Werner v. Werner (Nebraska 2020)

No. A-19-872 (Neb. Ct. App. 2020)
August 2020

To modify a support order, a parent must show a material change in circumstances that occurred after the entry of the latest order and that wasn’t contemplated upon entry of the order. The Nebraska order at issue in this case involved a split custody arrangement. The older child lived with the father, and the younger child lived with the mother in Minnesota. The mother was ordered to pay support until the oldest child reached the age of majority. Then, support would stop. The parents agreed that father wouldn’t pay support for the younger child so as to accommodate for travel expenses for visitation. The mother filed to modify the order. As material changes of circumstance, she alleged changes to her financial situation and the father’s refused to help pay for the older son’s college. The father, who was moving to Minnesota, asked for a continuance to better address the issues in light of his move. The mother objected, and the trial court held a trial based on the pleadings. The final order found no material change of circumstances. The mother appealed. The appellate court affirmed the order. On appeal, the mother argued a substantial change of circumstance that she had not alleged in her appeal, the father’s move to Minnesota. The appellate court found the parents had not given consent to consider an issue not contained in the pleadings. The father had asked for a continuance that would have covered the issue but mother objected. The appellate court further found that the fact of a child leaving for college isn’t a material change of circumstances. The mother’s contributions to his education were voluntary and didn’t rise to a material change.