Thursday, March 09, 2006

Nebraska Supreme Court (J Stephan) requires courts to use straight line depreciation to determine self employed parents' income for child support before ordering deviations to the guidelines Family Law Professor Blog reports the Nebraska Supreme Court reversed an Otoe County divorce case where the trial court determined the farmer-father's income by arbitrarily adding back income when the father's accountant used "declining balance" depreciation for the father's tax returns. Gress v. Gress 271 Neb. 122 March 3, 2006. No. S-05-007. Child Support guidelines, Para D allows courts to consider depreciation when determining child support, but if the court does it must use "straight line depreciation." The Court rules that courts when agreeing to consider depreciation, must first determine what the parents income would be from this intitial calculation, and them if deviations are appropriate, the court must make these findings "in the best interests of the children."
This is our first opportunity to review a case involving the proper treatment of depreciation deductions under the September 2002 amendment to paragraph D. Interpretation of the Nebraska Child Support Guidelines presents a question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004) once a potential child support obligation has been determined based upon the calculations under paragraph D, paragraph C permits a deviation from the guidelines "whenever the application of the guidelines in an individual case would be unjust or inappropriate." See, Kalkowski v. Kalkowski, 258 Neb. 1035, 607 N.W.2d 517 (2000); because there is no record of what amount of child support Patrick would be required to pay based upon proper calculation of his depreciated income under paragraph D or why it would not be in the best interests of the children to order Patrick to pay that amountthe court reverses

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