Opinion
No. A-09-716.
Filed January 5, 2010.
Appeal from the District Court for Douglas County: JOHN D. HARTIGAN, JR., Judge. Affirmed in part, and in part reversed with directions.
James A. Adams, of Adams Adams, P.C., L.L.O., for appellant.
Michael B. Lustgarten and Justin A. Roberts, of Lustgarten Roberts, P.C., L.L.O., for appellee.
SIEVERS, MOORE, and CASSEL, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
By a February 1, 2006, decree of dissolution of marriage, Heather L. McElyea (now known as Heather L. Cook) and Jon E. McElyea were divorced. The parties had one child, Anne, born in August 2000. The decree reflects that the parties had mutually agreed upon resolution of all issues except for child support. Heather and Jon agreed to joint legal custody of Anne with Heather designated as the "primary possessory parent." Pursuant to the parties' agreement, the decree provided that in the event of disagreement regarding a major decision "under the joint legal custody arrangement, the parties specifically agree [that Heather] as the primary possessory parent, shall have the ultimate decision making authority for those major decisions." The parties reference this clause as the "final say," and we will adopt that shorthand reference.
The parties agreed to a nearly equal division of physical custody. Jon's parenting time was set as Thursday from the end of school until Saturday at noon during the first week and Thursday from the end of school until Monday morning on the second week, with the weekly schedule alternating thereafter. In addition, Jon would receive three additional weekday parenting time periods per year with prior notice to Heather. Heather would receive three extended weekends per year, commencing at 4 p.m. on Thursday until Monday at 8 a.m. to take place during Heather's regular weekend parenting time. The parties agreed to holiday and summer parenting time which need not be set forth herein. As a result of the parenting time schedule, Jon has 156 overnights per year — and we note that this schedule was apparently followed for some time during the pendency of the divorce action.
On January 23, 2008, Jon filed an application to modify the decree in which he alleged substantial and material changes in circumstances warranting a modification, "to provide for a change in custody, and changing of parenting schedule of the parties, for a decrease in [Jon's] child support obligation, for a child support order requiring [Heather] to pay child support." After a trial, the district court for Douglas County denied Jon's request for modification of the decree but granted Heather's request that Jon's "short week," (referenced as the "first week" in the decree) commence on Wednesday and continue until Anne's return to school on Friday morning. Additionally, the court modified the decree to provide that the parties' primary method of communication will be by e-mail, and detailed terms and conditions of such e-mail communication were outlined by the court. After Jon's motion for a new trial was denied, he filed his notice of appeal on July 17, 2009.
FACTUAL BACKGROUND
Approximately 2 years after the decree of dissolution was entered, Jon retired from active duty in the U.S. Marine Corps after 20 years of service. His retirement was effective January 1, 2008. After his retirement, Jon began work for ARINC, a contractor for STRATCOM, at a salary of $96,000 per year. Additionally, Jon receives $2,015.12 per month as retired military pay plus $230 per month (nontaxable) for a disability. At the time of the decree, Jon's child support was set at $794 per month after the trial court gave him a 20-percent reduction in his child support obligation due to parenting time. There was no appeal from this decree.
Heather is employed at Clarkson College, where she is an assistant professor and coordinator of the nurse practitioner program. This position pays her $58,000 per year. Additionally, Heather works approximately 8 hours per week for the Douglas County Health Department at $35 per hour. And as part of the divorce, she receives $723 after taxes per month from Jon's military retirement. Heather admits that her financial circumstances are better now than before the divorce. Heather makes a 10-percent monthly contribution to her retirement fund, $200 a month to a college fund for Anne, as well as semiregular deposits to her personal savings.
At the time of trial, the parties' daughter, Anne, was an 8-year-old third grader attending Omaha Public Schools in the midtown area near where Heather resides. Jon resides in the Millard area. By all accounts, Anne is a healthy, active, happy, and well-adjusted child who does well in school and participates in a good number of extracurricular activities. She has a close and good relationship with both her parents, and they both are clearly dedicated to her. Neither parent expresses any concern with respect to the parenting abilities of the other. Additional facts will be detailed as necessary in the discussion of Jon's assignments of error.
