                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                     TROESTER V. TROESTER


  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).


                              TIMOTHY D. TROESTER, APPELLANT,
                                               V.

                                LINDA M. TROESTER, APPELLEE.


                             Filed April 23, 2019.   No. A-17-1044.


       Appeal from the District Court for Hamilton County: RACHEL A. DAUGHERTY, Judge.
Affirmed.
       Steven B. Fillman for appellant.
       Megan M. Zobel and Amie C. Martinez, of Anderson, Creager & Wittstruck, P.C., L.L.P.,
for appellee.


       PIRTLE, BISHOP, and ARTERBURN, Judges.
       PIRTLE, Judge.
                                       INTRODUCTION
         Timothy D. Troester appeals from an order of the district court for Hamilton County which
denied his complaint to modify his child support and alimony obligations. Based on the reasons
that follow, we affirm.
                                          BACKGROUND
        A decree was entered on December 12, 2012, dissolving the marriage between Timothy
and Linda M. Troester. The provisions in the decree were based on a settlement agreement reached
by the parties and approved by the court. Linda was awarded custody of the parties’ one minor
child, Jaime, born in 1998, subject to Timothy’s parenting time. Timothy was ordered to pay
$1,000 per month in child support. The calculation took into account Timothy’s child support



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obligation for a child from another relationship, who was born during the pendency of the
dissolution proceedings. Timothy was also ordered to pay Linda $1,200 per month in alimony for
a period of 60 months. After 60 months, the alimony increased to $1,600 per month for 36 months.
         Pursuant to the settlement agreement, Timothy received $2,457,458 in marital assets and
$1,748,565 in marital debts, for a net marital estate totaling $708,893. Linda received $227,292 in
marital assets and no marital debts. To equalize the marital estate, Timothy was ordered to pay a
money judgment to Linda in the amount of $240,000. The first $75,000 was due by March 1, 2013,
and the remaining $165,000 was to be paid in five subsequent annual payments of $33,000 each.
If Timothy was more than 30 days late on any payment, the entire balance was due immediately.
As part of the settlement, the parties agreed that the tax obligation which resulted from the
liquidation or disposition of any asset awarded would be the obligation of the party who liquidated
or disposed of the particular asset.
         On March 31, 2015, Timothy filed a complaint to modify decree, alleging there had been
substantial and material changes in the financial circumstances and incomes of the parties to the
extent that his child support obligation would decrease by at least 10 percent under the Nebraska
Child Support Guidelines, and that his alimony obligation should be substantially reduced or
completely eliminated. Linda filed an answer and counterclaim seeking a modification of
Timothy’s parenting time schedule. Timothy subsequently filed a reply to the counterclaim and a
second cause of action for modification seeking increased parenting time with Jaime. As to the
counterclaim and Timothy’s second cause of action, the parties reached an agreement and entered
into a stipulation which was approved by the court in an order dated September 28, 2016.
         A trial was held on Timothy’s complaint to modify child support and alimony. The
evidence showed that Timothy’s primary occupation at the time of the divorce in 2012 was as a
farmer. At the time of the decree, Timothy was farming a total of 1,400 acres. Timothy was also
employed as a sales representative selling seed corn for Pioneer Seed. He made $61,253 in 2012.
Timothy testified that he had a substantial decrease in income from crop sales from 2012 to 2013
due to the decrease in grain prices and because he lost a lease to 305 acres of land he had been
farming. Timothy acknowledged that he knew before the divorce was finalized that he was losing
the lease to the 305 acres.
         In 2012, farmers were selling their corn for an average price of $7 per bushel, but since
then the price has decreased each year. Timothy testified that grain prices at the time of the divorce
were as high as they had ever been in his farming career. In 2013, the average price for corn
dropped to around $6 per bushel. Timothy sold most of his corn in 2012 between $6 and $8.50 per
bushel and between $5 and $8 per bushel in the fall 2013 and spring 2014. By the time of trial in
the fall 2016, corn was selling at an average of $3.50 per bushel. The input costs for growing corn
had remained fairly stable between 2012 and 2016.
         Jason Katt, a certified public accountant retained by Timothy, reviewed tax filings and
income information provided by Timothy from 2012 to 2015. Katt testified that Timothy’s farm
income was reported on a cash basis, versus an accrual basis. For 2012, Timothy’s farm income
on a cash basis was negative $244,747, but had it been reported on an accrual basis, or when the
income was actually earned, it would have been $522,398, including rental and wage income.
Timothy’s child support obligation was based upon Timothy earning $136,000 annually.



