Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/31/2017 09:20 AM CDT




                                                          - 192 -
                                Nebraska Court of A ppeals A dvance Sheets
                                     25 Nebraska A ppellate R eports
                                                  ROBERTS v. ROBERTS
                                                  Cite as 25 Neb. App. 192




                                         K eith M. Roberts, appellant and
                                        cross-appellee, v.
                                                         Diana S. Roberts,
                                           appellee and cross-appellant.
                                                      ___ N.W.2d ___

                                          Filed October 24, 2017.   No. A-16-1104.

                1.	 Modification of Decree: Child Support: Appeal and Error.
                     Modification of a dissolution decree is a matter entrusted to the discre-
                     tion of the trial court, whose order is reviewed de novo on the record,
                     and which will be affirmed absent an abuse of discretion by the trial
                     court. The same standard applies to the modification of child support.
                2.	 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.
                3.	 Child Support. The primary concern in determining child support is
                     the best interests of the children.
                4.	 Child Support: Rules of the Supreme Court. The main principle
                     behind the Nebraska Child Support Guidelines is to recognize the equal
                     duty of both parents to contribute to the support of their children in pro-
                     portion to their respective incomes.
                 5.	 ____: ____. In general, child support payments should be set according
                     to the Nebraska Child Support Guidelines, which compute the presump-
                     tive share of each parent’s child support obligation.
                6.	 Actions: Equity: Child Support: Rules of the Supreme Court. The
                     Nebraska Supreme Court has favored a flexible approach to deter-
                     mining a parent’s income for child support proceedings because such
                     actions are, despite the Nebraska Child Support Guidelines, equitable
                     in nature.
                7.	 Child Support. While a court calculating child support is permitted
                     to add in-kind benefits derived from an employer to a party’s income,
                     inclusion of such benefits is not required.
                                    - 193 -
            Nebraska Court of A ppeals A dvance Sheets
                 25 Nebraska A ppellate R eports
                            ROBERTS v. ROBERTS
                            Cite as 25 Neb. App. 192

 8.	 Alimony: Child Support. Alimony is not an item of income in calculat-
     ing child support.
 9.	 Alimony: Child Support: Rules of the Supreme Court. The language
     in Neb. Ct. R. § 4-213 of the Nebraska Child Support Guidelines clearly
     provides that child support obligations are to be calculated prior to the
     calculation of alimony.
10.	 Child Support. The use of earning capacity in calculating child sup-
     port is useful when it appears that the parent is capable of earning more
     income than is presently being earned.
11.	 Modification of Decree: Child Support: Proof. A party can modify
     a prior child support order by showing that there has been a material
     change in circumstances since the entry of the court’s prior order.
12.	 Child Support: Rules of the Supreme Court. Generally, parties’ child
     support obligations should be set according to the provisions set forth in
     the Nebraska Child Support Guidelines.
13.	 ____: ____. A court may deviate from the Nebraska Child Support
     Guidelines, but only if it specifically finds that a deviation is warranted
     based on the evidence.
14.	 ____: ____. Without a clearly articulated justification, any deviation
     from the Nebraska Child Support Guidelines is an abuse of discretion.
15.	 Equity: Modification of Decree: Child Support: Time. Absent equi-
     ties to the contrary, the general rule is that the 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.
16.	 Child Custody: Time. A child and custodial parent should not be penal-
     ized, if it can be avoided, by the delay inherent in our legal system.
17.	 Modification of Decree: Time: Appeal and Error. The initial deter-
     mination 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.
18.	 Child Support: Time. There are circumstances to take into consider-
     ation wherein a noncustodial parent may not have the ability to pay
     retroactive support in addition to meeting current support obligations.
19.	 Divorce: Attorney Fees: Costs. Customarily in dissolution cases, attor-
     ney fees and costs are awarded only to prevailing parties or assessed
     against those who file frivolous suits.

