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HODGEN v. HODGEN

Cite as 30 Neb. App. 456

Lisa A. Hodgen, appellant, v. 

Mark S. Hodgen, appellee.

___ N.W.2d ___

Filed January 11, 2022. No. A-20-927.

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

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

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

was entered.

3. ____: ____: ____. The party seeking the modification has the burden 

to produce sufficient proof that a material change of circumstances has 

occurred that warrants a modification and that the best interests of the 

child are served thereby.

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

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

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

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

income, and whether the change is temporary or permanent.

5. Modification of Decree: Alimony: Good Cause. An award of alimony 

may be modified or revoked if the moving party can show good cause.

6. Modification of Decree: Child Support: Alimony: Good Cause. A 

material change in circumstances in modification of child support cases 

is analogous to the good cause standard articulated for modification of 

alimony.

7. Modification of Decree: Child Support: Alimony. In the context of 

child support and alimony modification, a complaint for modification 

will be denied if the change in financial condition is due to fault or voluntary wastage or dissipation of one’s talents and assets.

Nebraska Supreme Court Online Library

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

01/11/2022 08:07 AM CST
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HODGEN v. HODGEN

Cite as 30 Neb. App. 456

8 Judgments: Words and Phrases. A judicial abuse of discretion 

requires that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial right and 

a just result.

9. Modification of Decree: Child Support: Alimony. Where a party owes 

past due alimony or child support, the failure to pay must be found to be 

a willful failure in spite of an ability to pay before a request for modification of a decree may be dismissed on the basis of unclean hands.

10. Equity. Equity is not a rigid concept, and its principles are not applied 

in a vacuum, but instead, equity is determined on a case-by-case basis 

when justice and fairness so require.

Appeal from the District Court for Lincoln County: Richard 

A. Birch, Judge. Affirmed.

James C. Bocott, of Law Office of James C. Bocott, P.C., 

L.L.O., for appellant.

Lindsay E. Pedersen, Attorney at Law, P.C., L.L.O., for 

appellee.

Riedmann, Bishop, and Arterburn, Judges.

Bishop, Judge.

INTRODUCTION

Lisa A. Hodgen, now known as Lisa A. Pickett, appeals 

from the order of the Lincoln County District Court modifying a decree which dissolved her marriage to Mark S. Hodgen. 

Lisa claims the district court abused its discretion in finding 

that a material change in circumstances had occurred justifying the reduction of Mark’s child support and alimony obligations. She also argues the district court abused its discretion in 

reducing Mark’s support obligations over her claim of unclean 

hands. We affirm.

BACKGROUND

February 2018 Decree of Dissolution

The parties’ marriage was dissolved by decree on February 

27, 2018. The decree reflects that the parties were married in 

1977, and at the time of divorce, Lisa was 57 years old and 
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HODGEN v. HODGEN

Cite as 30 Neb. App. 456

Mark was 58 years old. Mark was ordered to pay $1,000 per 

month as alimony to Lisa for a period of 180 months. Only 

two of the parties’ children were affected by the decree; the 

parties were awarded joint legal custody, and Lisa was awarded 

physical custody. Mark was ordered to pay $1,405 per month 

in child support to Lisa, which could be abated by 50 percent 

in June, July, and August of each calendar year “so long as 

[Mark] has the minor children for visitation for 28 days or 

more during the summer.” Lisa appealed the decree, but in 

case No. A-18-424, this court dismissed her appeal on July 12, 

2018, for failure to file a brief.