ASSIGNMENTS OF ERROR
Although Jon assigns 11 errors, he actually argues six; therefore, we limit our recitation of the assignments of error to those that he has actually argued. See Mondelli v. Kendel Homes Corp., 262 Neb. 663, 641 N.W.2d 624 (2001) (to be considered by appellate court, alleged error must be both specifically assigned and specifically argued in brief of party asserting error). Thus, we address the following assigned errors: (1) the trial court should have awarded Jon one additional overnight of parenting time during each 2-week period; (2) the trial court should have removed the language according Heather the "final say" with respect to parental decisionmaking; (3) Jon's child support should be reduced and calculated on the basis of the parties' income using worksheet 3 employed for joint custody; (4) the trial court erred in changing the start date of Jon's parenting time in the short week from Thursday to Wednesday; (5) the trial court erred in adopting the e-mail communication protocol set forth in its order of modification; and (6) the trial court erred in awarding $1,500 to Heather for attorney fees.
STANDARD OF REVIEW
Child custody determinations and parenting time determinations are matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion. McLaughlin v. McLaughlin, 264 Neb. 232, 647 N.W.2d 577 (2002). The standard of review on matters of child support modifications is de novo on the record, but the trial court's decision will be affirmed absent an abuse of discretion. Empfield v. Empfield, 229 Neb. 83, 425 N.W.2d 334 (1988).
ANALYSIS
Jon's Request for One Additional Overnight Per 2-Week Period.
According to the summary of argument in Jon's brief, the trial court should have granted Jon the requested one additional overnight of parenting time for each 14-day period "because Jon had separated himself from the Marine Corps and made himself more available to the minor child and because Anne's mother recently went through a divorce and Anne needed her father in her life as much as possible." Brief for appellant at 23.
The law is clear that parenting time rights established by a dissolution decree may be modified upon a showing of a material change in circumstances affecting the best interests of the children. Fine v. Fine, 261 Neb. 836, 626 N.W.2d 526 (2001). The best interests of the child is the primary and paramount consideration in modifying parenting time rights. Id.
Our initial question becomes whether Jon established a material change in circumstance that affected the best interests of Anne — which by definition is a two-part test. Jon's first argument is that by retiring from the Marine Corps, there has been a material change that affects Anne's best interests. However, the parenting time schedule that Jon seeks to modify was the product of an agreement between the parties at the time of the original decree. It has been said that a consent decree is usually treated as an agreement of the parties and is accorded greater force than ordinary judgments and ordinarily will not be modified over objection of one of the parties. Desjardins v. Desjardins, 239 Neb. 878, 479 N.W.2d 451 (1992). Heather objects to the proposed change in parenting time.
Jon argues that his retirement from the Marine Corps makes him more available to parent Anne as he is not at risk of being deployed into a combat zone nor is he any longer "on call 24/7." Heather's initial response is that his retirement was contemplated at the time of the divorce and, thus, such is not a material change. Changes in circumstances which were within the contemplation of the parties at the time of the decree are not material changes in circumstances for purposes of modification of a divorce decree. See Desjardins v. Desjardins, supra. The evidence shows that at the time of the divorce, Jon needed 2 more years of service to qualify for his 20-year military retirement, and he testified that while such retirement was a "possibility" then, it was not planned, and whether he did retire depended on a variety of factors such as promotions and assignments. Heather did not dispute this characterization of the situation at the time of the divorce. Thus, we reject Heather's argument in this regard. Nonetheless, the record before us lacks evidence of what Jon's position and duties were in the Marine Corps at the time of the divorce, beyond that he was a Marine Corps officer attached in some unspecified way to Offutt Air Force Base. As a result, there is no basis to compare his availability for parenting Anne in 2006 against his availability now after his retirement from the Marine Corps, other than his conclusionary assertion that he is "more available" and that he works more of a "9 to 5" job. But, more importantly, there is absolutely no evidence proving, let alone even suggesting, that increasing Jon's parenting time by one overnight in each 2-week period of time is in Anne's best interests, even if we could conclude that his retirement is a material change in circumstances. While it is admittedly true that the evidence shows that Jon has a good relationship with Anne, provides excellent care for her, and is heavily involved in her life, the same is true of Anne's involvement with her mother and the present schedule had been in effect for 4 years — including nearly 2 years predecree. Thus, on appellate review, remembering that the trial court saw the parties and listened to them, we cannot say that the trial court abused its discretion in its implicit conclusion that Jon had not proved the necessary prerequisites for a modification of his parenting time — a material change in circumstances which affects Anne's best interests.