  Appeal from the District Court for Douglas County: M arlon
A. Polk, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
                              - 194 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ROBERTS v. ROBERTS
                      Cite as 25 Neb. App. 192

  Donald A. Roberts and Justin A. Roberts, of Lustgarten &
Roberts, P.C., L.L.O., for appellant.
  Lindsay Belmont and Angela Dunne, of Koenig Dunne, P.C.,
L.L.O., for appellee.
  Inbody, Pirtle, and R iedmann, Judges.
  R iedmann, Judge.
                      I. INTRODUCTION
   Keith M. Roberts appeals from an order entered by the
district court for Douglas County that modified his child sup-
port obligation to Diana S. Roberts following the dissolution
of the parties’ marriage. Diana cross-appeals from the same
order. For the reasons that follow, we affirm in part and in part
reverse, and remand.
                      II. BACKGROUND
   Keith and Diana were married on April 6, 1991. They had
two children together, born in 2002 and 2005. A decree of dis-
solution was entered by the district court in August 2014. At the
time of the parties’ divorce, Keith was employed as the “resi-
dent agent in charge for Homeland Security Investigation” in
Omaha, Nebraska, and his total monthly income was $12,281.
Diana was unemployed, and the parties stipulated to an annual
earning capacity in the amount of $20,000, which resulted in
an imputed monthly income of $1,666.67.
   Under the terms of the dissolution decree, Keith was ordered
to pay $1,866 per month in child support for two minor chil-
dren and $1,311 per month when only one child remained a
minor. The decree also ordered Keith to pay $3,000 per month
in alimony to Diana for a period of 84 months.
   The parties were awarded joint legal custody of their chil-
dren, and Diana was awarded primary physical custody, with
Keith to have parenting time pursuant to the terms of the par-
ties’ parenting plan. The parenting plan provided that Keith
was to have custody of the children every Tuesday from 3 to
                              - 195 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ROBERTS v. ROBERTS
                      Cite as 25 Neb. App. 192

8 p.m. and on alternating weekends, commencing Friday after
school and concluding Sunday evening. The parenting plan
provided that during the summer, Keith was to have custody
each Tuesday afternoon through Thursday morning and alter-
nating weekends. Keith and Diana were both ordered to pay
“for their own clothing, utilities, food, travel expenses, and
living expenses for the minor children when they are in his or
her [custody].”
   Following entry of the dissolution decree, Keith retired from
his employment and began a new position as a personal serv­
ice contractor for the U.S. Department of State on or around
September 27, 2015. Subsequent to his retirement from federal
government employment, Keith made a claim for a portion of
his federal retirement benefit. Diana made a claim for a portion
of this benefit as Keith’s former spouse. Diana was to receive
a monthly payment of $2,999.72 out of Keith’s monthly gross
annuity of $8,743, from which the cost of her survivor benefit
was then deducted. Diana testified that she was to receive
a monthly payment of $2,337.52. Both parties were also to
receive a retroactive payment for annuity benefits prior to the
commencement of their monthly payments. Keith testified that
he received a lump-sum payment of approximately $8,000 and
Diana was to receive a payment of $9,116.33.
   Keith’s new position working with the Department of State
required him to relocate to Ankara, Turkey, which he did in
November 2015. Keith testified that he usually returns to the
United States at least twice per year while escorting foreign
dignitaries, although he does not get to choose when those
occasions occur. He stated that his trips to the United States
typically last “approximately a month.” Keith testified that he
has been able to visit his two children by taking vacation while
he was in the United States on business. For him to return to
the United States from Turkey to visit them, Keith estimated
that it would cost approximately $3,000 per week, and the
expenses related to activities with the children would be an
additional $1,000.
                              - 196 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ROBERTS v. ROBERTS
                      Cite as 25 Neb. App. 192