Post-decree Proceedings

On October 1, 2018, Mark filed an “Application and Affidavit 

to Obtain Abatement of Child Support for Summer Visitation” 

in the district court, alleging that he had exercised 33 days of 

parenting time in the summer of 2018 and seeking a 50-percent 

abatement of his child support obligation for the months of 

June, July, and August in accordance with the February 2018 

decree. Lisa objected to Mark’s requested abatement, claiming that her living situation with the children could not afford 

having Mark’s child support payments be halved. In an order 

entered on December 20, the district court granted Mark a 

50-percent abatement in his child support obligation for the 

month of July, but the court denied his requests for abatement 

for June and August. Mark appealed the December 20 order, 

claiming the court erred in denying his request for abatement 

for June and August. In Hodgen v. Hodgen, No. A-19-285, 

2019 WL 6130934 (Neb. App. Nov. 19, 2019) (selected for 

posting to court website), this court reversed the district court’s 

order and remanded the matter with directions to grant Mark 

the requested 50-percent abatement for the months of June, 

July, and August 2018 in accordance with the terms of the parties’ decree.

January 2020 Complaint to Modify Decree

On January 30, 2020, Mark filed a “Complaint to Modify 

Decree” in the district court, alleging that the loss of his 
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HODGEN v. HODGEN

Cite as 30 Neb. App. 456

employment and the corresponding decrease in his income 

constituted a material change in circumstances justifying modification of his child support and alimony obligations. Trial took 

place on September 10. Mark appeared with his attorney; Lisa 

did not appear, but she was represented by her attorney.

The evidence adduced at trial demonstrated that Mark had 

been employed by Union Pacific for 18 years and that he 

made approximately $95,000 in annual income. In September 

2019, Mark was dismissed from his employment after an internal investigation and hearing; this dismissal stemmed from 

Mark’s failure to properly complete employee risk assessments 

despite his belief that he was properly completing them. Mark 

appealed his dismissal through Union Pacific’s internal review 

process, and his dismissal was upheld. Following the termination of his employment, Mark began looking elsewhere for 

a job. He applied for several positions and found no success 

until April 2020. Mark testified that he relied on his savings 

to take care of his living expenses and that he had also cashed 

out his life insurance policy and a “CD” purchased after the 

parties’ divorce to help cover his expenses. Beginning in 

October 2019, Mark began to receive “a little over $1,400 a 

month” in unemployment. This period of unemployment lasted 

until Mark found employment in April 2020. Mark subsequently left this job and began new employment in June. His 

annual salary was approximately $57,000 at the time of trial 

in September.

While he was unemployed, Mark began missing payments 

on his support obligations, and he continued to miss further 

payments after he became employed in April 2020. The payment history reports for Mark’s alimony and child support 

show that under the terms of the parties’ decree, Mark owed 

$8,791.84 in unpaid child support and $12,190.06 in unpaid 

alimony as of September 8, 2020. Mark did not dispute these 

amounts at trial, and he testified that it would have been 

“[i]mpossible” for him to pay his support obligations while 

he was unemployed. He also expressed his belief that he 

could not afford to pay much toward his support obligations 
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even after finding employment due to uncertainties in his living situation.

Order of Modification, October 

2020 Motions, and Appeal

On September 24, 2020, the district court entered an order 

modifying Mark’s support obligations. At the time of the order, 

one of the two children affected by the February 2018 decree 

had attained the age of majority, and the court determined that 

there had “been no change in the earning capacity of [Lisa] 

since the decree was entered.” With respect to Mark’s loss of 

employment and reduced income, the court found:

It is undisputed that [Mark] was fired from his job with 

the Union Pacific Railroad for not properly preparing the 

required monthly risk assessments. However, it is equally 

clear that [he] did not voluntarily leave his job or reduce 

his earning capacity. The evidence is undisputed that 

he believed he was properly completing the risk assessments, and performing his job in the required manner. 

[Mark] did not want to leave his 28 [sic] year employment with the railroad, and took every step he could to 

retain that employment. Obviously, . . . Union Pacific 

disagreed with his opinion regarding the manner in which 

he was completing the risk assessments, and was correct 

in its conclusion. However, that result is not dispositive of 

[Mark’s] complaint.

