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).
PIRTLE, Judge.
Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. David J. Ruhge appeals from an order of the district court for Lancaster County modifying provisions of the "Order and Finding of Paternity" regarding child support and parenting time. Ruhge alleges the change amounted to an abuse of discretion. Based on the reasons that follow, we affirm.
On April 20, 2000, the district court for Lancaster County issued a paternity and custody order in this case. Ruhge was ordered to pay child support in the amount of $325 per month to Christy K. Schwede (who is now known as Christine Evans, but for the purposes of this matter will be identified as Schwede) for and on behalf of their minor child, Kirsten Ruhge. Ruhge was also ordered to maintain health insurance for the child and was given a $128 credit for health insurance for the child in the child support computation. There is no evidence that at that time Ruhge was providing health insurance for anyone other than Kirsten and himself.
The instant case arises out of a complaint for modification of child support filed on June 21, 2010, in the district court for Lancaster County, by the State of Nebraska, as intervenor, on behalf of Schwede. The complaint sought modification of the child support that Ruhge had been ordered to pay pursuant to the previous order. The State alleged that a material change of circumstances had occurred since the entry of the order in 2000 that would justify a modification of child support.
Ruhge's answer denied a material change of circumstances justifying an increase in child support due to the fact that he had a legal obligation to support other minor children. He filed a countercomplaint alleging a material change of circumstances that justified a modification of parenting time. The countercomplaint cited issues with holiday and vacation parenting time, as well as a complaint that Schwede interfered with his parenting time by not allowing Ruhge's family to pick up or drop off Kirsten at the commencement and conclusion of the parenting time.
Schwede's answer denied Ruhge's allegations and contained a counterclaim alleging a material change of circumstances had occurred since the entry of the original paternity order. She stated that she now had access to health insurance through her husband's employer which would cover Kirsten at no additional charge and that therefore, the order should be changed to require her to carry health insurance for the child. She also stated the existing parenting time schedule did not include certain items which are required pursuant to Nebraska's Parenting Act.
Ruhge's answer denied Schwede's claims, and the matter was tried before the district court for Lancaster County on May 25, 2011. The State, as intervenor, waived its appearance at trial, and the parties proceeded with their respective counsel.
Since the date of the original order, there were multiple changes in the lives of the parties. Changes include Ruhge's additional earnings, the increased earning capacity of Schwede, the marriage of both parties to other individuals, and the birth of additional children to both Ruhge and Schwede. The trial court heard arguments from both parties regarding health insurance, child support, and parenting time.
Schwede testified that she gained access to health insurance for Kirsten through Schwede's husband's employer. She asked the court to enter an order requiring her to carry the primary health insurance for Kirsten because she had previously had difficulties communicating with Ruhge and his health insurance provider, getting bills paid, and problems with prescriptions. Kirsten was already added to the plan as a secondary, but she could be made a primary without additional cost if necessary. She offered to pay for the first $480 of uncovered medical expenses each year if she were ordered to provide Kirsten's primary health insurance.
Ruhge testified that with the exception of one period when he lost his job, he has continuously held coverage for Kirsten and intends to continue this practice. He also testified that his insurance coverage cost $360.71 per month for individual coverage, and he currently pays $843.42 per month for family coverage for his wife, their son, and Kirsten. To carry family coverage is an additional $482.71 per month, but he would continue to pay the same amount for the family coverage if Kirsten was no longer carried on his insurance plan. Ruhge asked to remain the insurance provider to ensure that Kirsten would maintain insurance coverage in the event that Schwede and her husband divorced, as the policy is through the husband's employer.
The parties also testified regarding issues with parenting time under the original order, including pickup times, holiday schedule, summer parenting time, and who would be allowed to pick up Kirsten for parenting time.
In Schwede's proposed plan, she requested that all pickup times be changed to 6 p.m. She testified that changing the pickup time would make all times consistent throughout the agreement and therefore easier to keep track of. In addition, she testified that Kirsten has been having trouble at school and is staying late to work with her teachers, finishing later than the standard 3:30 p.m. dismissal time. The extra time in the evening would give Kirsten time to work on her homework and pack her bags for overnight parenting time with her father. She said a pickup time of 4:30 p.m. would force Ruhge to pick up Kirsten at school and also make an additional stop to pick up Kirsten's band instruments and medications at home. Schwede also requested that only Ruhge be allowed to pick up Kirsten or, in the alternative, that Schwede be provided with a note so she would know who Kirsten was with at all times. She testified that one time she found out that "someone" had picked Kirsten up from school, only finding out later it was her grandparents. In the meantime, she did not know where Kirsten was or who she was with. Moreover, only Ruhge and Schwede were expressly authorized to pick up Kirsten from school. The grandparents were listed only as "emergency contacts"; they were not authorized to pick up Kirsten. Schwede said it was reasonable for her, as the mother, to be informed as to who was picking up her daughter and where she was located. Schwede testified that she believed the proposed plan was in her daughter's best interests and that a more consistent plan would also help to eliminate friction with Ruhge, as they do not communicate very well.