   As a personal service contractor, Keith has a current sal-
ary paid by the Department of State. His annual base salary is
$136,833. Keith testified that he also receives a cost-of-living
allowance (COLA) and post differential pay while living in
Turkey but not when he returns to the United States on travel.
Keith is eligible to receive “danger pay,” which would replace
his post differential pay. Although he testified that he had
received an email alerting him to the possibility of receiving
danger pay in the future due to changes in security, he had not
yet received any danger pay; nor did he know if or when it
would be implemented.
   In Turkey, Keith resides in an apartment that is rented
and paid for by “[t]he embassy.” Keith testified that he does
not receive a housing allowance or a living quarters allow-
ance and that he does not know how much his rent costs the
government.
   Diana filed her second amended complaint for modification
in January 2016, alleging that a material change in circum-
stances existed warranting a change in child support. In sup-
port of her motion, she stated that Keith had retired from his
federal government employment, begun receiving retirement
pay, and accepted a position in Turkey for which he received
income and that Keith’s gross monthly income had increased
such that, in applying the Nebraska Child Support Guidelines,
there was an increase in child support greater than 10 percent.
Diana alleged that while living abroad, Keith had not exer-
cised his parenting time, and that as a result, her expenses
for caring for the parties’ children had increased. Diana also
requested an award of attorney fees.
   Trial was held in May 2016. Diana testified at trial, and
Keith’s deposition was offered into evidence in lieu of live
testimony because he was out of the country. The district court
entered its order of modification in November 2016, find-
ing that a substantial and material change in circumstances
had occurred since entry of the dissolution decree due to “a
change in the parties’ incomes and [Keith’s] relocation to
                               - 197 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                       ROBERTS v. ROBERTS
                       Cite as 25 Neb. App. 192

Turkey that justifies an increase in [Keith’s] child support
obligation to [Diana].” The court adopted Keith’s proposed
calculations of child support, which resulted in a payment of
$1,935 per month for two children and $1,411 for one child.
The court then included an additional support worksheet pur-
suant to Neb. Ct. R. § 4-203(C) (rev. 2011) of the Nebraska
Child Support Guidelines for incomes greater than $15,000
monthly. Pursuant to those calculations, the court increased
Keith’s child support obligation to $2,022 per month for two
children and $1,498 for one child.
   The district court determined that an upward deviation from
the guidelines was “in the best interests of the minor children.”
Accordingly, the court ordered Keith to pay child support in
the amount of $2,500 per month for two children, which was
an upward deviation of $478, and $1,851 per month for one
child, which was an upward deviation of $353. The court
ordered that each party was to pay his or her own attorney fees.
Keith now appeals, and Diana cross-appeals.

               III. ASSIGNMENTS OF ERROR
   Keith assigns, restated, that the district court erred in grant-
ing Diana’s second amended complaint for modification of
child support. On cross-appeal, Diana assigns, restated, that
the district court abused its discretion in (1) adopting Keith’s
child support calculation and thereby erring in calculating the
parties’ respective incomes, (2) denying her request to retro-
actively modify the award, and (3) failing to award her attor-
ney fees.

                 IV. 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 which will be affirmed absent an abuse
of discretion by the trial court. Johnson v. Johnson, 290 Neb.
838, 862 N.W.2d 740 (2015). The same standard applies to the
modification of child support. Id.
                               - 198 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                       ROBERTS v. ROBERTS
                       Cite as 25 Neb. App. 192

   [2] 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).

                         V. ANALYSIS
              1. Calculation of Parties’ Incomes
   Diana argues that the district court abused its discretion
in adopting Keith’s proposed child support calculations and
thereby erred in calculating each party’s respective income.
She claims that the district court did not include all of Keith’s
sources of income and improperly attributed income to her that
should not be considered for purposes of child support.

                       (a) Keith’s Income
   Diana claims that the district court erred in not including
all of Keith’s sources of income. Specifically, she alleges that
the court should have included Keith’s housing allowance as
well as his danger pay in the place of Keith’s post differen-
tial pay.
   [3-5] The primary concern in determining child support is
the best interests of the children. See Gangwish v. Gangwish,
267 Neb. 901, 678 N.W.2d 503 (2004). The main principle
behind the Nebraska Child Support Guidelines is to rec-
ognize the equal duty of both parents to contribute to the
support of their children in proportion to their respective
incomes. Gangwish v. Gangwish, supra. In general, child
support payments should be set according to the Nebraska
Child Support Guidelines, which compute the presumptive
share of each parent’s child support obligation. Gangwish v.
Gangwish, supra.
   [6,7] Pursuant to Neb. Ct. R. § 4-204 (rev. 2015) of the
Nebraska Child Support Guidelines, a court is to consider
the total monthly income of both parties, which is defined as
“income of both parties derived from all sources, except all
                              - 199 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ROBERTS v. ROBERTS
                      Cite as 25 Neb. App. 192