Even though it was [Mark’s] actions that caused him 

to lose his job, he believed he was performing his job 

properly and he had no intention of violating his rules 

of employment, reducing his income, or dissipating his 

earning capacity. Additionally, after being fired he undertook a serious and consistent effort to regain his job 

with the railroad and when that failed to find alternate 

employment.

Based on Mark’s change of employment and loss of income, 

the court found that modification of Mark’s child support 

obligation was warranted because there was a material change 
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HODGEN v. HODGEN

Cite as 30 Neb. App. 456

in circumstances occurring after the February 2018 decree 

not contemplated when the decree was entered. This material 

change in circumstances was also deemed to be good cause 

to modify Mark’s alimony obligation. The court concluded 

that “there was no bad faith motive” in Mark’s reduced level 

of income, that the reduction did not result from “the mere 

passage of time” or Mark’s “wrongdoing or voluntary dissipation,” and that the change was permanent. Based on these 

findings, the court ordered Mark to pay $750 per month in 

alimony to Lisa and $797 per month in child support, with a 

50-percent abatement of child support in August if Mark exercised 28 consecutive days of his summer parenting time. The 

order set March 31, 2020, as the effective date of modification 

and also required Mark to maintain health insurance for the 

minor child.

Following the entry of the district court’s order, Mark filed a 

“Motion to Reconsider, Alter or Amend Order” that requested 

the court to set the date of modification back to January 1, 

2020, and to further reduce his alimony obligation to $600 per 

month. Lisa also filed a “Motion for New Trial” alleging that 

the September 2020 order modifying Mark’s support obligation 

was “not sustained by sufficient evidence” and was “contrary 

to law.” Lisa also claimed that the district court’s order of 

modification “did not address or make findings of fact concerning [her] allegation of ‘unclean hands’ when the evidence 

was undisputed that [Mark] had the ability to pay child support 

and spousal support, yet intentionally elected not to pay support due.” Following a hearing held on October 19, the court 

denied the parties’ respective motions in a journal entry entered 

on December 7.

Lisa appeals.

ASSIGNMENTS OF ERROR

Lisa claims the district court abused its discretion in modifying Mark’s child support and alimony, because Mark’s reduced 

income was his own fault and thus could not be either a 

material change in circumstances or good cause justifying 
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modification. She also claims the court abused its discretion 

in modifying Mark’s support obligations over her claim of 

unclean hands based on Mark’s failure to pay child support 

and alimony.

STANDARD OF REVIEW

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

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

novo on the record, and will be affirmed absent an abuse of 

discretion by the trial court. Tilson v. Tilson, 307 Neb. 275, 948 

N.W.2d 768 (2020).

ANALYSIS

Modification of Child Support 

and Alimony

Lisa claims the district court abused its discretion in reducing Mark’s child support to $797 per month and alimony to 

$750 per month. She claims that “[i]t is undisputed that [Mark] 

was fired for wrongdoing” in that his dismissal was based upon 

his failure to properly complete employee risk assessments. 

Brief for appellant at 12. She argues that under Nebraska law, 

Mark’s termination from his employment with Union Pacific 

and his corresponding decreased income could not be a material change in circumstances or good cause to warrant the 

modification of his child support or alimony because Mark was 

at fault for the loss of his employment.

[2-6] A party seeking to modify a child support order must 

show a material change in circumstances which (1) occurred 

subsequent to the entry of the original decree or previous 

modification and (2) was not contemplated when the decree 

was entered. Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 

275 (2018). The party seeking the modification has the burden 

to produce sufficient proof that a material change of circumstances has occurred that warrants a modification and that 

the best interests of the child are served thereby. Id. Among 

the factors to be considered in determining whether a material change of circumstances has occurred are changes in the 
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financial position of the parent obligated to pay support, the 

needs of the children for whom support is paid, good or bad 

faith motive of the obligated parent in sustaining a reduction 

in income, and whether the change is temporary or permanent. 