We briefly address Jon's further assertion that Heather's divorce from her second husband, Les Mikkelson, had a negative impact on Anne, thereby providing "an even stronger need for Anne to have as close a connection with Jon as possible." Brief for appellant at 25. The evidence reveals that Heather was married to Mikkelson for 2 years and several months, but that she never left her Omaha residence to live with him in Colorado nor did he live with her. Theirs was a long-distance relationship, and from the testimony, their time together during the marriage was quite limited. Heather merely testified that Anne was establishing a good relationship with Mikkelson during this brief and somewhat unconventional marriage. While Heather described the divorce as "unpleasant," it apparently was not acrimonious because in Heather's words, she and Mikkelson remain "very close friends." We find that there is nothing but speculation behind the assertion that Heather's divorce from Mikkelson is a material change in circumstances, given the brief and unusual nature of the marriage, such that the divorce makes it in Anne's best interests that she spend more time with Jon. In fact, this claim borders on being frivolous. In conclusion, we find that the trial court did not abuse its discretion in failing to award Jon the additional parenting time he sought in this modification proceeding.
Should Trial Court Have Removed Provision Giving Heather "Final Say "on Certain Matters From Decree?
The "final say" language at issue from the decree provides: "In the event of a disagreement relating to a major decision (educational, medical and religious) under the joint legal custody arrangement, the parties specifically agree the Plaintiff, as the primary possessory parent, shall have the ultimate decision making authority for those major decisions."
Jon argues that at the time he agreed to this provision, he had no anticipation that Heather would "abuse" the final say language, but that she has "abused" it. He cites as her abuse of such provision, which allegedly constitutes a material change of circumstances, the selection of a primary care physician for Anne without consulting him; the selection of a daycare provider for Anne, again without consultation; transportation issues; and participation in school events. Thus, Jon argues that "these various abuses indicate that the final say language should be removed and `true' joint legal custody should be awarded to Jon in order to lessen the conflict that Anne could be exposed to as a result of Heather's abuses of the final say language." Brief for appellant at 26. We first note that the record does not show that Anne has been exposed to conflict between the parents since the divorce decree except that she is apparently aware of this proceeding and has expressed some discomfort that her father has initiated it.
In order to modify the decree to remove such language, there must be a showing of a material change in circumstances that affects Anne's best interests. There is a certain illogical component to this argument because Jon argues that Heather's use of the final say language that he agreed to is, in and of itself, a material change in circumstances. The argument is inherently flawed and illogical given that Heather is only using a power given to her by the parties' agreement that was adopted by the trial court. Jon apparently attempts to avoid the illogical nature of his claim simply by labeling Heather's decisionmaking as "abusive." In the instance of the change of Anne's doctor, that came about because Heather moved from the Millard area to midtown Omaha when the parties divorced and she wanted a primary care physician in that area. To characterize this decision as an abuse of the "final say" provision seems to be a rather gross exaggeration. The daycare provider issue arose because initially, the selected provider's schedule did not match well with Jon's but the provider and Jon ultimately worked that out — and, in any event, the provider at issue was only used for one summer. While the parties have had some disagreement about transportation of Anne between homes, the "final say" provision relates to major decisions — and the evidence fails to demonstrate that transportation is a "major" matter — and in fact, the evidence is that Jon and Heather have "worked it out." Finally, the record does not provide enough detail for us to meaningfully comment on the matter of Anne's school activities and the "final say" provision.
Interestingly, part of Jon's argument for removal of the "final say" language is that he and Heather have been able to communicate so well — stating that they "have enjoyed what I believe to be very constructive communication and dialog on a number of circumstances in a number of areas." On the other hand, in various places in the record, they describe the other as "controlling" and "bullying." Even if we were to accept that both Jon and Heather have such characteristics, such would only enhance the need for someone to have the "final say," although our hope is that the parties would generally operate by accommodation and compromise for the best interests of Anne — and there is substantial evidence that they have largely done so. That said, we find no persuasive evidence that Heather has abused the "final say" power given to her by the decree. Accordingly, the trial court did not err in failing to remove this provision from the decree.
Should Jon's Child Support Be Calculated Using Worksheet 3 for Joint Custody?
At the time of the original dissolution decree, the trial court ordered that Jon pay child support in the amount of $794 per month. The trial court attached a child support worksheet and made a specific finding that "based on the parenting time schedule exercised by [Jon] there should be a 20 percent reduction in [Jon's] child support obligation from the $992 per month figure set forth on the worksheet to the $794 per month figure ordered by the Court." In this modification proceeding, Jon sought a reduction in his child support via use of the joint custody worksheet 3, and he submitted a 50-50 calculation if he were awarded additional parenting time, or a 53-47 percent calculation if his parenting time was not increased. As stated earlier, we have affirmed the trial court's denial of additional parenting time for Jon. Accordingly, under Jon's argument, if worksheet 3 were used, his child support would be reduced from $794 per month to $355.62 per month.