means-tested public assistance benefits which includes any
earned income tax credit and payments received for children
of prior marriages.” The Nebraska Supreme Court has favored
a flexible approach to determining a parent’s income for child
support proceedings because such actions are, despite the
guidelines, equitable in nature. Gangwish v. Gangwish, supra.
While a court is permitted to add “‘in-kind’” benefits derived
from an employer to a party’s income, inclusion of such ben-
efits is not required. Id. at 911, 678 N.W.2d at 514.
   Here, Diana argues that Keith’s income should have included
an annual housing allowance of $28,400. Diana derived this
number from the Department of State’s website that lists
housing allowances for various locations, including Ankara.
According to those listings, the housing allowance for employ-
ees living without family in Ankara is $28,400 per year. Diana
argues that because Keith is not required to pay his own rent
and in-kind benefits may be included as income, the district
court abused its discretion in failing to attribute this amount
to Keith.
   However, Keith testified that he does not personally receive
a housing allowance and that “the embassy rents my apartment
and pays for it.” He stated that he does not know what the
actual cost of his apartment is to the government. Keith testi-
fied that he is not familiar with the listings from which Diana
arrived at the amount of $28,400 per year. Furthermore, while
in-kind benefits such as a housing allowance are permitted to
be considered in the determination of income, their inclusion is
not required; whether or not to include such benefits is left to
the discretion of the trial court. Given this discretion, Keith’s
testimony that he does not receive a housing allowance, and
the lack of evidence as to the value of Keith’s housing, we
find that the district court did not err in excluding the housing
allowance as part of Keith’s income.
   Next, Diana claims that the district court should have
included danger pay in its determination of Keith’s income
in the place of post differential pay. She argues that Keith
                              - 200 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ROBERTS v. ROBERTS
                      Cite as 25 Neb. App. 192

received an email on the day of his deposition regarding events
in southern Turkey that increased the danger of living in the
country and triggered additional danger pay in the amount of
$1,710 per month. Diana asserts that the district court erred in
not including this amount as part of Keith’s income.
   While Keith did testify to the receipt of an email alerting
him to the possibility of receiving danger pay in the future, as
of the date of his deposition he had not received any danger
pay and did not know if or when danger pay would be imple-
mented in the future. Keith testified that he had no control
over whether danger pay was granted. We find no evidence
in the record that Keith did in fact receive danger pay at any
point. Instead, the record supports the fact that Keith received
post differential pay, which was properly included in the
calculation of his income. Therefore, we find no error in the
district court’s exclusion of danger pay in the determination of
Keith’s income.
   Diana also argues that the district court erred in its calcu-
lations determining Keith’s retirement annuity and COLA.
She claims that the amount of monthly income attributed to
Keith’s retirement annuity should be $6,405 rather than $5,744
and that Keith’s COLA should be $352 rather than $293.
We disagree.
   Diana claims that Keith’s retirement annuity should have
been calculated as $6,405 per month. She arrives at this num-
ber by subtracting the amount that she receives from the annu-
ity—$2,337.85—from Keith’s total monthly annuity, which is
$8,743. However, as stated in the letters from the U.S. Office of
Personnel Management, the total amount of the monthly pay-
ment to Diana from the annuity is $2,999.72. Diana receives
less than that full amount because her portion of her survi-
vor benefit is withheld, resulting in a net payment to her of
$2,337.85. Subtracting the full amount taken out of Keith’s
annuity on behalf of Diana results in a net amount of $5,744
that Keith receives each month. This is the same amount used
by the district court. We find no error in this calculation.
                              - 201 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ROBERTS v. ROBERTS
                      Cite as 25 Neb. App. 192

   Diana also claims that the district court should have attrib-
uted Keith’s monthly income from his COLA as $352, rather
than $293. She argues that this amount should be attributed to
all 12 months of the year because Keith’s return to the United
States for 2 months each year (for which he does not receive
COLA) is speculative.
   Keith testified that he receives his COLA only when he is in
Turkey. He testified that he usually returns to the United States
at least twice a year while escorting foreign dignitaries and
that his trips have typically lasted approximately 1 month each.
During those periods, he receives no COLA. The district court
relied on this testimony in finding that Keith receives COLA
pay for 10 months of the year at the rate of $352 per month.
Dividing that amount evenly across the 12 months in a year,
the court reached the amount of $293 per month in COLA pay.
We find no error in this calculation. The district court relied
upon Keith’s testimony that he typically returns to the United
States for a total of approximately 2 months each year, during
which he does not receive his COLA. The court then appropri-
ately divided the COLA that he does receive evenly to reach
the amount of $293 per month. Accordingly, we find no error
in the district court’s calculation of Keith’s income.