Id. Under Neb. Rev. Stat. § 42-365 (Reissue 2016), an award of 

alimony may be modified or revoked if the moving party can 

show good cause. It is well established that a “material change 

in circumstances” in modification of child support cases is 

analogous to the “good cause” standard articulated for modification of alimony. Grahovac v. Grahovac, 12 Neb. App. 585, 

680 N.W.2d 616 (2004).

As the district court observed in its order, Mark’s termination from his position with Union Pacific was based upon 

his employer’s conclusion that he was improperly completing 

employee risk assessments as required by his position. The 

court found that Union Pacific “was correct in its conclusion” 

regarding Mark’s failure to properly complete these risk assessments. Neither party disputes the court’s findings on the facts 

of Mark’s termination from employment. Rather, the dispute 

centers on the underlying nature of the actions that caused 

Mark’s dismissal.

[7] In the context of child support and alimony modification, a complaint for modification will be denied if the change 

in the movant’s financial condition is due to fault or voluntary 

wastage or dissipation of one’s talents and assets. See Pope 

v. Pope, 251 Neb. 773, 559 N.W.2d 192 (1997). Nebraska 

appellate courts have addressed the issue of whether allegations of changed employment status and reduced income that 

stem from employment misconduct may serve as grounds for 

modification of child support and alimony obligations. In Pope 

v. Pope, 251 Neb. at 778, 559 N.W.2d at 196, the Nebraska 

Supreme Court found that the ex-husband’s loss of employment and reduction in income was the result of his “own bad 

act” of “fail[ing] to stay awake on the job.” The court reasoned 

that in the absence “of some justifiable reason” for his falling 

asleep at work, his loss of employment and reduced income 
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did not constitute good cause to justify the termination of his 

alimony obligation. Id.

Following Pope v. Pope, supra, this court has applied these 

principles in several circumstances. In Lambert v. Lambert, 9 

Neb. App. 661, 617 N.W.2d 645 (2000), the former husband 

failed multiple drug tests required by his employer and was 

thereafter terminated from his employment. He sought modification of his child support and alimony, and the trial court 

granted his motion and reduced his child support and alimony 

obligations. This court, relying on Pope v. Pope, supra, concluded that the district court abused its discretion in modifying the former husband’s support obligations because he “was 

essentially fired because he chose to use marijuana” and “did 

this knowing that it would put his livelihood in jeopardy and 

. . . affect his ability to meet his court-ordered financial obligations.” Lambert v. Lambert, 9 Neb. App. at 668, 617 N.W.2d 

at 650. Due to this fault, we found that his change in employment status and income could not be a material change in circumstances or good cause, and we reversed the decision of the 

district court.

Similarly, in Grahovac v. Grahovac, supra, the former husband resigned from his employment and incurred a reduction 

to his income as a result. He subsequently motioned the trial 

court to reduce his child support and alimony obligations based 

upon that reduction in his income, and the district court granted 

a reduction to both obligations. On appeal, this court found the 

circumstances to be similar to those in Lambert v. Lambert, 

supra, and determined that the record demonstrated his “resignation or ‘early retirement,’ which reduced his income, was 

due to . . . his alcoholism and his refusal to secure effective 

treatment.” Grahovac v. Grahovac, 12 Neb. App. 585, 590, 680 

N.W.2d 616, 622 (2004). This court concluded that because 

the ex-husband’s employment “ended because of his continued 

drinking” and “not from good cause,” he was not entitled to 

reductions of his support obligations on that basis. Id. at 591, 

680 N.W.2d at 622.
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In Murphy v. Murphy, 17 Neb. App. 279, 759 N.W.2d 710 

(2008), the former husband resigned from his employment as 

a deputy sheriff and subsequently requested modification of 

his child support and alimony obligations. The district court 

granted reductions to both support obligations based upon his 

reduced level of income. On appeal, this court found that the 

former husband’s resignation was due to several instances of 

misconduct that included, among other violations, coming to 

work late, not coming to work at all, damaging a cruiser, failing to report an accidental firearm discharge, and possessing 

canine training narcotics in his home. Based on this history 

of misconduct and the evidence that the former husband was 

given a choice to resign or be fired, we concluded that the 

district court abused its discretion in reducing the former husband’s support obligations because his resignation and reduced 

income were the direct results of his pattern of employment misconduct.