Ruhge requested that the pickup time remain at 4:30 p.m. so Kirsten would be able to eat dinner with his family. He testified that his work is not scheduled to conclude until 4:30 p.m. and that he works approximately 10 minutes away from Kirsten's school. However, he said he would be able to make arrangements with his boss to pick her up at 4:30 p.m. and would likely be able to pick her up every day. Despite this fact, he asked that the court allow other members of his family to pick Kirsten up at school if he was unavailable. He said he understood Schwede's concern when her daughter is picked up and she does not know where she is, so he would let Schwede know if Kirsten spends time with someone other than him.
Both parties requested that the court implement a holiday schedule and that the summer parenting time be modified to allow the parties longer blocks of time with Kirsten. Ruhge specifically requested a provision that when holiday time superseded regular parenting time, that Kirsten would go to the other parent the next weekend. Under the current plan, there were times when one parent would have her for 3 weeks in a row.
Following trial, the district court entered an order modifying the decree on July 26, 2011, finding a material change in circumstances had occurred since the last order with regard to child support and parenting time that warranted a modification of both and finding that the modification of both was in the best interests of the minor child. The court denied Schwede's request to be responsible for health insurance and did not allow Ruhge a credit in the child support calculations for the health insurance he currently provides. The court ordered that only Ruhge was to pick up Kirsten, except in emergencies, and that standard pickup times be used throughout the agreement. The court modified the summer parenting time and continued the prior agreement of the parties that holiday parenting time supersedes regular parenting time. The court also modified the payment of child support to reflect changes in income.
Ruhge's assignments of error, consolidated and restated, are as follows: The trial court erred and abused its discretion when it (1) computed the amount of child support due from Ruhge to Schwede without allowing Ruhge a credit for health insurance costs associated with coverage for the minor child and (2) found that the parenting plan offered by Schwede was in the best interests of the child, specifically the provisions regarding pick up of the minor child for parenting time and scheduling parenting time around the holidays.
Modification of child support payments is entrusted to the trial court's discretion, and although, on appeal, the issue is reviewed de novo on the record, the decision of the trial court will be affirmed absent an abuse of discretion. Incontro v. Jacobs, 761 N.W.2d 551, 277 Neb. 275 (2009). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrains from acting, and the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Id.
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. Carter v. Carter, 261 Neb. 881, 626 N.W.2d 576 (2001). However, where the credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the circumstances that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. McGuire v. McGuire, 11 Neb.App. 433, 652 N.W.2d 293 (2002).
In the instant case, the trial court heard the evidence and determined that the previous order should remain in effect with the exception of adjustments to child support and parenting time.
Ruhge assigns two errors to the trial court regarding child support, but they both stem from the same issue. He alleges he is entitled to a health insurance credit for the coverage he provides for Kirsten.
The original order, entered by the court in 2000, required Ruhge to carry health insurance for Kirsten. He has done this consistently throughout her life, with the exception of one period when he was between jobs. The court allowed Ruhge a credit for $128 in the child support calculation in 2000. However, when the trial court prepared the child support calculation in the instant case, the credit was not applied.
The parent claiming a deduction for health insurance must show that he has incurred an increased cost to maintain the coverage for the children over what it would cost to insure himself. Noonan v. Noonan, 261 Neb. 552, 624 N.W.2d 314 (2001). In other words, the parent must show how much of the health insurance premium is attributable to the child. Rauch v. Rauch, 256 Neb. 257, 590 N.W.2d 170 (1999).
Ruhge alleges the court erred in not allowing a health insurance credit for the amount he puts toward family insurance when calculating child support. However, Ruhge testified that the family coverage he provides also covers his wife and son. Further, the price of coverage would remain the same regardless of whether Kirsten is covered by the plan. Ruhge testified that he currently pays $360.71 per month for individual coverage and $843.42 per month for coverage of Kirsten, his wife, and his son. Ruhge attributed an additional $482.71 per month to Kirsten. However, without Kirsten on the plan, the amount to cover his wife and son would remain exactly the same. Ruhge cannot show that any portion of the increase between individual coverage and family coverage can be attributed to Kirsten, and therefore, it was not an abuse of discretion for the court to disallow the deduction.
Ruhge's first assignment of error alleges the court erred when it incorrectly computed the amount of child support due from Ruhge to Schwede because the court did not include a health insurance credit for Ruhge. Having determined that the court did not err in disallowing the deduction for health insurance, it is, therefore, not an abuse of discretion for the court to prepare the child support calculation without including a health insurance deduction for Ruhge.