                       (b) Diana’s Income
   Diana argues that the district court erred in calculating her
total monthly income. She claims that her income should not
have included her alimony or earning capacity and should
have consisted solely of the amount she receives from Keith’s
retirement annuity. For the reasons that follow, we agree that
the district court erred by including alimony when calculating
Diana’s income.
   [8,9] In the original decree, Diana was awarded monthly
alimony of $3,000 for 84 months. The district court included
this amount in its calculation of Diana’s total monthly income.
However, alimony is not an item of income in calculating
child support. See Gallner v. Hoffman, 264 Neb. 995, 653
                              - 202 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ROBERTS v. ROBERTS
                      Cite as 25 Neb. App. 192

N.W.2d 838 (2002). Neb. Ct. R. § 4-213 of the Nebraska Child
Support Guidelines states that the “guidelines intend that
spousal support be determined from income available to the
parties after child support has been established.” (Emphasis
supplied.) In Gallner v. Hoffman, the court stated that this
language provided clearly that “child support obligations are
to be calculated prior to the calculation of alimony.” 264
Neb. at 1003, 653 N.W.2d at 845. It logically follows that
if child support is calculated before alimony, such alimony
should be excluded when calculating income in a modifica-
tion proceeding.
   Accordingly, we find that the district court erred as a matter
of law by including alimony in its calculation of Diana’s total
monthly income and that Diana’s monthly income should be
reduced by $3,000.
   Diana also claims that the district court abused its discre-
tion by including her earning capacity in the calculation of
her income. She argues that because Keith retired subsequent
to the entry of the dissolution decree and she now receives a
portion of his retirement annuity, that amount should replace
her imputed earning capacity of $1,666 per month. Diana
asserts that it is unjust to add her earning capacity on top of
the amount that she is actually receiving as income through
the annuity.
   [10] Section 4-204 of the Nebraska Child Support Guidelines
states that “earning capacity may be considered in lieu of a
parent’s actual, present income and may include factors such
as work history, education, occupational skills, and job oppor-
tunities.” The Nebraska Supreme Court has held that the use of
earning capacity in calculating child support is useful when it
appears that the parent is capable of earning more income than
is presently being earned. Freeman v. Groskopf, 286 Neb. 713,
838 N.W.2d 300 (2013).
   In the parties’ dissolution decree, they stipulated to an
earning capacity of $20,000 per year for Diana, which results
in $1,666 per month. In the modification action, the district
                               - 203 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                       ROBERTS v. ROBERTS
                       Cite as 25 Neb. App. 192

court adopted the same figure as Diana’s imputed earn-
ing capacity.
   Diana testified that at the time of trial, she was 53 years old
and had no physical barriers to obtaining employment. She
was last employed in 1992, and she had received an associ-
ate’s degree in fashion merchandising. Diana testified that she
assumed she could presently earn minimum wage based on
her extended time out of the workforce and that she had not
actively pursued employment following entry of the dissolu-
tion decree.
   We find nothing in the record to suggest that Diana’s earn-
ing capacity has changed in any way since she and Keith
divorced. While Diana is correct that Keith has since retired
from the position he held at the time, we find nothing to indi-
cate that she is incapable of earning an income. Therefore,
we find no abuse of discretion in the district court’s inclu-
sion of her imputed earning capacity in the calculation of
her income.
   Because the court erroneously included alimony when cal-
culating Diana’s income, we reverse the district court’s order
and remand the cause for recalculation of child support to
exclude Diana’s monthly alimony.
                          2. Deviation
   Keith argues that the district court erred in granting Diana’s
second amended complaint for modification of child support.
He claims that there was not sufficient evidence presented to
deviate upward from the amounts set forth in the child sup-
port guidelines and that the court did not specify its reasons
or set forth its calculations to justify its upward deviation.
Furthermore, Keith argues that it was error to impose an
upward deviation based upon Diana’s speculative evidence of
increased expenses caused by his failure to exercise his parent-
ing time. For the reasons that follow, we agree that the district
court failed to sufficiently state its reasons in granting the
upward deviation.
                               - 204 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                       ROBERTS v. ROBERTS
                       Cite as 25 Neb. App. 192