The trial court's worksheet attached to the decree references usage of "Regulation J," which we assume was intended to actually reference "J. Visitation or Parenting Time Adjustments" from the Nebraska Child Support Guidelines that were in effect at the time the decree was entered. At the time of the decree, paragraph J provided in pertinent part:
An adjustment in child support may be made at the discretion of the court when visitation or parenting time substantially exceeds alternating weekends and holidays and 28 days or more in any 90-day period. During visitation or parenting time periods of 28 days or more in any 90-day period, support payments may be reduced by up to 80 percent.
Clearly, Jon's visitation under the decree provided him with more than 28 days of parenting time in a 90-day period. We note that at the time of the decree, paragraph L of the guidelines, entitled "Joint Physical Custody," provided simply that "When a specific provision for joint physical custody is ordered, support may be calculated using worksheet 3." At the time of the original decree, the court did not expressly provide for joint physical custody, only joint legal custody.
When the guidelines were revised effective July 1, 2007, Neb. Ct. R. § 4-212 was adopted, and it provides in pertinent part as follows:
When a specific provision for joint physical custody is ordered and each party's parenting time exceeds 142 days per year, it is a rebuttable presumption that support shall be calculated using worksheet 3. . . . For purposes of these guidelines, a "day" shall be generally defined as including an overnight period.
Jon argues in his brief that because of the new § 4-212 effective after the decree but before the application for modification, there has been a material change in circumstances due to such revision in the child support guidelines.
Although the decree does not contain "a specific provision for joint physical custody," we think it helps to detail the Supreme Court's decision in Elsome v. Elsome, 257 Neb. 889, 601 N.W.2d 537 (1999). In Elsome, the court articulated the differences between joint legal custody and joint physical custody, noting initially that Neb. Rev. Stat. § 42-364(5) (Reissue 1998) then in effect did not define joint custody as either legal or physical joint custody, nor did any other Nebraska statute. The Elsome court then examined decisions from other jurisdictions and concluded that joint legal custody involves joint authority and responsibility for making major decisions regarding a child's welfare and joint physical custody involves joint responsibility for minor day-to-day decisions as well as the exertion of continuous physical custody by both parents over a child for significant periods of time, citing Pascale v. Pascale, 140 N.J. 583, 660 A.2d 485 (1995). The Elsome court then turned to the facts of the case before it, where each parent had "joint legal custody" of both children but neither parent was designated as the primary physical custodian. The court then recited the mother's admission that the father physically had the children in his care 38 to 40 percent of the time, and the fact that she did not dispute that he provided them with all aspects of their daily needs, including shelter, clothing, food, toys, and emotional care during those periods. Significantly, the Elsome court said that regardless of how prior decrees or court orders characterized the parenting arrangement, if the trial evidence establishes a joint physical custody arrangement, courts will so construe it, citing Tweeton v. Tweeton, 560 N.W.2d 746 (Minn. App. 1997). Thus, the Elsome court concluded that the father had proved that in addition to joint legal custody he shared joint physical custody of the children with the mother — and that child support should be calculated using worksheet 3.
Thus, under Elsome, remembering that Jon has physical custody of Anne approximately 47 percent of each year, Jon should be deemed to have joint physical custody of Anne for purposes of the child support calculation — meaning that worksheet 3 should be used. We note that Heather candidly admits in her brief that "had [Jon] sought appellate review of the trial court's child support determination in the decree of dissolution from 2006, [Jon] should have prevailed under the principles set forth in the Elsome case." Brief for appellee at 34. We do not disagree. However, Heather then argues that this modification proceeding is not appropriate to correct an error made in the original decree, given that modification requires a material change in circumstances subsequent to the original decree.
In response, Jon relies on our decision in Pool v. Pool, 9 Neb. App. 453, 613 N.W.2d 819 (2000), and argues that regardless of the fact that the initial decree was based on an improper child support worksheet, the trial court in this modification proceeding was not bound by the original decree and should have used worksheet 3 in this modification proceeding to set his child support. Although, Pool, supra, may well support Jon's argument, we find that a more fundamental and straightforward basis exists for the use of worksheet 3 in this proceeding — that the pertinent guidelines have been changed since the original decree.
