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BOWMAKER v. ROLLMAN

Cite as 29 Neb. App. 742

Andrew K. Bowmaker, appellee, v. 

Christine A. Rollman, appellant.

___ N.W.2d ___

Filed April 13, 2021. No. A-20-466.

1. Modification of Decree: Appeal and Error. Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, 

whose order is reviewed de novo on the record, and will be affirmed 

absent an abuse of discretion by the trial court.

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

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

rather than another.

3. Contempt: Appeal and Error. In a civil contempt proceeding where 

a party seeks remedial relief for an alleged violation of a court order, 

an appellate court employs a three-part standard of review in which (1) 

the trial court’s resolution of issues of law is reviewed de novo, (2) the 

trial court’s factual findings are reviewed for clear error, and (3) the trial 

court’s determinations of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion.

4. Modification of Decree: Attorney Fees: Appeal and Error. In an 

action for modification of a marital dissolution decree, the award of 

attorney fees is discretionary with the trial court, is reviewed de novo on 

the record, and will be affirmed in the absence of an abuse of discretion.

5. Equity: Jurisdiction: Divorce: Child Support. Jurisdiction over 

divorces and child support orders are within the equity powers of the 

district court.

6. Courts: Equity. Where a situation exists that is contrary to the principles of equity and which can be redressed within the scope of judicial 

action, a court of equity will devise a remedy to meet the situation.

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

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

Nebraska Supreme Court Online Library

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

was entered.

8. Modification of Decree: Child Support. The ultimate determination of 

child support modification is entrusted to the trial court’s discretion.

9. ____: ____. In determining whether to order a retroactive modification 

of child support, a court must consider the parties’ status, character, situation, and attendant circumstances.

10. 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.

11. 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.

12. Child Support: Time. There are circumstances to take into consideration wherein a noncustodial parent may not have the ability to pay 

retroactive support in addition to meeting current support obligations.

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

is entrusted to the discretion of the trial court and will be affirmed on 

appeal absent an abuse of discretion.

14. Divorce: Child Support. Child support payments become a vested right 

of the payee in a dissolution action as they accrue.

15. Judgments: Child Support: Proof. Although a court may not forgive 

or modify past-due child support, a court may, on motion and satisfactory proof that a judgment has been paid or satisfied in whole or in part 

by the act of the parties thereto, order it discharged and canceled of 

record, to the extent of the payment or satisfaction.

16. Child Support. The general rule for support overpayment claims 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.

17. Equity: Child Support. Exceptions are made to the rule that no credit 

is given for voluntary overpayment of child support when the equities of 

the circumstances demand it and when allowing a credit will not work a 

hardship on the minor children.

18. Child Support. Whether overpayments of child support should be credited retroactively against child support payments in arrears is a question 

of law.

19. Appeal and Error. An appellate court has an obligation to reach an 

independent conclusion on questions of law.

20. Divorce: Attorney Fees. In awarding attorney fees in a dissolution 

action, a court shall consider the nature of the case, the amount 
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involved in the controversy, the services actually performed, the results 

obtained, the length of time required for preparation and presentation 

of the case, the novelty and difficulty of the questions raised, and the 

customary charges of the bar for similar services.

Appeal from the District Court for Douglas County: Peter 

C. Bataillon, Judge. Affirmed.

Justin A. Roberts, of Lustgarten & Roberts, P.C., L.L.O., for 

appellant.

John F. Eker III and Barbara J. Prince for appellee.

Riedmann, Bishop, and Welch, Judges.

Bishop, Judge.

I. INTRODUCTION

Christine A. Rollman (Christine) appeals an order of the 

Douglas County District Court modifying a Kansas decree 

which dissolved her marriage to Andrew K. Bowmaker 

(Andrew). She claims several errors in the district court’s handling of matters related to Andrew’s child support obligations, 

including the court’s determination that an extrajudicial agreement between the parties precluded finding Andrew in contempt for alleged child support arrearages. She also challenges 

the denial of her request for attorney fees. We affirm.

II. BACKGROUND

1. Kansas Decree and 

Nunc Pro Tunc Order

Christine and Andrew were married on December 12, 2006. 

Their son was born in 2008. On September 3, 2013, they dissolved their marriage through a “Decree of Divorce (With 

Children)” entered in the district court for Riley County, 

Kansas. The decree refers to a May 30, 2013, “Marital 

Settlement Agreement” (marital agreement) “marked as 

Exhibit 1.” The marital agreement was reviewed and approved 

by the court. The decree also referred to a parenting plan, 

which the court approved and made part of the decree. Upon 
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Christine’s motion, the Kansas court entered an “Order Nunc 

Pro Tunc” on November 11, 2018, correcting alleged erroneous designations of the parties in the original decree to reflect 

the rights and obligations of Christine and Andrew. The nunc 

pro tunc order referred to the marital agreement signed on May 

30, 2013, and filed on June 20, which was subsequently ratified and confirmed by entry of the September 3 decree. The 

court proceeded to identify the errors in that agreement and the 

decree and modified both documents accordingly.

