                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        EWING V. EVANS


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                    SUSAN EWING, APPELLEE,
                                                V.

                                   JOSEPH EVANS, APPELLANT.


                               Filed May 7, 2019.    No. A-18-083.


       Appeal from the District Court for Lancaster County: LORI A. MARET, Judge. Reversed
and remanded with directions.
       Kevin Ruser and Ryan P. Sullivan, of University of Nebraska Civil Clinical Law Program,
and Sidney Huss, Allison Derr, Liz Flynn, Nicholas McGrath, and James Hannon, Senior Certified
Law Students.
       DeAnn C. Stover for appellee.


       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       MOORE, Chief Judge.
                                       INTRODUCTION
       Joseph Evans appeals from the order of the district court for Lancaster County, which
denied his complaint for modification of child support. For the reasons that follow, we reverse and
remand with directions.
                                        BACKGROUND
        Joseph and Susan Ewing are the parents of a son born in May 2013. Susan’s relationship
with Joseph ended in February 2014. Joseph also has an older daughter with another woman.
Joseph married a third woman in February 2016, and they remained married at the time of trial in
this case.



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        At some point, Susan filed a paternity action against Joseph, seeking custody of their son
and child support. A copy of that complaint is not included in our record.
        On January 23, 2015, prior to the resolution of Susan’s complaint, Joseph suffered injuries
in a motor vehicle accident while working for the Nebraska Army National Guard. Specifically,
Joseph suffered a traumatic brain injury with bleeding on the brain, several facial lacerations, and
loss of feeling on one side of his face. He also had a bruised chest cavity, burst compression
fracture in his spine at the L2 level, and nerve damage in his hip/leg area, as well as the onset of
post-traumatic stress disorder (PTSD), and he was diagnosed with an anxiety disorder.
        On March 26, 2015, the district court entered an order, ruling on Susan’s complaint. The
court adopted the parties’ joint stipulation. A copy of the stipulation has not been included in our
record on appeal. The court found that Susan was the natural mother and Joseph the natural father
of the parties’ son, awarded legal and physical custody of the child to Susan, and ordered Joseph
to pay child support in the amount of $557 per month beginning April 1, 2015. The attached child
support worksheet attributed total monthly income of $2,367 to Susan and $4,400 to Joseph, and
Joseph’s exemptions included $519 in child support previously ordered for other children. The
court also ordered Joseph to pay 50 percent of employment-related childcare expenses incurred
for his child with Susan. Joseph was to provide medical insurance for the child if available, with
Susan paying the first $480 per calendar year of unreimbursed expenses and the parties each paying
one-half thereafter. If medical insurance was not available through Joseph’s employment or if it
was cheaper to insure the child through Susan’s employment, the parties were to split the cost to
insure their son and all unreimbursed medical expenses.
        On February 26, 2016, Joseph filed a complaint for modification, seeking to modify his
child support, medical expense, and childcare obligations with respect to his son with Susan.
        Trial on Joseph’s complaint was held before the district court on August 25, 2017. The
court heard testimony from Joseph, his wife, his friend, Susan, and his daughter’s mother, and
received various exhibits, including the deposition testimony of Joseph’s doctor and Joseph’s
proposed child support worksheets.
        Prior to the 2015 accident, Joseph was employed by the Nebraska Army National Guard
as an Active Guard Reserve soldier, specifically, he was “the automation [noncommissioned
officer] for the State of Nebraska for the joint force headquarters division of recruiting and
retention.” He testified that it was a physically demanding job due to military requirements that he
meet certain standards for physical tasks such as pushups, sit-ups, running, and lifting. Joseph was
in charge of other soldiers and his job required certification “to run secure systems for the
military.” His annual salary as of March 26, 2015, was approximately $30,000. Joseph returned to
work for a few days following his accident, but he was thereafter placed on convalescent leave,
during which time he continued to receive his salary. He was officially discharged from the
National Guard in March 2016. With respect to his discharge, Joseph testified that a medical board
found him unfit to continue to be a soldier.
        Joseph was not employed at the time of trial, testifying that he was unable to find
employment due to the injuries he suffered from the 2015 accident. After his accident, Joseph had
part-time employment as a pizza driver in the summer of 2015. Joseph “threw [his] back out on a
particularly difficult night” while working there and was unable to work for 3 days due to pain,



