2d 129 (2001). 

The paramount concern and question in determining child support, whether in the initial marital dissolution action or in the 

proceedings for modification of decree, is the best interests of 

the child. Gangwish v. Gangwish, 267 Neb. 901, 678 N.W.2d 

503 (2004).

Since Del utilized these same amounts on the worksheets 

he offered as evidence, and the use of these amounts does 

not detrimentally affect the children, we cannot say the court 

abused its discretion in relying upon these amounts to calculate 

child support.

(d) Health Insurance

Del argues that the trial court erred in failing to give him 

credit for providing the children health insurance and in giving Coleen credit for providing health insurance. The divorce 

decree ordered Coleen to provide the children health insurance unless Del could do so more economically. Coleen began 

providing the children with health insurance. Later, Del had 

the option to provide the children with health insurance that 

had a slightly lower premium rate and did so. Coleen maintained health insurance for the children, however, because her 

plan did not require the parties to make any copayments for 

health care.

The trial court determined that Coleen’s insurance was 

more economical and ordered her to continue providing it to 

the children. Consequently, Del is not required to provide the 
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548 21 NEBRASKA APPELLATE REPORTS

children with health insurance. Because Coleen was ordered 

to provide the children health insurance and Del was not, the 

trial court did not err in giving Coleen credit for providing the 

insurance and in failing to give credit to Del.

3. Awarding Retroactive

Support

Del argues that the trial court erred in requiring him to pay 

retroactive child support, because he has been involved in raising the children, is beginning a new career, and cannot afford 

to pay such a large arrearage. We disagree.

[19-21] In determining whether to order retroactive support, 

a court must consider the parties’ status, character, situation, 

and attendant circumstances. See Cooper v. Cooper, 8 Neb. 

App. 532, 598 N.W.2d 474 (1999). As part of that consideration, the court must consider whether the obligated party has 

the ability to pay the lump-sum amount of a retroactive award. 

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

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. Emery v. Moffett, 269 Neb. 867, 697 N.W.2d 249 (2005). 

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).

In this case, Del became employed in June 2010 and began 

earning a substantial salary. During this time, he was paying 

only $69 a month in child support. Despite his increased salary, 

he continued to pay only $69 in support without interference 

until February 2011, when the State petitioned the court to 

increase his child support obligation. The trial court awarded 

child support retroactively from March 2011, the first month 

after the filing of the modification application. This retroactive award keeps with the principle that a noncustodial parent 

should not gratuitously benefit from delays in the legal system when he or she should, and is able to, pay an increased 

amount of child support. Del did not explain why it would 

be inequitable for him to pay retroactive support, nor did 
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he explain why paying the lump sum would be a hardship. 

Accordingly, the trial court did not err in ordering the child 

support be awarded retroactively.

4. Tax Exemption

Del argues that the trial court erred in making his tax dependency exemption dependent on his being current in paying 

child support. We disagree.

[22,23] The federal government allows taxpayers to 

exclude from their income an exemption amount for each 

individual who is a dependent of the taxpayer in the taxable year. I.R.C. § 151(c) (2006). Because a tax dependency 

exemption is an economic benefit nearly identical in nature 

to an award of child support or alimony, a trial court may 

exercise its equitable powers to allocate dependency exemptions between the custodial and noncustodial parent. See 

Prochaska v. Proschaka, 6 Neb. App. 302, 573 N.W.2d 777 

(1998). Although a custodial parent is presumptively entitled 

to a tax dependency exemption, a trial court may use its 

equitable powers to allocate the exemption to a noncustodial 

parent if the situation of the parties so requires. See, I.R.C. 

§ 152(c)(4)(B)(i) (2006); State on behalf of Pathammavong 

v. Pathammavong, 268 Neb. 1, 679 N.W.2d 749 (2004). If 

the situation of the parties does not require allocating a tax 

dependency exemption to the noncustodial parent, however, 

a trial court is not required to allocate it. For example, in 

State ex rel. Wells v. Wells, No. A-10-1161, 2011 WL 3689142 

(Neb. App. Aug. 23, 2011) (selected for posting to court Web 

site), we found that the trial court abused its discretion in 

awarding a father a tax dependency exemption when he was 

paying a relatively low amount of child support.

The federal government grants a dependency exemption to 

a parent who provides support to a dependent minor. If Del 

is not current on his child support, then he is not supporting 

the minor in the way the court deemed necessary. Given the 

purpose of the tax dependency exemption and the trial court’s 

discretion in awarding child support and tax exemptions, we 

cannot say that it was an abuse of discretion for the trial court 
Decisions of the Nebraska Court of Appeals

550 21 NEBRASKA APPELLATE REPORTS

to order that Del be current in paying child support in order to 

claim a tax dependency exemption.

5. Attorney Fees

Del argues that the trial court abused its discretion in 

awarding Coleen attorney fees, because the parties have 

similar incomes and Coleen refused to cooperate with Del. 

We disagree.

[24-27] Attorney fees are recoverable in Nebraska only 

when provided for by law or allowed by custom. Cross v. 

Perreten, 257 Neb. 776, 600 N.W.2d 780 (1999). Attorney 

fees and costs are allowed in child support cases brought by a 

child’s mother, father, guardian or next friend, the county attorney, or other authorized attorney. See id. The award of attorney 

fees depends on multiple factors that include the nature of the 

case, the services performed and results obtained, the earning 

capacity of the parties, the length of time required for preparation and presentation of the case, customary charges of the 

bar, and general equities of the case. Sitz v. Sitz, 275 Neb. 832, 

749 N.W.2d 470 (2008). Trial courts and appellate courts are 

equally regarded as experts at determining the value of legal 

services. See In re Interest of Antone C. et al., 12 Neb. App. 

152, 669 N.W.2d 69 (2003). Because the trial court is in a better position to evaluate the award of attorney fees, however, an 

appellate court interferes only when the award is excessive or 

insufficient. See id. Our de novo review of the record did not 

reveal an abuse of discretion in ordering Del to pay $2,000 in 

attorney fees.

VI. CONCLUSION

We determine that the trial court did not abuse its discretion in failing to modify custody, in its determination 

that Del’s child support obligation should be modified, or 

in awarding attorney fees. Accordingly, we affirm the trial 

court’s decision.

Affirmed.