As relevant to this appeal, the Kansas court’s initial decree 

and marital agreement, along with the modifications made by 

the nunc pro tunc order, required Andrew to pay the following: $250 per month in child support beginning on September 

1, 2013; “a portion equal to [his] percentage of combined 

income of any required deductible amount, necessary medical, 

or dental expenses of the [parties’ son] that are not covered by 

such [health, dental, or hospitalization] insurance”; and “100% 

of any secondary educational tuition and/or related expenses 

for the [parties’ son].” Both the marital agreement and nunc 

pro tunc order specifically provided that Andrew would not 

be responsible for “any child care and related expenses above 

and beyond the standard monthly child support obligation.” 

Our record does not include any child support worksheet or 

other document indicating the parties’ combined income at 

the time of the Kansas orders. Christine had already moved 

from Kansas at the time of the initial decree, and after other 

moves, she ultimately resided in Gretna, Nebraska, in October 

2016. Andrew also moved to Nebraska in 2016, at some point 

after October.

2. Nebraska Proceedings

Christine registered the Kansas decree and nunc pro tunc 

order in Nebraska on January 17, 2019; the marital agreement 

was not included in that filing. She then filed a complaint to 

modify and an application for contempt on February 26. In 

her complaint to modify, she alleged that a material change 

in circumstances had occurred requiring modification of the 
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parties’ child support obligations under the registered decree. 

In her contempt pleading, she alleged that Andrew had failed to 

pay child support without justification and owed her “the sum 

of $16,000 through January 1, 2019.”

(a) Trial Commences February 14, 2020

Trial commenced on February 14, 2020, and at the onset, 

the district court noted for the record that the court “had a 

long discussion with the attorneys . . . regarding the issues 

in this case” and that the parties reached an agreement as to 

certain matters. An agreed-upon parenting plan and a child 

support calculation were received as evidence. It was agreed 

the incomes reflected in the child support calculation would be 

used, but that values for retirement plans attributed to the parties had to be deleted and the calculation revised. Christine was 

to carry health insurance for their son, and as for noncovered 

medical expenses, Christine would pay the first $250 per calendar year, after which the parties would split the noncovered 

medical costs based on their percentages under a revised child 

support calculation. Those same percentages would be used for 

dividing childcare expenses. The parties also agreed to equally 

split their son’s private school tuition costs through the eighth 

grade. The court orally approved the parties’ agreement and 

parenting plan. At the conclusion of this hearing, the court 

noted that the issues remaining were “what, if anything, the 

[child support] arrearage is, whether there should be . . . retroactive child support and what that should be, and then if attorney[] fees” should be awarded. Andrew’s attorney then raised 

the issue of alternating the tax exemption for the parties’ son as 

set forth in the decree, but which Christine had claimed every 

year. The court deferred that issue until after a determination 

was made as to arrearages.

(b) Continuation of Trial and 

Motion to Set Aside Agreement

Trial continued on February 26, 2020. Christine and 

Andrew offered their testimony and other exhibits relating to 
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financial matters to address the remaining issues. Trial had to 

be continued again to complete Andrew’s testimony and was 

ultimately rescheduled for June 2. On May 29, prior to the June 

2 hearing, Andrew filed a motion to set aside the agreed-upon 

parenting plan and a notice that he was “no longer willing to 

have his child support based on” the income set forth in the 

agreement approved by the district court on February 14. At 

the June 2 hearing, further testimony and evidence relating to 

Andrew’s financial situation and relationship with the parties’ 

son was adduced, which we will set forth more fully later in 

this opinion.

(c) District Court’s Announcement 

of Decision and Order

On June 12, 2020, the parties returned for the district court’s 

announcement of its decision. The court found there had been 

no “material change of circumstances as to the agreement with 

regard to the parenting plan.” As for child support, the court 

concluded there had been a material change of circumstances 

since trial commenced. It noted that “obviously, because of the 

COVID-19 issues there has been a material change of circumstances with regard to [Andrew’s] child support obligation.” 

“As such, the Court is going to allow [Christine] if she wants 

to do additional discovery as to [Andrew’s] income.” The court 

informed Christine’s attorney that he could continue the matter 

for additional evidence. Meanwhile, the court was imputing an 

income of $65,000 per year to Andrew for child support purposes, and it ordered the revised child support to be effective 

as of March 1. Further, the court announced that there were 

“no child support arrears. The parties had an agreement.” The 

court pointed out the parties’ agreement that in lieu of child 

support, Andrew would pay Christine “the tuition and whatever 

else request that was made by [Christine], which could be for 

health reasons, for additional money, things of that nature.” 

The court announced that Andrew would be allowed to claim 

the tax exemption for the parties’ son for the 2020 and 2021 
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tax years and odd-numbered years thereafter. The court indicated that it was “leaving the record open” and that it was up 

to Christine’s counsel whether additional discovery was needed 

as to Andrew’s income. “So the child support is temporary at 

this time unless you guys agree to it [being] permanent. If you 

can’t agree to [it being] permanent, then we’ll set another trial 

date as to the child support.” Christine’s lawyer indicated he 

needed to discuss that with Christine.