                                               -2-
after which the pizza establishment terminated his employment according to company policy.
After that, Joseph tried working with the vocational rehabilitation office during the summer of
2015 to find a job that would be able to accommodate his restrictions, but he testified that “they
weren’t able to really find anything” for him. He indicated that he did apply for jobs recommended
by the office, specifically jobs with an “IT firm that does secure banking,” a telemarketing
company, and a job with a public school because he “was certified for secure communications,”
but that “[n]o one was really willing to give [him] a shot.” He also vaguely remembered applying
for a job with a property management company, which was unwilling to accommodate him. Joseph
did not apply for any other jobs.
         Joseph testified about his current symptoms from the injuries he sustained in the accident.
According to Joseph, he has chronic back and hip pain; nerve damage in his left leg, running all
the way down to his foot; and some problems with hearing, tinnitus, bright lights, attention deficit,
and memory, relating to the traumatic brain injury. He indicated that he experiences these
symptoms “[a]ll the time.” Joseph testified that his physical restrictions stemming from his
injuries, provided by his doctors, were that he was not supposed to sit too long, walk too far, bend,
crouch, kneel, work on a ladder, work overhead, or work bending over. He stated that if he sits or
stands for an extended period, he experiences painful back spasms, which he described as “a
throbbing, aching pain that starts in [his] lower back” that also runs down through his pelvic area
to his leg. He indicated that he can sit or stand anywhere from 10 to 30 minutes before experiencing
these pain symptoms and that he might be able to tolerate the pain for 30 minutes to an hour before
he needs to take a break. He indicated that if he pushes his limits too far he “go[es] into a pain
cycle,” which basically immobilizes him for a “long time.” We note that at one point during direct
examination by his attorney, Joseph obtained permission from the district court to stand for the
remainder of his questioning.
         Joseph has received various treatments since the accident to address his injuries. At the
time of trial, he was still doing aqua therapy, had just completed a round of physical therapy, and
he continued to take various prescribed pain medications. He has received “cortical [sic]
injections” in his spine, the most recent being in June prior to trial.
         As a result of his traumatic brain injury, Joseph underwent speech therapy, has learned
strategies to deal with memory issues, and has gone to counseling. Joseph indicated that his
memory had improved a little bit since the accident, but he testified that he continued to experience
weekly PTSD attacks, which could be triggered by things such as traffic sounds, and daily anxiety
attacks, which might be triggered by “[h]igh intensity moments like [testifying at trial].” Joseph
was still in counseling for his PTSD and anxiety, and he indicated that he planned to get tinnitus
cancelling hearing aids to help him hear better. He also indicated that one of the medications he
takes for back spasms helps a little with anxiety.
         To address continued issues with memory and focus, Joseph writes everything down and
uses a planner, but he testified that “it’s a daily struggle.” He indicated that the memory issues are
with his short-term memory due to attention deficit, but that he is able to remember certain things
better through repetition.
         Joseph denied having issues with memory, anxiety, or PTSD prior to the accident, but he
admitted that he previously hurt his back at one point.