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         Katt testified that in 2013, Timothy’s reported farm income was $649,167, but using the
accrual method it would have been $30,508, including rental and wage income. Timothy also
continued to work for Pioneer Seed in 2013 and earned $62,567.
         Timothy testified that in 2014 his income declined further because crop prices continued
to fall and because he was farming even fewer acres than in 2013. Timothy sold the house and
acreage he was living on and in conjunction with that, he lost a lease to farm the adjacent 770
acres. Timothy’s lease to farm the 770 acres was tied to his ownership of the acreage and thus, the
lease terminated when Timothy sold the acreage. After losing the 770 acres of farm ground,
Timothy had approximately 300 acres of land to farm in 2014. Timothy claimed he sold the house
and acreage because he could not get additional loans he needed to continue farming and he needed
to pay off loans he already had. He sold the acreage for $600,000. At the time of the divorce
settlement, the acreage was valued at $223,000. He was able to sell the house and acreage for a
much higher price than it was valued at the time of the divorce because it included the right to
lease the 770 acres.
         Timothy testified that he also sold most of his farm equipment in 2014 because his
operating loans were not renewed. He testified that the proceeds from the sale of the acreage and
farm equipment were used to pay debts. The sale of the equipment resulted in over $1,000,000 in
capital gains. In addition, Timothy lost $6,600 per year in rental income because he moved into a
home he had been renting out after he sold the acreage.
         For 2014, Timothy’s reported farm income was $275,723. Using the accrual method, his
farm income, plus rental and wage income was $122,378. Timothy had income from selling seed
for Pioneer Seed of approximately $74,394. He also earned over $64,000 in 2014 selling seed
tenders for Meridian. Timothy had been a sales representative for Meridian at the time of the
divorce until 2014. He testified that he quit selling Meridian products because as a sales
representative he had to purchase his inventory and then resell it and he could not obtain the
financing to do that. Timothy liquidated the inventory he had in 2014 and claimed he did not make
any profit.
         Timothy testified that in 2015, the acres he farmed decreased from 300 to 80 because he
could not get financing to farm the entire 300 acres. He rented equipment from a neighbor to farm
the 80 acres. At the time of trial he had locked in a selling price of $4.10 per bushel for his corn
grown in 2015. He testified that farming is not profitable now because the cost of production is
higher than the price paid for selling corn.
         Timothy had around $200,000 in additional capital gains in 2015 due to selling more farm
equipment. Timothy also purchased a grain trailer, truck engine, forklift, and diesel overhaul at a
cost of nearly $100,000 that same year.
         For 2015, Timothy’s reported farm income was $84,896 on a cash basis, and under the
accrual method it would have been $2,459. Timothy also made $69,601 as a seed sales
representative in 2015.
         Timothy claimed that for the first half of 2016, his net income was a net loss of over
$35,000. He stated that his primary occupation at the time of trial was as a truck driver for a
trucking business he started. He estimated that he worked an average of 70 to 80 hours per week
for his trucking business. For the first half of 2016, he earned over $56,000, but claimed he had