On June 17, 2020, the district court entered an “Order of 

Modification” consistent with the findings announced from 

the bench on June 12. The court again noted that Christine 

“was not provided enough notice with regard to the Motion 

to Set Aside” and granted her “leave to conduct additional 

discovery regarding [Andrew’s] income.” The court ordered 

Andrew to pay $631 per month in child support retroactive 

to March 1. Andrew was also ordered to pay 56 percent of 

daycare expenses, 56 percent of noncovered medical expenses 

after Christine paid the first $250 of such expenses, and 

50 percent of “any private school tuition fees incurred on 

behalf of the [parties’ son] through the eighth grade.” Andrew 

was granted the right to claim the tax exemption for the parties’ son on his returns for the tax years 2020 and 2021 and 

each odd-numbered year thereafter. The court further dismissed the contempt matter, finding there to be “no child support arrearage” because Christine and Andrew “had a private 

agreement regarding [Andrew’s] payment of child support to 

[Christine].” The court did not award attorney fees to either 

party. All other terms from the original decree not specifically modified by the court’s order remained in full force 

and effect.

Christine timely appealed.

III. ASSIGNMENTS OF ERROR

Christine claims, condensed and restated, that the district 

court erred in (1) setting aside the parties’ agreements regarding child support and tax exemptions; (2) making Andrew’s 
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retroactive child support effective March 1, 2020, rather than 

1 year earlier; (3) finding no child support arrearage, as a 

result of the parties’ extrajudicial agreement regarding child 

support, and thus dismissing the contempt action; and (4) failing to award Christine attorney fees.

We note, however, that Christine does not specifically argue 

any error regarding the district court’s allocation of tax exemptions, and we therefore decline to address it. See Dycus v. 

Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020) (to be considered by appellate court, party asserting alleged error must both 

specifically assign and specifically argue it).

IV. STANDARD OF REVIEW

[1,2] Modification of a dissolution decree is a matter 

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

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

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

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

appellate court considers and may give weight to the fact that 

the trial court heard and observed the witnesses and accepted 

one version of the facts rather than another. Id.

[3] In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate 

court employs a three-part standard of review in which (1) the 

trial court’s resolution of issues of law is reviewed de novo, (2) 

the trial court’s factual findings are reviewed for clear error, 

and (3) the trial court’s determinations of whether a party is in 

contempt and of the sanction to be imposed are reviewed for 

abuse of discretion. McCullough v. McCullough, 299 Neb. 719, 

910 N.W.2d 515 (2018).

[4] In an action for modification of a marital dissolution 

decree, the award of attorney fees is discretionary with the trial 

court, is reviewed de novo on the record, and will be affirmed 

in the absence of an abuse of discretion. Garza v. Garza, 288 

Neb. 213, 846 N.W.2d 626 (2014).
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V. ANALYSIS

1. Prospective Child Support Agreement

Christine contends the district court abused its discretion in setting aside the parties’ agreement related to income 

figures to be used for calculating child support. That agreement 

was approved by the district court on February 14, 2020, prior 

to the continuation of trial. The agreement provided that for 

the purpose of calculating Andrew’s child support obligation, 

Andrew was agreeing to be imputed an income of $8,333 per 

month or approximately $100,000 per year because of his earning history, even though his present annual salary was $65,000. 

Based upon this figure, Andrew’s child support payments were 

calculated to be $872 per month. In his testimony given on 

February 26, Andrew affirmed that this amount matched his 

understanding of the agreement.

Then, on May 29, 2020, Andrew moved the court to set aside 

this agreement, just before the continuation of trial scheduled 

for June 2. He asked the court to take into consideration the 

“significant downturn in his business and his income.” He 

requested that his child support obligation be based on his 

yearly salary of $65,000, rather than the imputed $100,000 

annual income agreed upon previously.

Prior to when Andrew started a business with his brotherin-law in December 2019, the joint tax returns of Andrew and 

his current wife showed a combined gross income of $123,867 

for 2017 and $121,380 for 2018. Andrew did not provide a 

tax return for 2019 or other tax documentation, stating that 

his accountant had his W-2 wage and tax statement and that 

he was “waiting for a K-1 from 2019” in order to complete 

his 2019 tax return. Andrew testified his annual income was 

approximately $105,000 at the time Christine filed her complaint to modify in February 2019. However, he was laid off 

later that year in September or October, and was unemployed 

until December, when he and his brother-in-law started a 

business, Summit Metal Recycling Inc. (Summit). As joint 

owners, Andrew and his brother-in-law had the authority to 
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divide the corporation’s profits. The only salaried employees 

of Summit were Andrew and his current wife. The statements 

of earnings provided to the district court initially reflected an 

annual salary of $100,000 in January 2020, but beginning in 

February, his income was adjusted to reflect an annual salary 

of $65,000. Despite this reduction, Andrew agreed to have his 

income imputed at $100,000 per year “because of the history 

of having a job working $100,000 and just trying to do the 

right thing.”