                                                -3-
         Joseph testified about how he addresses his physical limitations in interacting with his
children. According to Joseph, he is not as active a father as he used to be, and he is not able to do
a lot of the things with his children that he would like to do. He occasionally breaks his restrictions
to lift his son if necessary to address behavioral issues, but he tries not to lift him too much. If he
breaks his lifting restrictions, he usually has to spend time reclining on the couch with a heating
pad or “portable TENS unit,” although he will usually try to “tough it through a weekend” with
his children. Joseph admitted that he has participated in various activities with his children that
lasted longer than 20 or 30 minutes and that he went camping the summer before trial. However,
he testified that he is able to alternate between sitting and standing and sometimes uses a special
chair during these activities and that while camping he slept on a “double thick air mattress.” He
indicated that he does experience pain while taking his children to various activities.
         Joseph has received “VA disability benefits” since the time of his discharge from the
National Guard, which were about $1,200 per month at the time of trial. Joseph was not receiving
any Social Security benefits at the time of trial as his “initial claim” was denied. With respect to
his medical expenses, Joseph testified that the military was “picking up a large portion,” that his
wife’s insurance picked up some of it, and that he paid the rest out of his disability benefits. Joseph
testified that he had “[a] lot” of outstanding medical bills at the time of trial, some of which had
been turned over to collection agencies. In addition to medical expenses, Joseph contributes to the
gas bill, and he pays for his car, his phone, and insurance for his son. He does not have a rent or
mortgage payment or a cable bill.
         At the time of trial, Joseph was attending college, “trying to educate [himself] out of the
situation” presented by his injuries. He was majoring in psychology and paying for college
“through vocational rehab through the VA.” Joseph takes two classes per quarter, despite his
physicians’ advice to take only one class, and had taken about six total classes at the time of trial.
He receives accommodations in the form of double the amount of time to take tests and is able to
take tests at a testing center, instead of in class, and during classes he can stand up and move
around as necessary. He plans to pursue a career in family or early childhood development
counseling. He has spoken with various employers about accommodations for his restrictions upon
graduation, which he anticipated would occur in 2018, and he has found at least one potential
employer willing to accommodate him.
         Joseph testified that he intends to return to work upon graduation and that he wants to
support his children. He indicated that whenever he has received “a sizeable amount of money
from the military,” such as when he was discharged, or when he receives funds such as an income
tax refund, he uses that money to pay toward his children’s expenses, including back child support.
Joseph testified that he was paying Susan and the mother of his daughter each $100 per month
toward his obligations. At the time of trial, his child support arrearage to Susan was $5,778.16 and
he owed $11,290.57 in childcare for his son; he was delinquent in child support payments owed to
his daughter’s mother as well.
         Joseph submitted two proposed child support worksheets, calculating his support based on
a total monthly income for him of $1,064.67 and for Susan of $4,359.33. He testified that the
income figure he used for himself fairly and accurately represented his current income and earning
ability. He testified that he used the same income for Susan as the original support order, however,



                                                 -4-
we note that the March 2015 child support order showed Susan’s income as $2,367. These
worksheets included deductions for child support for his older daughter in the amounts of $596
and $82, respectively, depending on whether he would be able to modify his support obligation
for his daughter. He calculated his monthly support obligation in this case at $83 in the event his
support obligation for his daughter is reduced, but $50 if it is not. In closing arguments at trial,
Joseph’s attorney referenced the fact that a modification action relating to support for his daughter
had also been filed, but our record in this case does not contain any further information about the
status or resolution of that case.
        Joseph presented testimony from his wife and a friend that was consistent with his own
testimony about his symptoms, restrictions, and activity levels since the accident.
        In her testimony, Susan was asked about her observations of Joseph’s physical abilities
when he picked up their son. She indicated that 90 percent of the time she did not observe this
interaction as Joseph would pick the child up from daycare while Susan was at work. On other
occasions, her observations were limited because Joseph simply met the child at the door and they
would “walk off and get in the car.” She felt, however, from her observations that Joseph would
be able “at least [to] hold some sort of a job.” Susan testified that she had been on outings with
him and their son after the accident where he had walked a considerable distance without appearing
to be in pain or complaining of pain or any problems. She also testified to having observed Joseph
regularly lying on the couch with a heating pad prior to the accident because “his back hurt” and
he “said he had a slipped disk.” According to Susan, despite this preaccident back pain, Joseph
continued to work. She testified that getting child support and childcare payments from Joseph has
been “an ongoing problem.”
        The mother of Joseph’s daughter testified that she had previously seen some of the medical
reports about Joseph’s condition and that “from her understanding” those reports “kind of
contradict[ed]” her observations of his interactions with their daughter. She also believed that
Joseph “could do some type of work.”
        The deposition of Dr. Donald E. Burge, one of Joseph’s primary care providers, was taken
on August 17, 2017. Joseph has treated with both Burge and a physician’s assistant in the same
office since before the 2015 accident. The only time Burge saw Joseph himself following the
accident was on May 1, 2017; other postaccident appointments were with the physician’s assistant.
Burge testified that he did not believe Joseph was able to work from the time of the 2015 accident
until May 1, 2017, but he declined to opine on Joseph’s status as of the time of the deposition
because he was “not quite sure where things stand right at this very moment.” Burge felt that as of
May 1, however, Joseph’s “low back pain, leg pain, paresthesias, traumatic brain injury, and
[PTSD]” made it impossible for him to work at a sedentary job “[b]ecause he was in too much
pain and discomfort and not being able to think clearly.” He believed that Joseph’s limitations as
of May 1 were not permanent and that they could be “improved,” which he hoped could be
accomplished through further treatment.
        Burge confirmed that since the accident, Joseph has received multiple forms of treatment,
including physical and aquatic therapies; orthopedic, neurosurgery, and anesthesia appointments;
and vocational rehabilitation. When asked whether any of this treatment had “been successful” for
Joseph, Burge responded, “Not very -- well, I guess, neurophych. He’s done better, so I think the