As we detailed above, paragraph L, entitled "Joint Physical Custody," was eliminated from the guidelines and replaced with § 4-212, effective July 1, 2007. Summarized, the new § 4-212 made use of worksheet 3 a rebuttable presumption once a parent had more than 142 days per year of parenting time, whereas in the replaced paragraph L, the rule could be seen as being simply permissive and discretionary given that it merely provided: "When a specific provision for joint physical custody is ordered, support may be calculated using worksheet 3." There is authority that a change or modification in the Nebraska Child Support Guidelines can be in certain circumstances, in itself, a material change in circumstances. See Gartner v. Hume, 12 Neb. App. 741, 686 N.W.2d 58, (2004). Thus, there is a material change in circumstances established. Elsome, supra, teaches that worksheet 3 should be used, and given that Jon provides for all of Anne's needs while she is with him, the presumption for use of worksheet 3 is not rebutted. The trial court should have applied § 4-212, which was adopted after the original decree, and used worksheet 3.
At oral argument, when questioned on this issue, Heather's counsel argued that Jon did not have custody of Anne for the requisite number of days for the presumption to apply. However, § 4-212 largely provides the answer to this argument because it says that "a `day' shall be generally defined as including an overnight period." Counting days by counting overnights makes abundant sense because children typically spent the majority of their daytime hours in school or daycare; thus, it really is the evening, overnight, and early morning hours before school that a parent is really doing their parenting — plus parents often have children for a portion of a day making the counting of "days" problematic and parents often split days when they have the children. Accordingly, we count Jon's days of parenting time for child support calculation purposes by counting the overnights that he has Anne.
Jon introduced into evidence exhibit 10, which reflected that on a joint custody calculation using worksheet 3, based on his 156 overnights per year, his child support would be $355.62. We have independently verified the accuracy of Jon's worksheet 3 calculation, and therefore, we reverse the trial court's decision setting child support at $794 per month and order that Jon's child support shall be $356.00 per month.
In Riggs v. Riggs, 261 Neb. 344, 622 N.W.2d 861 (2001), the court held that absent equities to the contrary, modification of a child support order should be applied retroactively to the first day of the month following the filing date of the application for modification — which in this case would be February 1, 2008. However, the original error in setting child support was the trial court's, Jon did not appeal, and it would be inequitable to make this modification retroactive, which would result in Heather's owing Jon approximately $9,636, which likely would result in Heather's receiving no child support for 27 months — despite the fact that her earnings are substantially less than Jon's. (Our math is: $794 — $356 = $438 x 22 months (February 1, 2008, to January 1, 2010) = $9,636 ÷ $356 per month = 27 months.) In addition to these factors disfavoring retroactivity, the evidence shows that Jon's substantial income makes it unlikely that paying the additional support in the past caused any real hardship for him. Thus, we conclude that this is a case where the equities militate against retroactivity of the adjusted child support, and, as a result, the reduced amount shall be effective beginning with the first day of the month following the issuance of our mandate.
Did Trial Court Err in Changing Jon's Parenting Time in Order to Give Heather Full Weekend of Parenting Time?
In the original decree, Jon's parenting time with Anne in the first week began on Thursday from the end of school and continued until Saturday at noon and in the second week began on Thursday from the end of school until Monday morning at the start of school and alternating in the weeks thereafter.
Heather testified that at the time of the divorce decree, she was working from 8 o'clock to noon on Saturday mornings for the Douglas County Health Department as a nurse practitioner and that thus Jon's parenting time in the first week extended until Saturday noon. As a consequence, in the original decree, Heather did not have a full weekend with Anne, whereas in Jon's "second week," he had the entire weekend with Anne.
Heather sought a modification of the decree to start Jon's first week of parenting time on Wednesday at the end of school and ending on Friday morning at the start of school, or 8 a.m. if school was not in session. The district court ordered such change in its order of modification. Jon assigns error to such change. Jon argues that the adjustment ordered by the trial court "is arguably more disruptive to Anne's life than is [his] request for one more additional overnight of parenting time for each 14 days." Brief for appellant at 33. Jon does not argue that such schedule change does not work with his other activities and obligations.