However, upon continuation of trial, Andrew subsequently 

testified that the coronavirus pandemic severely impacted his 

business, saying that “[t]he Coronavirus has basically wiped 

out [his] customer base.” He stated that his wife was no longer 

working as an employee of Summit because he “couldn’t 

afford her anymore” despite receipt of $147,000 from his 

brother-in-law as an investment in the corporation. He also 

received a loan of $33,000 from the “payroll protection” program established by the “CARE[S] Act” after his wife was 

furloughed to cover payroll expenses. Even with these loans, 

Andrew affirmed that he was “struggling to pay” his $65,000 

salary. With respect to Summit’s finances, Andrew offered a 

profit-and-loss statement reflecting the monthly profits and 

losses of Summit through May 2020. This statement indicated 

that from January through May, Summit experienced a net 

loss of $107,169.91, although we note a total of $35,000 in 

expenses classified as “Owner Distribution.”

Christine asserts the district court abused its discretion 

in setting aside the agreement the parties had reached at the 

beginning of trial which established the figures to be used 

in the calculation of Andrew’s child support obligation. She 

argues in part that “setting aside agreements made on the 

record in the middle of a trial is contrary to the public policy 

on settlements.” Brief for appellant at 25. It is true that our 

public policy favors the settlement and compromise of disputes. See Holoubek v. Romshek, 16 Neb. App. 677, 749 

N.W.2d 901 (2008). There is no dispute the parties came to 
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an agreement, orally approved by the district court on the first 

day of trial, regarding the parenting plan and the figures to 

be used in calculating Andrew’s child support obligation. The 

record also plainly demonstrates the parties agreed the only 

disputes remaining after that same hearing were “the possibility of retroactive child support, the arrearages with regard to 

the contempt on child support, and attorney[] fees.” Andrew’s 

dispute over his imputed income also came well after the district court entered its scheduling order.

[5,6] However, despite the court’s initial approval of the 

parties’ agreement, the court did not enter an order incorporating the income figures into the calculation of child support, 

because the trial was continued for further hearing. Proceedings 

were still ongoing at the time Andrew filed his notice on May 

29, 2020, and the final trial date did not take place until June 

2. With the case still pending, it remained in the court’s equitable power to consider the unexpected financial circumstances 

caused by the coronavirus pandemic when deciding whether or 

not to set aside the parties’ earlier agreement. See Drennen v. 

Drennen, 229 Neb. 204, 426 N.W.2d 252 (1988) (jurisdiction 

over divorces and child support orders within equity powers of 

district court). And “[w]here a situation exists that is contrary 

to the principles of equity and which can be redressed within 

the scope of judicial action, a court of equity will devise a 

remedy to meet the situation.” Yori v. Helms, 307 Neb. 375, 

387, 949 N.W.2d 325, 336 (2020). We find no abuse of discretion in the court’s remedy here, which was its decision to 

set aside the parties’ earlier agreement regarding Andrew’s 

imputed income due to the unusual intervening circumstances 

and evidence brought to the court’s attention before the case 

was fully submitted.

Christine claims, however, that equity requires enforcement 

of the agreement, as Andrew provided very little notice and 

“it would simply waste the money the parties spent on their 

attorneys to secure those agreements” over the “one year and 

four months” Christine has waited “to see the benefit of her 
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bargain.” Brief for appellant at 30. She argues that setting 

aside the agreed upon child support figures caused her inequity through her being “‘blindsided’” by Andrew’s dispute 

and being denied “the benefit of her bargain” paid for by 

her time and attorney fees. Id. While we can appreciate her 

argument, we cannot ignore or discount the unforeseeable 

impact the coronavirus pandemic has caused throughout 2020 

and into the present. At the time of the parties’ agreement in 

February 2020, the true extent of the coronavirus’ economic 

effects on businesses was neither fully known nor anticipated. 

In addition, to balance out Andrew’s late dispute over his 

imputed income, the district court provided Christine leave 

to pursue additional discovery regarding Andrew’s finances 

and ordered the child support award to be “temporary . . . 

unless [she] agree[d] to it permanent[ly].” Christine chose not 

to pursue that option, electing instead to accept and directly 

appeal the district court’s order. We do not see the court’s 

decision to set aside the agreement and give Christine leave 

to conduct additional discovery to be, as Christine characterizes it, an invitation “for endless litigation on matters that had 

been resolved before the trial . . . even began.” Id. Rather, 

the court’s decision recognized the extraordinary circumstances that materialized over the course of this action and 

attempted to balance the equities accordingly. In light of the 

coronavirus pandemic and the options for further discovery 

made available to Christine, the district court’s decision not to 

enforce the parties’ earlier agreement did not cause inequity 

to Christine.