                                                -5-
brain injury is probably dramatically improved, if not resolved. [PTSD] is there. He’s still having
back pain.” Burge testified that at the time of his last appointment with Joseph on May 1, Joseph’s
subjective symptoms were of back pain, leg pain, burning in his foot, anxiety, and PTSD
symptoms, which Burge testified were typical for individuals with Joseph’s diagnoses. He
indicated that Joseph’s current diagnoses were low back pain, leg pain, and PTSD, but he stated
that the diagnosis process was ongoing. According to Burge, Joseph’s most recent appointment
with the physician’s assistant in Burge’s office had been on August 2 for a followup with regard
to his back injury. Burge testified that following that appointment, the plan was to continue in
physical therapy and for further treatment by a neurosurgeon and a pain anesthesiologist, as well
as continued vocational rehabilitation.
         Joseph participated in a functional capacity evaluation (FCE) in April 2017. According to
the report, Joseph exerted maximum effort in the testing and the results were considered valid. The
FCE determined a number of physical limitations, including limitations with respect to walking,
lifting and carrying, bending, standing, kneeling, climbing, and overhead work. Specifically, for
work 8 hours a day, 5 days a week, the FCE reported the following limitations:
                 Lifting from the floor was modified up to 18″ as [Joseph] lacks the lumbar range
         of motion, decreased bilateral hip strength, and reported LBP to be able to get into the full
         squat position.
                 Able to lift up to the Light physical demand level.
                 Significant limitation in walking due to gait deviation from reported lower back
         pain, decreased trunk control, and decreased hip strength.
                 Can carry 0 - 25 lbs. on a rare basis. Unable to carry more frequently due to the
         walking limitation of rarely.
                 Unable to assume a crouch position due to limited lumbar ROM, decreased bilateral
         hip strength, and report LBP.
                 Limited in sitting to an occasional basis.
                 Significant limitation in performing forward bending[,] standing, kneeling, stairs,
         and ladder due to decreased hip strength, core control, and reported LBP.
                 Limitation in performing elevated work due to limited lumbar range of motion,
         decreased core strength, and reported LBP. Unable to perform more than occasionally due
         to limitation in performing standing work.
                 Limitation in performing standing work on an occasional basis due to reported
         increasing LBP and decreasing quality of gait and posture.

        During Burge’s deposition, he testified that the limitations listed in the FCE report
accurately reflected Joseph’s limitations as of the testing date, but he stated that he did not know
whether the FCE “still reflect[s] [Joseph’s] current ability.” He observed, however, that the last
treatment note from the physician’s assistant recommended that Joseph not participate in activities
that exacerbate his back pain and that, consistent with the FCE, he avoid lifting, bending, standing,
and walking or sitting for extended periods.
        In June 2017, Joseph completed a neurological reexamination, which tested things such as
cognitive functioning, processing, depression, and other factors that affect quality of life.



