A-12-1025, Tracy Marie Gannon (Appellant) v. Jeffrey Nolan Gannon
Hall County, District Judge William T. Wright
Attorneys for Appellant: John B. McDermott and Mark Porto (Shamberg, Wolf, McDermott & Depue)
Attorney for Appellee: Chris A. Johnson (Conway, Pauley & Johnson)
Civil Action: Divorce/Child Support
Proceedings below: The district court entered decree of dissolution in which it calculated child support based on Jeffrey’s current earnings rather than potential earnings reflected by his prior employment as a teacher.
Issues: Whether district court erred when it calculated Jeffrey’s child support obligation based on his current earnings rather than on what he earned as a teacher before he lost his teaching license as a result of a criminal conviction.
Facts: Tracy and Jeffrey Gannon were married in 2001 and had two children during their marriage. Tracy filed for divorce in July 2011. In August the district court entered a temporary order granting Tracy custody of the children and ordering Jeffrey to pay child support of $980 per month. At the time, Jeffrey worked as a teacher and coach at Grand Island High School. In October 2011, criminal charges were filed against Jeffrey after Tracy alleged that without permission he entered the home in which she lived with the children and that he pushed both her and their daughter. Jeffrey denied the charges but pled guilty to domestic assault as part of a plea agreement. In August 2012, Jeffrey learned that the Nebraska Department of Education had denied his application to renew his teaching license because of the domestic assault conviction and his failure to report a prior conviction for disturbing the peace that resulted from another altercation with Tracy. Jeffrey then began working at a travel agency owned by his parents. His earnings as a travel agent were significantly less than what he had earned as a teacher.
The parties agreed to most issues in connection with the divorce and the only issue tried before the court in September 2012 was the amount of Jeffrey’s child support obligation. Tracy argued that support should be based on Jeffrey’s earning potential as evidenced by what he had earned as a teacher. Jeffrey argued that it should be based on his current earnings as a travel agent because he had lost his teaching license and therefore could not obtain employment as a teacher.
The district court in its decree of dissolution decided to use Jeffrey’s current earnings as a travel agent to determine his child support obligation. The court rejected Tracy’s argument that because Jeffrey’s decrease in earnings was due to his own wrongdoing, he should not benefit by being liable for less child support. The court distinguished precedent cited by Tracy because the precedent involved cases where a party whose earnings decreased sought modification of support whereas the present case involved the initial determination of permanent support. The court analogized this case to the situation where a party’s earning capacity is reduced because the party is incarcerated for a crime and, under Neb. Rev. Stat. § 43-512.15(1)(b), such reduction in income is considered to be an involuntary reduction of income. The court reasoned that even if Jeffrey’s license were eventually reinstated he would still have difficulty obtaining a teaching job because of his criminal record and that therefore his current earnings were a better indication of his earning potential. The court further noted that if Jeffrey’s earnings increased significantly in the future Tracy could seek a modification of child support. The court ordered Jeffrey to pay child support of $580 per month.
Tracy appeals and asserts that the district court erred when it used Jeffrey’s current earnings to determine his support obligation. She argues that the precedent she cited can be extended to the initial determination of a permanent support obligation where, as in this case, the court had already set temporary support based on earnings before the reduction. Jeffrey generally argues in response that the court had discretion to determine the issue and that it did not abuse its discretion when it accepted his arguments over Tracy’s.