[7,8] While Christine contests the district court’s characterization of the coronavirus pandemic as an independent material change in circumstances to set aside the agreement, we 

note this characterization was not necessary. A party seeking 

to modify a child support order must show a material change 

in circumstances that (1) occurred subsequent to the entry of 

the original decree or previous modification and (2) was not 

contemplated when the decree was entered. Tilson v. Tilson, 
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307 Neb. 275, 948 N.W.2d 768 (2020). Both Christine and 

Andrew have agreed that a material change in circumstances 

occurred to justify the district court’s modification of the original decree, and the district court found the same. However, 

the ultimate determination of child support modification is 

entrusted to the trial court’s discretion. See Windham v. Kroll, 

307 Neb. 947, 951 N.W.2d 744 (2020).

Christine also asserts that the evidence and testimony 

offered by Andrew regarding his income and the financial 

health of Summit “should be viewed with some suspicion.” 

Brief for appellant at 33. She contends “[t]here was no credible evidence” regarding Andrew’s financial situation or the 

effect of the coronavirus pandemic on his downturn in business to justify the district court’s decision to set aside the 

figures for child support agreed to by the parties. Id. at 34. 

Andrew testified that his salary was $65,000 per year at the 

time of the parties’ agreement in February 2020, but that 

he agreed to have his income imputed at $100,000 because 

he hoped to return to that level of income. However, his 

statements of income indicate his monthly income remained 

consistent with an annual salary of $65,000 through May 

2020. Additionally, the profit-and-loss statement shows that 

in the first 5 months of 2020, Summit sustained a profit of 

$48,887.20 in January, a loss of $159,069.28 in February, 

a loss of $4,844.90 in March, a profit of $16,013.22 in 

April, and a loss of $8,156.15 in May. These figures totaled 

a net loss of $107,169.91. Christine further points out that 

Summit’s “Payroll Expense is already $53,916.68 through 

May 29, 2020,” despite the fact that Andrew is the only 

employee after he furloughed his wife earlier in 2020. Brief 

for appellant at 33. The profit-and-loss statement also indicates expenses labeled “Cash In” totaling $8,800 and “Owner 

Distribution” of $5,000 and $10,000 in April and May 2020. 

Christine highlights that “simple math dictates that there 

would have been a profit [in May 2020] had there not been an 

owner distribution of $10,000.00.” Id. at 34.
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We note that many of the issues raised by Christine stem 

from Andrew’s changed position regarding his imputed income 

and Christine’s subsequent election to accept the district court’s 

order as final to pursue this appeal rather than engage in further discovery. Christine did not question Andrew for explanations of the discrepancies she now identifies on appeal or 

the extent of the coronavirus pandemic’s effect on Summit’s 

scrap metal business; nor did she seek any of Summit’s balance sheets, bank account statements, or other documentation 

of Summit’s financial health after the district court granted 

leave for additional discovery. As we have already described, 

these matters were open to further exploration and examination 

through the court’s decision to grant Christine leave to conduct 

additional discovery.

The record before us reflects an essentially unchallenged 

presentation of evidence regarding Andrew’s finances, although 

Christine now uses this appeal to highlight the incompleteness of the record and inconsistencies in that evidence. We 

are mindful that where the evidence is in conflict, an appellate court considers and may give weight to the fact that the 

trial court heard and observed the witnesses and accepted one 

version of the facts rather than another. See Tilson v. Tilson, 

307 Neb. 275, 948 N.W.2d 768 (2020). Here, the trial court 

accepted Andrew’s evidence and found him credible. Despite 

being given the opportunity to do so, Christine neither challenged that evidence at trial nor pursued additional discovery 

to contest Andrew’s characterization of Summit’s financial 

health. Given these circumstances, we find the district court 

did not abuse its discretion in ordering Andrew’s income to 

reflect an annual salary of $65,000.

2. Retroactive Child Support

Christine also claims on appeal that the district court abused 

its discretion in setting Andrew’s retroactive child support to be 

effective as of March 1, 2020, rather than a year earlier, following the filing of her complaint to modify in February 2019.
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[9-13] In determining whether to order a retroactive modification of child support, a court must consider the parties’ status, character, situation, and attendant circumstances. Johnson 

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

equities to the contrary, modification of a child support order 

should be applied retroactively to the first day of the month 

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

Generally, 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. See id.

However, there are circumstances to take into consideration 

wherein the noncustodial parent may not have the ability to 

pay retroactive support in addition to meeting current support 

obligations. Roberts v. Roberts, 25 Neb. App. 192, 903 N.W.2d 

267 (2017). The initial determination regarding the retroactive 

application of a modification order is entrusted to the discretion of the trial court and will be affirmed on appeal absent an 

abuse of discretion. Id.

Christine claims the district court abused its discretion 

because Andrew failed to prove he was unable to pay the modified child support retroactively to March 2019. She asserts that 

Andrew “did not give credible testimony,” brief for appellant 

at 35, and “refused to provide any documentation to verify he 

could not pay retroactive child support and still meet his current obligations,” specifically identifying that Andrew “never 

showed any documents to verify that he lost 30 percent to onethird of his income” and “refused to provide income tax information,” id. at 36. She argues that the district court erred when 

it “took his word at face value, even though his testimony was 

proven incorrect.” Id.