                                                -6-
According to the report, Joseph asserted maximum effort in this testing and the results were
considered valid. Burge was asked about this testing during his deposition, and he testified that the
testing results accurately described Joseph’s psychological limitations as of June 5. Burge was
asked whether the psychological limitations reflected in the report could be attributed to the 2015
accident. He responded, “I would say some of ’em probably are. I can’t tell you how many, but
. . . it does say he has [PTSD], and that’s from the accident. You know, I think he has some mild
anxiety and depression symptoms which may be preceding the accident.” Burge noted that during
the FCE, Joseph had only been able to sit for 42 minutes but that he sat for a longer period during
the neurological examination, specifically, he was able to complete the “morning long encounter
with only occasional brief breaks” which made Burge feel “quite optimistic.” The testing showed
great improvement from his first assessment in 2015 but showed some “PTSD problems” and
memory/attention deficit issues for which further counseling was recommended.
          On December 29, 2017, the district court issued an order, denying Joseph’s complaint. The
court found that Joseph had failed to show that there had been a material change in circumstances
that would warrant modification of the March 2015 order. The court stated that at the time of that
order, the parties had “apparently” anticipated that Joseph’s medical condition would resolve and
that “in fact, the bulk of the medical evidence shows that it has except for some additional back
pain, that he had, at least to some degree, prior to the car accident, and some minor PTSD issues,
all subjectively reported by [Joseph].” Citing Graber v. Graber, 220 Neb. 816, 374 N.W.2d 8
(1985), disapproved on other grounds, Wagner v. Wagner, 224 Neb. 155, 396 N.W.2d 282 (1986),
the court observed that temporary unemployment is not a material change of circumstances, and it
denied Joseph’s complaint. The court also ruled on several pending orders to show cause why
Joseph should not be held in contempt for failing to pay child support and childcare expenses. In
those matters, the court found the evidence showed that, at least for a period, Joseph “was
experiencing a temporary loss of employment as well as some medical issues and yet still made
efforts to pay something toward his child support and daycare expenses.” Accordingly, the court
found he had shown cause why he should not be held in contempt and vacated the pending orders
to show cause.
          Joseph subsequently perfected his appeal to this court.
                                   ASSIGNMENTS OF ERROR
        Joseph asserts, reordered, that that the district court erred in (1) finding no material change
in circumstances, (2) failing to calculate his monthly child support and childcare obligations based
upon his current income, and (3) denying his complaint for modification of his child support and
childcare obligations.
                                    STANDARD OF REVIEW
        Modification of child support is entrusted to the discretion of the trial court. Hotz v. Hotz,
301 Neb. 102, 917 N.W.2d 467 (2018). An appellate court reviews proceedings for modification
of child support de novo on the record and will affirm the judgment of the trial court absent an
abuse of discretion. Id.




                                                 -7-
        In a review de novo on the record, an appellate court reappraises the evidence as presented
by the record and reaches its own independent conclusions with respect to the matters at issue. Id.
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. Id.
        Interpretation of the Nebraska Child Support Guidelines presents a question of law. Hotz
v. Hotz, supra. When reviewing questions of law, an appellate court resolves the questions
independently of the lower court’s conclusions. Id.
                                            ANALYSIS
        In general, child support payments should be set according to the Nebraska Child Support
Guidelines. Hotz v. Hotz, supra. 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. Id. A decree
awarding child support will not be modified because of a change of circumstances which was in
the contemplation of the parties at the time the original or preceding order was made, but only
those anticipated changes which were specifically noted on the record at the time the previous
order was entered will prevent modification. Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551
(2009). 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. Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018). The paramount concern
in child support cases, whether in the original proceeding or subsequent modification, remains the
best interests of the child. Id. 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.
        Joseph relies on Neb. Ct. R. § 4-217 (rev. 2008), which provides in part:
                Application of the child support guidelines which would result in a variation by 10
        percent or more, but not less than $25, upward or downward, of the current child support
        obligation, child care obligation, or health care obligation, due to financial circumstances
        which have lasted 3 months and can reasonably be expected to last for an additional 6
        months, establishes a rebuttable presumption of a material change of circumstances.