   [11-14] A party can modify a prior child support order by
showing that there has been a material change in circumstances
since the entry of the court’s prior order. Gress v. Gress, 274
Neb. 686, 743 N.W.2d 67 (2007). Generally, parties’ child sup-
port obligations should be set according to the provisions set
forth in the Nebraska Child Support Guidelines. Gress v. Gress,
supra. A court may deviate from the guidelines, but only if it
specifically finds that a deviation is warranted based on the
evidence. Gress v. Gress, supra. Without a clearly articulated
justification, any deviation from the guidelines is an abuse of
discretion. Gress v. Gress, supra.
   Section 4-203 of the Nebraska Child Support Guidelines
articulates the instances in which deviations are permitted.
Relevant here are § 4-203(C) and (E), which provide, respec-
tively, that deviations are permissible when the total net
income exceeds $15,000 monthly and that they are permissible
when application of the guidelines in an individual case would
be unjust or inappropriate. Section 4-203 of the guidelines
further states that “[i]n the event of a deviation, the reason for
the deviation shall be contained in the findings portion of the
decree or order, or worksheet 5 should be completed by the
court and filed in the court file.”
   Here, the district court adopted Keith’s child support calcu-
lations, which resulted in a payment by Keith of $1,935 per
month for two children. As part of those calculations, the dis-
trict court found that the parties’ combined monthly net income
was $16,275.63. The court then attached an additional work-
sheet to its order, pursuant to § 4-203(C) of the guidelines, for
incomes over $15,000 monthly. Pursuant to those calculations,
the court raised Keith’s child support contribution from $1,935
to $2,022 per month. However, the court ultimately ordered
Keith to pay $2,500 per month for two children, which it stated
constituted an upward deviation of $478.
   In its order, the district court stated that it found that an
upward deviation was in the children’s best interests, but it
did not specifically explain its reasoning for such a finding.
                               - 205 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                       ROBERTS v. ROBERTS
                       Cite as 25 Neb. App. 192

In finding that a substantial and material change in circum-
stances existed, the court referenced the change in the parties’
incomes and Keith’s relocation to Turkey as justification for
an increase in his child support obligation, but the court did
not explain its reasoning in finding that an upward deviation
beyond what was provided for under the guidelines was nec-
essary. Furthermore, the court did not attach worksheet 5, the
deviations worksheet, to its order.
   In adopting Keith’s child support calculations, the district
court included Diana’s alimony as part of her income. Using
this figure, the court found that the parties’ combined monthly
net income was $16,275.63. However, as discussed above, the
inclusion of alimony was in error, and Diana’s total income
should be reduced by $3,000. Using the correct amount for
Diana’s income leads to a combined monthly net income of
$13,275.63, which is less than the $15,000 net income for
which § 4-203(C) permits a deviation. Because we find that
the parties’ monthly net income is not greater than $15,000,
we find that the district court’s increase of Keith’s child sup-
port under the additional § 4-203(C) worksheet was an abuse
of discretion.
   Furthermore, the district court did not clearly articulate its
reasoning for the additional upward deviation of $478. The
order simply stated that the court found such a deviation was
in the children’s best interests. The court did not specifically
explain why it found that an upward deviation was justified;
nor did it set forth its reasoning for granting the deviation in
the amount that it did. Pursuant to § 4-203 of the guidelines, a
court must either state its reason for the deviation in its find-
ings or complete and file worksheet 5. Here, the district court
did neither. Therefore, we find that the district court abused
its discretion in granting the deviation. We reverse the district
court’s order establishing the parties’ child support obligations
and remand the cause for recalculation. If, after calculat-
ing the parties’ child support obligations using the corrected
income, the district court finds that a deviation is justified, it
                               - 206 -
          Nebraska Court of A ppeals A dvance Sheets
               25 Nebraska A ppellate R eports
                       ROBERTS v. ROBERTS
                       Cite as 25 Neb. App. 192

shall specifically state its reason for such a finding in its order
or complete and file worksheet 5.