We have previously described Andrew’s testimony and the 

evidence regarding his income and Summit’s financial health. 

As noted previously, the district court found Andrew’s testimony and evidence to be credible concerning his ability to 

pay retroactive child support. Based on the record before us, 

and giving weight to the fact that the trial court heard and 
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observed the witnesses, we cannot say the court abused its discretion in setting Andrew’s modified child support obligation 

to commence on March 1, 2020.

3. Child Support Arrearage

Christine contends the district court erred when it found 

Andrew not to be in contempt due to Andrew’s payment of 

certain expenses in lieu of child support pursuant to an extrajudicial agreement between Christine and Andrew.

In a civil contempt proceeding where a party seeks remedial 

relief for an alleged violation of a court order, an appellate 

court employs a three-part standard of review in which (1) the 

trial court’s resolution of issues of law is reviewed de novo, (2) 

the trial court’s factual findings are reviewed for clear error, 

and (3) the trial court’s determinations of whether a party is in 

contempt and of the sanction to be imposed are reviewed for 

abuse of discretion. McCullough v. McCullough, 299 Neb. 719, 

910 N.W.2d 515 (2018). Accordingly, we will first consider 

whether the parties’ agreement for payments in lieu of child 

support was legally permissible, thus allowing credits against 

the child support owed. We will then consider whether any of 

the district court’s factual findings related to the credits were 

clearly erroneous. Finally, we will consider whether the court 

abused its discretion when it concluded Andrew was not in 

contempt and dismissed the contempt action.

(a) Payments for Expenses in 

Lieu of Child Support

[14,15] As a precursor to our analysis, we are mindful that 

child support payments become a vested right of the payee 

in a dissolution action as they accrue. See Ybarra v. Ybarra, 

28 Neb. App. 216, 943 N.W.2d 447 (2020). Also, a court 

may not forgive or modify past-due child support. Dartmann 

v. Dartmann, 14 Neb. App. 864, 717 N.W.2d 519 (2006). 

However, a district court may, on motion and satisfactory 

proof that a judgment has been paid or satisfied in whole or in 
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part by the act of the parties thereto, order it discharged and 

canceled of record, to the extent of the payment of satisfaction. Id. However, in this case, Andrew did not motion the 

district court to discharge his child support obligation under 

the Kansas decree, and the district court did not order that 

obligation discharged. The issue of Andrew’s arrearages was 

raised by Christine’s contempt action, and the district court’s 

order solely concerned whether or not Andrew was in contempt of his obligation under the Kansas decree. Our review is 

likewise limited to whether the district court abused its discretion in dismissing the contempt matter.

[16-19] In considering the question of contempt, we address 

whether the voluntary payments made by Andrew outside the 

terms of the Kansas court’s orders can be credited against 

Andrew’s child support obligation. Nebraska courts have 

allowed the granting of a credit against child support arrearages in certain circumstances. See, e.g., Berg v. Berg, 238 Neb. 

527, 471 N.W.2d 435 (1991) (affirming credit given against 

father’s child support arrearage for period when father had 

two of four children in his possession and continued paying 

mother full child support amount); Speicher v. Speicher, 6 

Neb. App. 439, 572 N.W.2d 804 (1998) (affirming trial court’s 

order offsetting father’s child support arrearage with his interest in marital home). A voluntary overpayment of child support 

occurs when a party pays above and beyond what is required 

by a child support order. In Nebraska, the general rule for 

support overpayment claims 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. Jameson 

v. Jameson, 13 Neb. App. 703, 700 N.W.2d 638 (2005). See, 

also, Johnson v. Johnson, 290 Neb. 838, 862 N.W.2d 740 

(2015); Palagi v. Palagi, 10 Neb. App. 231, 627 N.W.2d 765 

(2001). However, exceptions to this general rule are made 

when the equities of the circumstances demand it and when 

allowing a credit will not work a hardship on the minor children. See Jameson v. Jameson, supra. Whether overpayments 
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of child support should be credited retroactively against child 

support payments in arrears is a question of law. Palagi v. 

Palagi, supra. An appellate court has an obligation to reach an 

independent conclusion on questions of law. Id.

We conclude that the equities of the present case demand 

allowing certain credits for Andrew’s payments and that allowing such credits will not work a hardship on the parties’ son, 

the one minor child in this case. Notably, Andrew did not 

unilaterally modify the Kansas court’s order; rather, the parties mutually agreed to Andrew’s payment of expenses in lieu 

of child support payments. The district court determined there 

was no arrearage in child support because “the parties had 

a private agreement regarding [Andrew’s] payment of child 

support to [Christine].” In finding no arrearages, the court 

described that Andrew “was supposed to pay the tuition and 

whatever [other] request that was made by [Christine], which 

could be for health reasons, for additional money, things of 

that nature.”