        A party seeking to have a prior child support order modified can prove that a modification
is warranted simply by a showing of the conditions described in paragraph Q (now § 4-217) of the
Nebraska Child Support Guidelines. Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007).
        At the time of the original child support order, the district court’s child support calculation
was based on Joseph’s total monthly income of $4,400 and resulted in a child support obligation
for Joseph of $557. At the modification trial, he offered child support calculations based on his
disability compensation from the Veteran’s Administration, using a total monthly income of
$1,064.67, and calculating his support obligation at either $50 or $83 depending on whether his
support obligation for his daughter was also modified. Clearly, either $50 or $83 represents a



                                                 -8-
decrease of more than 10 percent and a variation from his previous support greater than $25. Joseph
argues the evidence at trial showed a change to his financial circumstances resulting from his
disability following the 2015 accident that had lasted 3 months, that it could reasonably be
expected to last for an additional 6 months, and that the change was not rebutted by the evidence
offered by Susan.
        We note that, although Joseph represented to the district court that his calculation used the
same income for Susan as was used in the original support order, his proffered child support
calculation imputed income to her of $4,740.33 (rather than the $2,367 used initially), and there is
no other evidence in the record with respect to Susan’s income at the time of the modification trial.
Nevertheless, using Susan’s income of $2,367, and Joseph’s income of $1,064.67, application of
the child support guidelines would most likely result in a decrease of more than 10 percent and a
difference greater than $25 from Joseph’s original obligation.
        Joseph’s reliance on § 4-217 depends upon the district court’s acceptance of $1,064.67 as
an accurate assessment of his current income and/or earning capacity. Joseph acknowledges that
earning capacity can be used to calculate child support. Under Neb. Ct. R. § 4-204 (rev. 2016), “If
applicable, 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 opportunities.”
The Nebraska Supreme Court has used an obligor’s earning capacity, rather than his or her actual
income, when determining the applicability of § 4-217 in a proceeding for modification of child
support. See Freeman v. Groskopf, 286 Neb. 713, 838 N.W.2d 300 (2013). However, earning
capacity should be used to determine a child support obligation only when there is evidence that
the parent can realize that capacity through reasonable efforts. Hotz v. Hotz, 301 Neb. 102, 917
N.W.2d 467 (2018). And, in child support cases, the court must determine the parent’s current
monthly income from the most reliable evidence presented. Collins v. Collins, 19 Neb. App. 529,
808 N.W.2d 905 (2012). Here, Joseph argues that the most reliable evidence of his earning capacity
at the time of the modification trial was his current disability compensation, upon which his
proposed child support calculation was based.
        Joseph compares this case to Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014). In
that case, the father sought a modification of his child support obligation after moving from
Omaha, Nebraska to Lenexa, Kansas. Subsequent to his move to Kansas, the father was laid off
from his job, and he was still unemployed at the time of the modification trial. The evidence
showed that the father had been looking for employment since being laid off; that he had looked
in Omaha, Lenexa, and surrounding areas; that he was willing to take employment outside of his
chosen field, including food services jobs; and that he had been unable to find employment. The
father had received certain unemployment benefits, although he was ineligible at the time of trial,
but he testified that he could reapply later. The trial court found a material change in circumstances
and lowered the father’s child support obligation, although not to the level desired by the father.
On appeal, the Nebraska Supreme Court, agreed that the father’s lack of employment was a
material change in circumstances.
        In this case, Joseph was injured prior to the entry of the original March 2015 support order.
Nevertheless, he was apparently still employed with the National Guard at the time of the
stipulation and support order. It is not clear from the record the basis for the determination of