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$46,000 in expenses, resulting in $10,000 in net income. He also testified that he had to borrow
$25,000 for repairs to his semi-truck to keep his business going in 2016. He also testified that he
was working 15 hours per week for Pioneer Seed, and expected to earn over $51,000 in 2016. He
also continued to farm in 2016, despite knowing that he would not make a profit. He testified that
he plans to continue farming in the future even though it is not profitable because it is what he
loves to do. He further testified that since the divorce, he has only applied for four jobs and they
were all with Pioneer Seed.
         At the time of trial, Timothy was living in a home owned by his parents. He testified that
he owes them $40,000 for the house and buildings on the land, but he had not made a payment to
them in the past 2 years. He also testified that he owed $706,000 in state and federal taxes due in
large part to the capital gains in 2014 and 2015 and that he does not have the funds to pay down
this debt. He also testified that at the time of trial there had been no efforts by the IRS to collect
the money it was owed. The State however had seized money from his bank accounts to pay for
the State taxes Timothy owed. As a result, Timothy started putting his money in bank accounts
under the name of his girlfriend Monica Kleinschmidt, with himself as an authorized user. He
testified that he did this because the State could not seize his funds if they were in Monica’s name.
         Other evidence showed that in 2013, Timothy paid a private investigator more than $61,000
to prove the mother of his son was unfit so he could obtain custody of his son. At the time of trial,
Timothy had custody of his son. Timothy claimed that the private investigator made $15,000 in
unauthorized charges to his credit card.
         From September 2013 to February 2014, Timothy had numerous charges on his credit card
for “professional services” but denied knowing what these charges were for. Timothy also
acknowledged that he had made numerous charges related to online dating. There were nearly
$21,000 of expenditures on his credit card related to “professional services” and online dating.
There were also several charges for a male enhancement drug on his credit card.
         Timothy also testified about his relationship with his girlfriend, Monica. She moved in with
Timothy in August or September 2015, and her three children moved in a month later. Monica
does not pay Timothy rent, but he claims she buys some food. Monica provides childcare to
Timothy’s minor son and he pays her $300 per month to do so. Timothy claimed before Monica
moved in he was paying a nanny over $2,000 per month to provide childcare. Timothy also pays
Monica $600 per month for bookkeeping duties.
         Timothy admitted to financially assisting Monica and her children for about 9 months
during a time she was not receiving child support, and has continued to help them financially. In
2015 Timothy paid over $4,000 in legal fees for Monica in her divorce. He has also paid for
Monica’s student loans, counseling services, medication, nail salon expenses, clothing, car
payments, plane tickets, massages, and helped her start a Mary Kay business. He also paid $4,000
that Monica owed for a breast augmentation, and bought her a new phone and added her to his
cellular phone plan. There were also recurring monthly payments made to “Adore Me,” for
underwear and bras for Monica.
         Timothy also paid for Monica’s children’s extracurricular activities (dance and piano
lessons), medical expenses, orthodontic expenses, school lunches, and school tuition. Timothy also




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testified about various vacations he took in 2015 and 2016 with Monica and her children. He
testified to paying for most of the expenses associated with these trips.
         In the month of August 2016 alone Timothy paid $1,766 toward Monica’s son’s college
tuition, plus another $500 shortly thereafter. He also paid for Monica’s daughter’s school lunches,
Monica’s migraine medication, and part of Monica’s children’s orthodontic bill. That same month,
Timothy only paid $400 for child support and no alimony. Timothy testified that he felt obligated
to provide for Monica and her children, as “[t]hey’re part of my new family. My life is moving
on.”
         During 2015 and 2016, Timothy made repairs to the home in which he was living totaling
approximately $15,000. Timothy claims the repairs were necessary due to the age of the home. In
May 2016, Timothy purchased dogs for a new dog-breeding business for $2,000. He also
purchased four Nebraska football tickets, plus a $600 donation to the University of Nebraska
Foundation, costing him $2,800. Timothy also testified that he makes monthly payments to support
a child in a third-world country, and pays $260 per month for two storage units.
         Timothy testified that in the spring 2016, Monica received back child support from her
ex-husband and she paid Timothy back “some significant amounts” for items he had paid for her
children. He also testified that Monica pays him back money he spends on her children with her
wages, which incidentally are paid by Timothy.
         Following trial, the trial court entered an order denying Timothy’s complaint to modify
child support and alimony, finding that Timothy’s request to reduce his child support and alimony
obligations was not made in “good faith.” The court stated that it was not apparent that Timothy’s
financial troubles were due solely to circumstances outside his control, and that it appeared that
the change in the economy had only affected his ability to support Jaime and Linda and not his
ability to support himself, his son, Monica, and her three children. The court further found that
based upon the evidence before it, Timothy acted with unclean hands.
                                   ASSIGNMENTS OF ERROR
        Timothy assigns that the trial court erred in (1) denying his complaint to modify child
support and alimony, finding that he failed to show a material change in financial circumstances
outside of his control, and (2) denying his complaint to modify child support and alimony on the
basis that he acted with unclean hands.
                                     STANDARD OF REVIEW
        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. Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016). A judicial
abuse of discretion exists if the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in matters submitted for
disposition. Connolly v. Connolly, 299 Neb. 103, 907 N.W.2d 693 (2018).




