Saturday, December 09, 2006

Nebraska court of appeals affirms Hall district court award of alimony to wife when both spouses were practicing attorneys; although child support guidelines call for averaging 3 years of income for determining child support, the appeals court also approves averaging the husbands income over five yearsWagoner v. Tracy (Not Designated for Permanent Publication) Filed December 5, 2006. No. A-05-301. As the court of appeals notes, but in this unpublished opinion, "The instant case presents an interesting scenario: whether alimony is warranted where a spouse had interrupted his or her career for 8 years, but when the spouse resumed his or her career, the party earned a similar annual income as when the career was interrupted.Both spouses were practicing attorneys however the wife left a Lincoln law firm to move to Grand Island and also took off several years to care for the parties special needs children. The Hall County District Court agreed that the wife's annual income would have been $8K higher with the county attorney's office if she had not taken time off. She also had worked for her father's law firm but didnt like working for him! The husband's income varied widely. In 2000 his Schedule C net was $52k, then it was negative for a few years and finally a plus $446K in 2004. The district court ordered $800 per month alimony to the wife and figured child support based on the father's average income that included 2 positive years and three negative. The court of appeals finally approves awarding $7500 attorneys for the wife for her total bill of $32k from the Remboldt Ludtke law firmthe parties had a lengthy marriage lasting 17 years. Tracy interrupted her career for 8 years to care for the parties' children, including the twins, who required special care, and also cared for Wagoner's parents during their illnesses. Tracy did suffer a loss of earning power, as is evidenced by the fact that she would be earning $53,476.56 instead of $46,320.57 had she worked for the Hall County Attorney during the years that she was a stay-at-home parent. Further, we also note that there is an income disparity between Wagoner and Tracy which may be considered in determining whether alimony is appropriate. Thus, we find that the district court did not abuse its discretion in awarding alimony of $800 per month for a period of 5 years. In the instant case, the district court had available to it Wagoner's income from his law practice, farm rental income, and rental income from his law partner. Although Wagoner's law office showed losses in previous years due to billing inactivity, much of that billing was taking place during the 2004 tax year and was reflected in the $446,961 estimated net Schedule C profit for that year. The district court did not abuse its discretion in using Wagoner's average income in determining his child support obligation.

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