                                                -9-
Joseph’s income at that time. During the modification trial, Joseph testified that his annual salary
with the National Guard in March 2015 at the time the original order was entered was
approximately $30,000. However, the child support chart showed Joseph’s gross income at $4,400
per month which amounts to an annual income of $52,800. This discrepancy was not explored in
the modification trial and no evidence was adduced to support an earning capacity above his
previous $30,000 salary. Joseph was discharged from the National Guard based on his medical
unfitness to continue as a soldier due to his injuries, and other than his brief stint as a pizza delivery
driver, he has been unable to find employment since then that would accommodate his restrictions.
At the time of trial, Joseph was pursuing a college degree in the hopes of establishing a career that
would allow him to support his children.
        In finding that there had not been a material change in circumstances, the district court in
this case did not analyze whether a rebuttable presumption under § 4-217 had been established.
Instead, it relied on Graber v. Graber, 220 Neb. 816, 374 N.W.2d 8 (1985), disapproved on other
grounds, Wagner v. Wagner, 224 Neb. 155, 396 N.W.2d 282 (1986), for the proposition that
temporary unemployment is not a material change of circumstances. In Graber, the mother
obligated to pay child support suffered an illness that prevented her from working a few months
before the modification trial. Specifically, the mother had complications following surgery and
had not yet returned to work at the time of trial. She testified, however, that her disability would
likely not last beyond a specific date and that she would be able to easily find work upon recovering
from surgery based on her excellent qualifications. The trial court denied her application to modify
her support obligation, and the Nebraska Supreme Court affirmed. Given evidence that her
disability would probably last only a few months and because of her qualifications, the Supreme
Court found her unemployment was temporary and not a reason to reduce her child support
obligation.
        Joseph’s disability in this case is not necessarily temporary in the same sense as that of the
mother in Graber. And, while the record reflects that he has made certain improvements, in
particular with respect to his cognitive function, it is clear that he is still undergoing treatment for
the injuries he sustained in the 2015 accident and the record does not establish a clear timeframe
for when he will have reached a maximum level of recovery from his injuries. Burge opined that
Joseph was unable to work from the date of the accident until May 1, 2017, the last date he was
seen by Burge. Burge also opined that Joseph’s limitations were not permanent and could be
improved through further treatment. His testimony, however, does not establish a timeframe for
this occurrence. Likewise, the record does not reveal whether Joseph’s earning capacity following
a more complete recovery from his injuries, and his graduation from college, will be similar to his
earning capacity at the time of the original support order.
        We conclude that the record here supports a finding that Joseph established a rebuttable
presumption of a material change of circumstances since the entry of the initial child support order.
The change in Joseph’s employment and income were the result of his accident and serious
injuries, for which he is still recovering. Cf. Incontro v. Jacobs, 277 Neb. 275, 761 N.W.2d 551
(2009) (obligor parent not entitled to modification of child support where reduction in obligor’s
income is attributable to personal wishes and not result of unfavorable or adverse conditions in
economy, obligor’s health, or other circumstances affecting earning capacity). Our de novo review



                                                  - 10 -
of the record reveals that Susan failed to rebut the presumption established by Joseph. Susan
generally focuses on Joseph’s limited job search and evidence suggesting that his injuries are not
permanent. However, as set forth above, Joseph worked with vocational rehabilitation services to
pursue some jobs, without success, and thereafter sought further education, with assistance from
the Veteran’s Aministration, to improve his employment prospects, all while continuing to treat
his injuries in order to be able to work within his restrictions. His medical doctor confirmed his
diagnoses and limitations. No evidence was adduced by Susan to establish that Joseph had an
earning capacity higher than his present income that could reasonably be realized at the time of
trial or in the near future.
         We find that the district court abused its discretion and erred in failing to apply the
rebuttable presumption contained in § 4-217. We reverse the decision of the district court, and
remand the cause with directions to find that Joseph has established a material change in
circumstances warranting a modification of child support and to modify Joseph’s child support
retroactively to the filing of his complaint. Because the record is insufficient to determine Susan’s
income at the time of the modification trial and Joseph’s child support obligation for his older
child, the district court may hold another evidentiary hearing, at its discretion, to receive such
evidence and determine the amount of Joseph’s child support.
                                          CONCLUSION
        The district court abused its discretion in failing to apply the rebuttal presumption
contained in § 4-217 and in denying Joseph’s application for modification of his child support
obligation. We reverse the decision of the district court and remand the cause with directions as
set forth above.
                                                     REVERSED AND REMANDED WITH DIRECTIONS.




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