Of significance, the record before us includes a copy of a 

bankruptcy petition filed by Christine in 2017 and accompanying schedules dated in August of that year. This petition, signed 

by Christine, included the following declaration:

[Christine] is entitled to receive $250.00/month in child 

support per her divorce decree. However, [Christine] 

states that in lieu of paying child support, her ex-husband 

contributes to half of their son’s medical, school tuition, 

and childcare expenses. [Christine] states that she is not 

owed any arrearages based on this agreement.

An attached schedule to the bankruptcy petition estimated that 

Andrew paid approximately $300 per month. At trial, Christine 

characterized this agreement as an “understanding” that “happened . . . over time.” She claimed that she and Andrew never 

“truly said, like, in lieu of [child support,] . . . [b]ut that’s 

what it turned into.” She affirmed that she understood these 

payments to be in lieu of child support and believed Andrew 

to understand the same. Several exhibits evidenced direct 
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payments made by Andrew to Christine through other means, 

including by cash, check, and online payments.

As described previously, the Kansas decree and subsequent 

order nunc pro tunc required Andrew to pay $250 per month 

in child support through the Kansas child support payment 

center. He was also to pay “a portion equal to [his] percentage of combined income of any required deductible amount, 

necessary medical, or dental expenses of the [parties’ son] 

that are not covered by . . . insurance[,]” and “100% of any 

secondary educational tuition and/or related expenses for the 

[parties’ son].” The order did not impose an obligation on 

Andrew for primary school tuition or daycare expenses, yet 

he contributed to these and other expenses upon Christine’s 

request. Christine primarily contests the crediting of private 

school tuition and medical costs against Andrew’s child support obligation.

(i) Private School Tuition Expenses

Christine contends that it was the parties’ mutual decision 

that their son should attend a private school and that therefore, 

allowing Andrew to be credited for his half of tuition payments 

caused “the tuition costs, in effect, [to fall] 100 percent on” 

her. Brief for appellant at 38. She asserts that the tuition payments should be treated as voluntary overpayments of child 

support and that no credit should be given against Andrew’s 

child support obligation for his half of their son’s tuition.

We note that this court has previously rejected a father’s 

request for a credit against his child support for his payments toward his daughter’s university expenses. See Palagi 

v. Palagi, 10 Neb. App. 231, 627 N.W.2d 765 (2001). In doing 

so, this court found the father “knowingly and voluntarily paid 

these additional large expenses in spite of [the mother’s] declination to ‘accept’” the payments in lieu of child support. Id.

at 242, 627 N.W.2d at 774. Further, we described the father as 

“predisposed all along to fund [his daughter’s] education.” Id.

Christine suggests that the “rule in Palagi should be applied 
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to the case at bar, because the parties made a joint decision to 

enroll [their son] in a private school with tuition expenses.” 

Brief for appellant at 39. However, we find the existence of 

the parties’ agreement that Andrew would pay tuition, along 

with other expenses paid in lieu of child support which he was 

not court ordered to pay, distinguishes this case from Palagi v. 

Palagi, supra. The equities in this case favor the allowance of 

a credit for the tuition payments against Andrew’s child support obligation.

(ii) Medical Expenses

As for Andrew’s contribution to medical expenses in the 

amount of $1,075.87, we agree with Christine that the original Kansas decree obligated Andrew to pay some percentage 

of uncovered medical expenses and that “obligation . . . is 

separate and in-addition-to the child support obligation.” Brief 

for appellant at 38. Since Andrew was obligated under the 

Kansas decree to pay for such expenses in addition to child 

support, any payments made for such expenses should be disregarded in determining credits for child support. To the extent 

Andrew may have underpaid or overpaid his share of such 

expenses based upon his percentage of the parties’ combined 

income, we are unable to consider the same, since our record 

does not include any figures concerning the parties’ combined 

income at the time of the Kansas decree. We conclude these 

payments should not be credited against Andrew’s child support obligation.

(iii) Other Payments

Regarding all other payments, the record provides little 

description of their intended purpose or eventual use. Christine 

indicated in her testimony that Andrew would pay her varying 

amounts at different times after the entry of the Kansas decree, 

lower than the required $250 per month. She described that 

Andrew would pay a share of certain other bills and expenses, 

such as daycare, while also occasionally giving her cash when 
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she requested. With the same considerations in mind as we 

have previously described, we find that to any extent these 

payments constituted overpayments of child support, Andrew 

should be credited for these payments as well.

(b) Factual Determinations 

Related to Credits

At $250 per month, Andrew’s obligation under the original 

child support order totaled $19,500 when accounting for the 

78 months from September 2013, when the Kansas decree 

was entered, until March 1, 2020, when the modified child 

support became effective. At trial, Christine offered a certified copy of the records maintained at the Kansas child support payment center that indicated Andrew made no payment 

of child support through that payment center. In finding no 

arrearages, the district court described that Andrew “was supposed to pay the tuition and whatever [other] request that was 

made by [Christine], which could be for health reasons, for 

additional money, things of that nature.” As discussed previously, to the extent the district court’s reference to “health 

reasons” included medical payments made by Andrew in its 

consideration of credits against child support, it was error to 

do so.