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                                           ANALYSIS
       Timothy first assigns that the trial court erred in denying his complaint to modify child
support and alimony on the ground that he failed to show a material change in financial
circumstances outside of his control. He argues that the evidence showed that his income from
farming had significantly decreased since the decree due to a severe drop in grain prices,
warranting a modification of his child support and alimony obligations.
Child Support.
        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).
        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. Id. Further, the Nebraska Child Support Guidelines state that “[i]f 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.” Use of earning
capacity to calculate child support is useful when it appears that the parent is capable of earning
more than is presently being earned. See Rauch v. Rauch, 256 Neb. 257, 590 N.W.2d 170 (1999).
But, the paramount concern in child support cases, whether in the original proceeding or
subsequent modification, remains the best interests of the child. Fetherkile v. Fetherkile, supra.
Accordingly, it is invariably concluded that a reduction in child support is not warranted when an
obligor parent’s financial position diminishes due to his or her own voluntary wastage or
dissipation of his or her talents and assets and a reduction in child support would seriously impair
the needs of the children. 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.
        To determine whether there has been a material and substantial change in circumstances
warranting modification of a divorce decree, a trial court should compare the financial
circumstances of the parties at the time of the divorce decree, or last modification of the decree,
with their circumstances at the time the modification at issue was sought. Metcalf v. Metcalf, 278
Neb. 258, 769 N.W.2d 386 (2009).
        As previously stated, Timothy argues that the evidence showed that his income from
farming had significantly decreased since the decree due to a severe drop in grain prices. We agree
that the evidence established that the price for corn had decreased and affected Timothy’s income.
However, a change in grain prices was contemplated at the time of the decree. The provisions in
the decree were based on a settlement agreement between the parties. Timothy agreed to pay
$1,000 per month in child support, knowing what grain prices were and what his income was at
the time. Timothy had been a farmer for a long time and accordingly, was aware at the time he
agreed to the property settlement that grain prices fluctuate, thereby varying a farmer’s income



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from year to year. Timothy testified that at the time he entered into the settlement agreement, the
price for corn was as high as he had ever seen it. He entered into the settlement agreement knowing
that corn prices could drop in the years following the decree.
         In addition to the evidence that the price for corn had decreased since the decree, the
evidence also showed that there were a number of other factors affecting Timothy’s financial
position and his ability to pay his child support and alimony obligations. As the trial court found,
Timothy’s financial troubles were not due solely to circumstances outside of his control.
         At the time of trial Timothy continued to farm his remaining 80 acres despite knowing that
he was losing money doing so. In the first half of 2016, he earned less than $27,000 in farming
income, and had over $62,000 in farming expenses. He testified that he planned to continue to
farm into the foreseeable future because it is what he loves to do. By continuing to farm, Timothy
was negatively affecting his financial position and voluntarily wasting or dissipating his assets.
See Lambert v. Lambert, 9 Neb. App. 661, 617 N.W.2d 645 (2000) (petition for modification or
termination of alimony will be denied if change in financial condition is due to fault or voluntary
wastage or dissipation of one’s talents and assets).
         Timothy argues that he has tried to improve his financial circumstances by transitioning
from farming to trucking and also continuing as a sales representative for Pioneer Seed. He testified
that he started a trucking business where he was working as many hours as two full-time jobs but
his net income for the first 6 months of 2016 was only $10,000. He also had to borrow $25,000
for truck repairs in 2016. Timothy also testified that he was working 15 hours per week for Pioneer
Seed and expected to make over $51,000 in 2016. In the past he had made up to $70,000 per year
at this job. Timothy was also paying Monica $300 per month for childcare and $600 per month for
bookkeeping.
         The evidence demonstrates that Timothy was capable of earning more than he was earning
at the time of trial. Timothy had voluntarily chosen to continue farming while losing money, and
had chosen to start his own trucking business where he is working countless hours but making
little money. He is only working 15 hours per week at the job that had the most earning potential.
Timothy testified that he had only applied for four jobs since the divorce, all with Pioneer Seed.
Although his highest level of education is a high school degree, the evidence showed that Timothy
had the ability to earn more than he was making at the time of trial. He has years of experience as
a farmer and in farming operations. Although farming the land he had left was not profitable, there
may be other farming-related jobs he would be qualified to do. He also had experience as a
salesman, having sold seed for Pioneer Seed and seed tenders for Meridian. He also had experience
as a truck driver. At the time of trial, Timothy was not earning an income indicative of his earning
capacity.
         The evidence also showed, as the trial court found, that while there had been a change in
the farming economy, that change only affected his ability to support Jaime and Linda and not his
ability to support himself, his son, Monica, and her three children. This was made evident by
Timothy’s testimony that he felt obligated to provide for Monica and her children, as “[t]hey’re
part of my new family. My life is moving on.” It appears Timothy has the ability to pay his support
obligations but has chosen the pay for other expenses of his own, make other purchases, and pay
for items for Monica and her children. Timothy has paid for Monica’s legal fees, student loans,