We find that the evidence establishes a material change in circumstances because Heather's work schedule has changed since the decree so that she no longer works Saturday mornings as she did at the time of the decree. Therefore, she now is able to have Anne for an entire weekend, which would alternate with the entire weekend that Jon has Anne. While Jon argues that such change is "disruptive" of Anne's school schedule, he does not really articulate how or why, and in any event, any disruption would be quite minor for a child who is well accustomed to moving between her divorced parent's homes, as is Anne. The change equalizes the time that Anne spends with each of her parents on weekends. Doing so facilitates travel and recreational activities that each parent is able to engage in with Anne. Thus, we find a material change of circumstances and one which affects Anne's best interests. Upon our de novo review, we cannot say that the trial court abused its discretion in making this adjustment to Heather's parenting time. Accordingly, this assignment of error is without merit.
Did Trial Court Err in Modifying Decree to Implement Specific E-mail Protocol for Communication Between Parties?
As part of its order of modification, the trial court provided that "the parents' primary method of communication shall be by e-mail." The trial court then provided that communication should be in a "businesslike manner without language that is sarcastic, derogatory, inflammatory, demeaning, judgmental, accusatory, or digresses within [sic] historical statements or past problems or failures to cooperate."
The order then contains additional details of the protocol such as that an e-mail shall encompass only one topic, that the responding parent shall acknowledge receipt and indicate when an answer will be provided, and that the answer shall be timely provided. The court's order does, however, indicate that either party may direct that an e-mail exchange on a topic shall "STOP" which shall terminate the discussion. Finally, the protocol provides that when time constraints require "quicker consideration of an issue than e-mail will allow," then telephone communication may occur by voicemail. The trial court did not make factual findings supporting the adoption of this rather limited and rigorous communication protocol. However, our de novo review of the record shows that the basis for such restriction arises from communication difficulties that the parties have incurred since their separation, and we summarize those difficulties. From Heather's viewpoint, Jon is controlling and accustomed to having his way as a former Marine Corps officer, plus his personal interaction with Heather involves intimidating body language and encroachment on her personal space. She recounts that either through conversations, e-mails, or telephone calls, Jon "bombards her" to the point that she often becomes "worn down" and "gives in." Heather indicates that in their personal interactions, Jon refuses to make eye contact with her.
On the other hand, Jon describes Heather as "controlling and bullying." He did not provide specific examples of any such behavior beyond what might be inferred from his claim of Heather's "abusive" use of the "final say" provision which we have already fully examined. Obviously implicit in the trial court's adoption of the e-mail protocol is the notion that the court found Heather's description of their interactions and communications more credible than Jon's. With respect to an issue such as this, we believe that the trial court's personal observation of the parties and their demeanor during the course of the contested proceedings is a valuable tool in reaching an appropriate decision. Although it is unfortunate that two adults who share physical custody of their young daughter cannot find a way to communicate in a civil and respectful manner, we defer to the trial court's implicit finding that the testimony of Heather about the parties' personal interactions justifies the restrictions imposed via the e-mail and telephone protocol.
Did Trial Court Commit Error by Ordering Jon to Pay $1,500 Toward Heather's Attorney Fees?
Jon argues that it was error for the trial court to order him to pay $1,500 toward Heather's attorney fees. An award of attorney fees by the trial court is reviewed de novo on the record for an abuse of discretion. See Reichert v. Reichert, 246 Neb. 31, 516 N.W.2d 600 (1994). Jon argues that Heather sought affirmative relief herself, that his claims were not frivolous, and that Heather can afford her own fees. While it is true that Heather sought relief, she testified that it was not until 2 weeks before trial that it was clarified that Jon's application did not seek sole custody, and that such uncertainty caused additional fees to be incurred. Certainly, Jon's prayer for relief in his application contains a request for custody of Anne and for Heather to pay him child support. And while not all of Jon's claims were frivolous, we earlier found that his claim that Heather's divorce was a basis for awarding him more parenting time bordered on being frivolous. It is true that Heather's financial picture is solid, but not as solid as Jon's. The award of fees, in our experience, is quite nominal. Thus, after consideration of all factors involved in an attorney fee award, which are well known and need not be repeated here, we cannot say that the award of $1,500 was an abuse of discretion by the trial court. This assignment of error is without merit.
CONCLUSION
We affirm the trial court's order of modification in all respects except for Jon's child support obligation. We order that beginning with the first day of the month following the issuance of our mandate, John's child support obligation shall be reduced from $794 per month to $356 per month.
AFFIRMED IN PART, AND IN PART REVERSED WITH DIRECTIONS.