When deciding custody issues, the best interests of the minor children are the court's paramount concern. Mann v. Rich, 18 Neb.App. 849, 794 N.W.2d 183 (2011).
The order modifying the decree states the court found that a material change of circumstances had occurred since the last order with regard to both child support and parenting time, warranting a modification of both, and that the modification was in the best interests of the minor child. The decree adjusted several provisions of the original order, including creating a standard pickup time for parenting time, changing summer parenting time to allow both parents uninterrupted weeks of time with Kirsten, and providing that "except for in an emergency the father shall pick up the child from the mother at the commencement of each parenting time period and be responsible for the return of the child to the mother at the conclusion of each parenting time period described herein." The trial court denied Ruhge's request that the holiday schedule not supersede regular parenting time.
In the instant case, Ruhge assigns errors regarding only picking up and dropping off Kirsten and the provision that holiday visitation supersedes regular parenting time. Ruhge does not deny a material change of circumstances has occurred, but only that these provisions are not in Kirsten's best interests.
At trial, Schwede testified that she would prefer for only Ruhge to pick up Kirsten for parenting time so she would know at all times who Kirsten was with and where they were going. In the alternative, she requested that Ruhge give her notice if the grandparents or Ruhge's wife picked up Kirsten so Schwede would know who Kirsten was with. She said that on a few occasions Kirsten was picked up by "someone" and nobody at the school knew where she was. Schwede later found out Kirsten was picked up by her grandparents, who were listed at the school as emergency contacts, but were not authorized for picking her up. Schwede said it was reasonable for her, as Kirsten's mother and custodial parent, to be informed as to who was picking up Kirsten and where she was going. Schwede also testified that she and Ruhge have difficulty communicating effectively and that ensuring only Ruhge would be transporting Kirsten would alleviate some friction because he would not need to communicate with her constantly regarding who transported Kirsten.
Ruhge acknowledged that it was important for Schwede to know who picked up Kirsten and that at times he failed to inform her of changes. He asked the court for permission to select who would pick up or drop off Kirsten. He argues that
Brief for appellant at 13. However, there is no evidence there was anything preventing him from transporting Kirsten himself. He did not provide evidence that he is working two jobs or that his children have busy schedules. Rather, he stated that he has made arrangements with his boss allowing him to pick up Kirsten for parenting time in the past. He provided no indication that he could not continue to do so. He also testified that his boss is flexible and that his place of employment is approximately 10 minutes from Kirsten's school. Further, in support of his request for a 4:30 p.m. pickup time, Ruhge said he would personally pick up Kirsten and would not need to rely on his parents.
It is not unreasonable for the trial court to order that only the noncustodial parent transport the child for parenting time, in the absence of an emergency, especially given the history of strained communication between the parents. The adjustment to the order does not interfere with Kirsten's time with her father or limit the time she is allowed to spend with her grandparents; it merely limits the transportation for parenting time. There is no showing that this change goes against the best interests of Kirsten; therefore, it is not an abuse of discretion to allow only Ruhge to transport her, in the absence of an emergency.
Ruhge also alleges that ordering holiday visitation to supersede regular weekend parenting time, and continuing with the regularly scheduled weekend parenting time the following weekend, goes against the best interests of Kirsten. This could mean that a parent could have up to three weekends in a row with Kirsten. Ruhge argues that the schedule established in Wilson v. Wilson, 224 Neb. 589, 399 N.W.2d 802 (1987), has become the standard for management of holiday parenting time in the majority of the district courts in the State of Nebraska. While the Wilson parenting time schedule is widely used, it is not a mandatory schedule. Therefore it is not an abuse of discretion merely because the court's order deviates from that schedule. We must consider the best interests of the child to determine whether an abuse has occurred.
Ruhge testified at trial that there were times, under the previous plan, where Schwede would have Kirsten for 3 weeks in a row, and some instances when he would have Kirsten for three weekends in a row. He proposed a parenting plan changing the previous provision to regulate these instances. He stated that he felt the changes requested would be in Kirsten's best interests.
The court's order did not incorporate the changes Ruhge requested. Rather, the court maintained the provision that holiday parenting time shall supersede the regular weekend parenting time schedule, and added the following provision:
This provision merely clarifies and continues the order already in place, meaning each party could still potentially have three consecutive weekends of parenting time. While the trial court did not adopt the provision Ruhge requested, it is a schedule all parties have become accustomed to and affects both parents equally. This does not appear to go against the best interests of the child, and we cannot find it was an abuse of discretion for the court to continue the holiday parenting time as scheduled.
We find the provisions in the trial court's order were not an abuse of discretion regarding child support, transportation of the minor child for parenting time, and parenting time following holidays. The order of the trial court dated July 26, 2011, is affirmed.
AFFIRMED.