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counseling services, medication, nail salon expenses, clothing, car payments, plane tickets,
massages, and a monthly underwear and bra subscription. He has also helped her start a Mary Kay
business, paid $4,000 toward a breast augmentation, and bought her a new phone and added her to
his cellular phone plan. Timothy also paid for Monica’s children’s dance and piano lessons,
medical expenses, orthodontic expenses, school lunches, and school tuition. He also paid for
vacations he took with Monica and her children.
         Timothy also spent money on “professional services,” online dating, remodeling his home,
and football tickets. He also bought equipment that cost nearly $100,000 the same year he was
selling farm equipment, spent more than $60,000 on a private investigator, and spent $2,000 to
start a dog breeding business.
         The support of one’s children is a fundamental obligation which takes precedence over
almost everything else. Rauch v. Rauch, 256 Neb. 257, 590 N.W.2d 170 (1999). Timothy has an
obligation to support Jaime, his biological child, and must meet that obligation before voluntarily
paying expenses for a girlfriend and her children. Timothy’s choice to support Monica and her
children has left him unable to meet his legally required obligation to support Jaime.
         Although there had been a change in Timothy’s financial position since the decree which
was initially caused by a decrease in the price of corn, Timothy’s financial position at the time of
trial was due in large part to voluntary decisions he had made. The evidence shows that Timothy
had the capacity to earn more than he was earning at the time of trial and would have assets
available to pay child support if he would chose to do so. We conclude that the trial court did not
err in finding that Timothy failed to show a material change in financial circumstances outside of
his control.
Alimony.
        Timothy’s first assignment of error also alleges that the trial court erred in denying his
complaint to modify alimony. Pursuant to Neb. Rev. Stat. § 42-365 (Reissue 2016), alimony orders
may be modified or revoked for good cause shown. Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d
386 (2009). Good cause means a material and substantial change in circumstances and depends
upon the circumstances of each case. Id. Good cause is demonstrated by a material change in
circumstances, but any changes in circumstances which were within the contemplation of the
parties at the time of the decree, or that were accomplished by the mere passage of time, do not
justify a change or modification of an alimony order. Id. The moving party has the burden of
demonstrating a material and substantial change in circumstances which would justify the
modification of an alimony award. Id.
        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, 592, 680 N.W.2d 616, 623 (2004). We have already
determined that Timothy’s change in financial circumstances was not a material change in
circumstances for child support purposes. Accordingly, we find that Timothy has failed to prove
that there was good cause justifying modification of alimony for the same reasons we set out above
concerning child support. Thus, the trial court did not err in denying Timothy’s complaint to
modify in regard to alimony.



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Unclean Hands.
        Timothy also assigns that the trial court erred in denying his complaint to modify child
support and alimony on the basis that he acted with unclean hands. Because we have concluded
that the trial court did not err in denying his complaint to modify on the ground that he failed to
show a material change in circumstances in regard to child support and failed to show good cause
to modify alimony, we need not address Timothy’s second assignment of error. See Jordan v.
Jordan, 26 Neb. App. 280, 918 N.W.2d 20 (2018) (appellate court is not obligated to engage in
analysis not necessary to adjudicate case and controversy before it).
                                         CONCLUSION
       We conclude that the trial court did not err in denying Timothy’s complaint to modify child
support and alimony. Accordingly, the order of the trial court is affirmed.
                                                                                       AFFIRMED.




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