Opinion
No. 38053.
Filed March 3, 1972.
1. Divorce: Parent and Child. In a proceeding for modification of an order for child support a post-decree birth is a change of circumstances, although the decree provided for support of the unborn child. 2. ___: ___. A father is primarily liable for support of his minor children, his liability being independent of the assets of the mother. 3. Divorce: Parent and Child: Appeal and Error. The order of the trial court in a child support proceeding will not be overturned unless there is found an abuse of discretion.
Appeal from the district court for Scotts Bluff County: TED R. FEIDLER, Judge. Affirmed.
George A. Sommer, for appellant.
Wright Simmons and John F. Wright, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
The district court increased the allowance payable by Harold Duane Schneider to Sally Jo Schneider for child support to $200 a month. Harold appeals.
On May 6, 1970, Sally and Harold stipulated that he would pay her $150 a month for child support. The payment was to be for the support of Kari and an unborn child. The following day the court incorporated the stipulation into a decree that awarded Sally an absolute divorce.
On September 8, 1970, Sally gave birth to a child, Karmen. On October 26 she petitioned for an increase to $250 a month for child support. At the trial in January 1971 she testified as follows. At the time of the stipulation she had not anticipated certain circumstances. They were living expenses and the length of her unemployment because of the pregnancy. In addition she desired to send Kari, age 3 1/2, to preschool at a cost of $5 a day.
Sally at the time of trial was employed at a monthly salary of $320 gross, $260 net. Harold was a manager of Universal C.I.T. at a gross monthly income of $745 which he had been receiving for some time. A Christmas bonus in 1970 amounted to $260. His net monthly income was $575 which resulted partly from his claim of one exemption for withholding of income taxes. He intended to claim two more exemptions for the children in 1971. He owned an automobile which he needed in his employment. Among his other assets were a trailer, a color television set, and a stereophonic sound console. The trailer was heavily encumbered.
If the circumstances of the parties shall change or it shall be to the best interests of the children, the court may alter the decree respecting care and maintenance of the children. 42-312, R.R.S. 1943. A post-decree birth is a change of circumstances, although the decree provided for support of the child.
A father is primarily liable for support of his minor children, his liability being independent of the assets of the mother. The order of the trial court in a child support proceeding will not be overturned unless there is found an abuse of discretion. Benton v. Benton, 187 Neb. 205, 188 N.W.2d 685 (1971).
The district court in this proceeding committed no abuse of discretion. The order is affirmed. Sally requests an allowance for services of her counsel in this court. The request is denied.
AFFIRMED.