A spreadsheet summarizing Andrew’s direct payments 

to Christine from September 3, 2013, through June 29, 

2019, totaled $13,887.44. Included in these payments were 

$1,075.87 paid by Andrew for half of their son’s uncovered 

medical expenses and $4,080 for half of his private primary 

school tuition. In addition to these payments, Christine and 

Andrew testified that Andrew at times made cash payments to 

Christine, although Christine conceded that she did not “know 

how much [Andrew] paid [her] in cash.” Our record includes 

an estimation providing that from September 2013 until an 

unspecified month in 2019, Andrew paid approximately 

$3,300 to Christine in cash. In addition to this cash amount, 

the estimation includes an asserted $500 credit for 2 months in 
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2019 when the parties’ son lived with Andrew; the document 

reflects a sum totaling $3,800. Finally, beginning August 

4, 2019, and continuing through February 9, 2020, Andrew 

made direct online payments to Christine totaling $2,550. 

Combined, Andrew paid Christine approximately $20,237.44 

from September 2013 until March 1, 2020. When subtracting 

out the $1,075.87 paid for medical expenses, Andrew paid 

Christine approximately $19,161.57 for their son’s expenses in 

lieu of child support.

(c) Contempt

We turn now to the question of whether the district court 

abused its discretion by finding Andrew was not in contempt 

of the parties’ decree and in dismissing the contempt matter 

against him. Accounting for credits permitted, we have determined that Andrew paid $19,161.57 in various expenses that 

the district court could properly credit against Andrew’s child 

support obligation of $19,500, which would have accrued from 

September 1, 2013, until March 1, 2020. Deducting Andrew’s 

payments from the child support obligation results in a deficit 

of $338.43.

Here, as we have previously noted, we are determining only 

whether the district court abused its discretion in concluding 

Andrew was not in contempt of court related to his child support obligation under the Kansas decree. Therefore, in addition 

to our own math calculation set forth above, we are also mindful that as of August 2017, Christine averred in her bankruptcy 

documents that no child support arrearage existed at that point 

in time. So, when considering the timeframe from September 

2017 until March 1, 2020 (30 months), child support of $7,500 

would have accrued under the Kansas decree. Undisputed 

evidence shows Andrew paid $7,826.98 to Christine during 

that timeframe. Accordingly, we cannot say the district court 

abused its discretion in concluding Andrew was not in contempt of the Kansas court’s child support order and in dismissing Christine’s contempt action.
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4. Attorney Fees

Christine asserts that the district court abused its discretion 

in not awarding her attorney fees.

[20] In an action for modification of a marital dissolution 

decree, the award of attorney fees is discretionary with the 

trial court and will be affirmed in the absence of an abuse of 

discretion. See Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 

(2014). It has been held that in awarding attorney fees in a dissolution action, a court shall consider the nature of the case, 

the amount involved in the controversy, the services actually 

performed, the results obtained, the length of time required for 

preparation and presentation of the case, the novelty and difficulty of the questions asked, and the customary charges of the 

bar for similar services. Id.

Christine argues that Andrew “treated [her] unfairly and 

inequitably during the proceedings” when he “failed to respond 

to certain discovery requests” yet was “permitted to testify 

about his reasons that he should not pay retroactive child support and a possible arrearage.” Brief for appellant at 43. She 

claims that this permitted Andrew to “unfairly surprise [her] 

with his testimony and documents” while “the issues became 

moving targets.” Id. She further highlights the difference in 

income and earning capacity between herself and Andrew. 

Christine offered an affidavit as to her outstanding attorney 

fees, indicating that she incurred $9,383.05 in fees for trial 

preparation and would incur additional fees for trial.

As set forth above, we did not find inequity in the district 

court’s handling of the issues regarding Andrew’s income and 

general financial health. The economic effects of the coronavirus pandemic provided sufficient justification for the district 

court to reopen the calculation of Andrew’s child support obligation. The court granted Christine leave to conduct further 

investigation into Andrew’s claim about the adverse financial impact of the coronavirus pandemic; however, Christine 

elected to pursue this appeal instead. Based on the record 
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before us, we cannot say the district court abused its discretion 

in not awarding Christine attorney fees in this case.

VI. CONCLUSION

Although we conclude the district court erred to the extent 

it may have included Andrew’s payment of medical expenses 

for the parties’ son in its consideration of credits to be applied 

to Andrew’s child support obligation, we nevertheless find the 

record supports the court’s ultimate conclusion that no child 

support arrearage existed based upon the parties’ private agreement. Therefore, the court did not abuse its discretion in finding Andrew was not in contempt of the Kansas court’s child 

support order and in dismissing the contempt action. We also 

find no error in the court’s decision related to child support 

prospectively and retroactively, nor in its decision declining to 

award attorney fees to either party. The district court’s June 17, 

2020, modification order is affirmed.

Affirmed.