[8] 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). A judicial abuse of discretion requires 

that the reasons or rulings of the trial court be clearly untenable insofar as they unfairly deprive a litigant of a substantial 

right and a just result. Hotz v. Hotz, 301 Neb. 102, 917 N.W.2d 

467 (2018).

While we are mindful of the precedent that guides our 

review, we find the present case distinguishable from those 

we have previously described. The misconduct described in 

the prior cases entailed actions that were patent and obvious 

violations, often willfully engaged in, of each former husband’s respective rules of employment such that the former 

husbands understood these actions were employment violations that would result in discipline up to and including dismissal. As the district court also noted, this was not true in 

Mark’s case. Mark testified regarding his belief that he was 

completing the risk assessments correctly in accordance with 
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Cite as 30 Neb. App. 456

the requirements of his employment, and the record neither 

contradicts that belief nor indicates that Mark willfully caused 

his loss of employment with Union Pacific. Two Union Pacific 

employees who both had Mark as their foreman for approximately 10 years also testified favorably on Mark’s behalf, 

noting that Mark took the risk assessments seriously and also 

noting that Union Pacific no longer had the foreman position 

which Mark had previously held. Based on the record, we find 

Mark’s conduct distinguishable from that which the Nebraska 

Supreme Court and this court have previously held to preclude 

modification. Accordingly, we find that the district court did 

not abuse its discretion in concluding that Mark’s lost employment and reduced income demonstrated a material change in 

circumstances and good cause justifying the modification of 

his child support and alimony.

Unclean Hands

Lisa also claims that the district court abused its discretion 

in failing to deny Mark’s complaint for modification on the 

basis of his unclean hands. She argues that Mark “willfully and 

intentionally refused to pay child and spousal support, despite 

his clear ability to do so.” Brief for appellant at 14.

[9] As applicable to complaints for the modification of 

child support and alimony obligations, the Nebraska Supreme 

Court has stated that in cases in which a party owes past due 

alimony or child support, “the courts have generally held that 

the failure to pay must be found to be a willful failure in 

spite of an ability to pay before a request for modification of 

a decree may be dismissed on the basis of ‘unclean hands.’” 

Voichoskie v. Voichoskie, 215 Neb. 775, 777, 340 N.W.2d 442, 

444 (1983) (Voichoskie I). See, also, Marr v. Marr, 245 Neb. 

655, 515 N.W.2d 118 (1994); Voichoskie v. Voichoskie, 219 

Neb. 670, 365 N.W.2d 467 (1985) (Voichoskie II); Richardson 

v. Anderson, 8 Neb. App. 923, 604 N.W.2d 427 (2000).

In its order modifying the decree, the district court did not 

make an express finding as to whether the doctrine of unclean 

hands barred any modification of Mark’s support obligations. 
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HODGEN v. HODGEN

Cite as 30 Neb. App. 456

However, in its journal entry dated December 7, 2020, the 

court denied Lisa’s “Motion for New Trial” in which she 

claimed that the court failed to make a finding regarding her 

“allegation of ‘unclean hands’ when the evidence was undisputed that [Mark] had the ability to pay child support and 

spousal support, yet [he] intentionally elected not to pay support due.” Based on this journal entry, it is evident the district 

court concluded the doctrine of unclean hands did not bar the 

requested modification of Mark’s support obligations. In our de 

novo review, we cannot say the court abused its discretion in 

reaching that conclusion.

The payment history reports for Mark’s child support and 

alimony obligations indicate that prior to the termination of 

his employment with Union Pacific, Mark was generally consistent in paying both child support and alimony. While Mark 

occasionally fell behind on these obligations, the accumulated arrears during this period were generally not substantial. 