                3. R etroactivity of Modification
   Diana argues that the district court abused its discretion
in denying her request to retroactively modify the change in
Keith’s child support obligation. She claims that because she
filed her initial complaint seeking to modify the dissolution
decree on August 31, 2015, the modification should have been
ordered retroactive to September 1, which was the first day
of the month following the filing of her application. Diana
asserts that denying such a retroactive award has the effect of
penalizing her and the children for the length of time that was
required to resolve the matter. She further argues that there was
no evidence that such retroactive application would unduly cre-
ate financial hardship for Keith. We agree.
   [15-18] The Nebraska Supreme Court has held that absent
equities to the contrary, the general rule is that the modifica-
tion 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. Riggs v. Riggs, 261 Neb. 344,
622 N.W.2d 861 (2001). The child and custodial parent should
not be penalized, if it can be avoided, by the delay inherent in
our legal system. Id. 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. However, there are circum-
stances to take into consideration wherein the noncustodial
parent may not have the ability to pay retroactive support in
addition to meeting current support obligations. See id.
   In this case, Diana filed her initial application seeking
modification on August 31, 2015, and the order of modification
was entered more than 1 year later, on November 15, 2016.
In the order of modification, the district court denied Diana’s
request to retroactively modify the award. However, the court
did not state any reason for its denial. Furthermore, we note
                              - 207 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ROBERTS v. ROBERTS
                      Cite as 25 Neb. App. 192

that the record indicates that a retroactive award would not
create financial hardship for Keith. In particular, we note his
testimony that he received a lump-sum payment of approxi-
mately $8,000 from his retirement annuity. Given the rule set
out in Riggs v. Riggs, 261 Neb. at 356, 622 N.W.2d at 870, and
the apparent absence of any “equities to the contrary” in the
record, we find that the district court abused its discretion in
denying Diana’s request to order the child support modification
retroactive to September 1, 2015.

                       4. Attorney Fees
   Diana claims that the district court abused its discretion
in denying her request for attorney fees. She argues that the
record shows that Keith is a high-wage earner and has the abil-
ity to pay both his attorney fees and hers. Diana claims that
she has incurred over $20,000 in attorney fees litigating this
modification action and does not have the ability to pay those
fees. She also argues that Keith took actions that contributed
to her high legal expenses, such as failing to timely respond to
discovery requests and filing an action related to custody that
he later dismissed. Therefore, Diana asserts that an award of
attorney fees is appropriate. We disagree.
   [19] Customarily in dissolution cases, attorney fees and
costs are awarded only to prevailing parties or assessed against
those who file frivolous suits. Noonan v. Noonan, 261 Neb.
552, 624 N.W.2d 314 (2001). In an action for modification
of a dissolution decree, the award of attorney fees is left to
the discretion of the trial court and, on appeal, is reviewed
de novo on the record and will be affirmed absent an abuse
of discretion. Garza v. Garza, 288 Neb. 213, 846 N.W.2d
626 (2014).
   In this case, we note that Diana did prevail in obtaining
an increase in child support in the trial court. However, the
trial court did not award Diana attorney fees and ordered
both parties to pay their own legal expenses. Furthermore, the
fact that Keith may be considered a high-wage earner does
                              - 208 -
         Nebraska Court of A ppeals A dvance Sheets
              25 Nebraska A ppellate R eports
                      ROBERTS v. ROBERTS
                      Cite as 25 Neb. App. 192

not in and of itself justify ordering him to pay both parties’
legal expenses. Therefore, we find that the district court did
not abuse its discretion in denying Diana’s request for attor-
ney fees.
                      VI. CONCLUSION
   Based on our review of the record, we find that the district
court erred in including alimony in its calculation of Diana’s
income and that the court abused its discretion in granting an
upward deviation from the child support guidelines without
explanation and in failing to order retroactive modified sup-
port. We find no abuse of discretion in the court’s denial of
attorney fees. Therefore, we affirm in part and in part reverse,
and remand the cause for further proceedings consistent with
this opinion.
	A ffirmed in part, and in part reversed and
	                remanded for further proceedings.