However, the payment history report for Mark’s alimony obligation indicates that after a payment of $931.41 on September 

15, 2019, Mark paid only $0.94 in alimony to Lisa through 

September 8, 2020. At that date, Mark’s alimony arrearage 

under the parties’ decree of dissolution totaled $12,190.06.

As for child support, Mark’s payments were sporadic after 

his termination of employment in September 2019. The record 

indicates that in the last third of 2019, Mark’s child support payments included $73.58 in September, $1,202.50 in 

November, and $500 in December. In 2020, he paid $942.55 in 

May, $1,405 in June, and $565.38 in August. By September 8, 

2020, Mark’s child support arrearage under the parties’ decree 

of dissolution totaled $8,791.84.

Lisa directs our attention to the Nebraska Supreme Court 

decisions in Voichoskie II, supra, and Marr v. Marr, supra, 

as analogous to the facts in the present case. In Voichoskie II, 

the Nebraska Supreme Court noted that the former husband, 

in addition to his poor history of child support payments 

which had frequently “been forcibly extracted from him by 
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withholding or garnishment proceedings,” had “often been 

content to live on unemployment and [had] not made a substantial effort to obtain employment at a salary equal to the one 

he received at the time of the divorce.” 219 Neb. at 672, 365 

N.W.2d at 469. In Marr v. Marr, the Supreme Court observed 

that the former husband had, from the beginning of 1989 until 

June 1991, made one child support payment of $200 in 1989 

“when his income was almost $20,000,” two payments totaling 

$315 in 1990 “when his income was $9,549,” and one payment 

of $175 “in the first 6 months of 1991 . . . when his salary was 

over $1,000 net per month.” 245 Neb. at 659-60, 515 N.W.2d 

at 121.

There is no dispute that Mark has not paid any meaningful 

amount toward his alimony obligation and made only sporadic 

payments of child support since September 2019. However, 

prior to his dismissal, Mark was consistently paying both of 

his support obligations, and we note that Mark made some 

payments of child support even when he had not yet found 

reemployment. Some of these payments were also close to 

the full amount of child support required by the parties’ 

decree. The record shows that Mark made consistent efforts 

to find employment after his dismissal from Union Pacific in 

September 2019, and it was not until April 2020 that he found 

success in his job search, albeit at a lesser income. Mark’s 

bank account records demonstrate that, from September 2019 

until September 2020, his end of month balance was at least 

$2,000 and trended upward to over $3,000 after Mark found 

reemployment, and his expenditures routinely included several nonessential items such as liquor and dining out. Mark 

also testified as to the uncertainty of his living situation 

despite his employment status, stating that he believed he 

could possibly need to move back in with his mother to make 

ends meet.

[10] In addition to the foregoing evidence in the record, we 

further observe that the Nebraska Supreme Court has stated 

that “[i]f the evidence shows that the petitioner is able to pay 
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the arrearage or is unable to pay through some intentional 

conduct on his part, the doctrine of [un]clean hands may be 

invoked to bar his claim for relief.” Voichoskie I, 215 Neb. at 

779, 340 N.W.2d at 445 (emphasis supplied). Equity is not a 

rigid concept, and its principles are not applied in a vacuum, 

but instead, equity is determined on a case-by-case basis when 

justice and fairness so require. Trieweiler v. Sears, 268 Neb. 

952, 689 N.W.2d 807 (2004). While we do not ignore the 

fact that Mark’s substantial arrearages accumulated due to his 

choice not to pay child support and alimony, we likewise cannot ignore the uncertain nature of his circumstances caused 

by his reduced level of income and his attempts to pay child 

support despite this uncertainty. In considering the record and 

the balance of equities in this case, we cannot say the district 

court abused its discretion in not barring Mark’s complaint for 

modification under the doctrine of unclean hands.

CONCLUSION

For the reasons set forth above, we affirm the district court’s 

modification of Mark’s child support and alimony.

Affirmed.