State on Behalf of Elsasser v. Fox

Irwin, Judge,

dissenting.

I respectfully dissent from the decision of the majority holding that the district court committed an abuse of discretion by *675not deviating from the Nebraska Child Support Guidelines and allowing Chad a deduction for his monthly student loan payments in computing his net monthly income. There is no precedent for such an allowance, and there is currently no case law which mandates such an allowance. Under these circumstances, I simply cannot find an abuse of discretion.

The majority cites no authority for granting a deduction for student loan payments in computing a parent’s child support obligation. My research reveals that there is practically no authority for such action and that there is no authority in Nebraska. In In re Marriage of Davis, 287 Ill. App. 3d 846, 679 N.E.2d 110 (1997), the court did grant such an allowance. However, the Illinois child support guidelines provide that a party is to be granted a deduction for “ ‘[expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income ....’” (Emphasis omitted.) 287 Ill. App. 3d at 852, 679 N.E.2d at 114. In Nebraska, we have no such language in our child support guidelines, nor can any other language in our guidelines be construed as granting such an allowance.

The trial court in the present case made a specific finding that “[u]nder the circumstances of this case ... it would not be reasonable [or] equitable to allow the deviation for student loan payments requested by [Chad].” In order to find an abuse of discretion, it is necessary that the trial court’s decision be clearly untenable and deprive a litigant of a substantial right or a just result. The majority does not clarify how this standard is met in the present case, and I do not believe that it is. To hold that the trial court committed an abuse of discretion in this case is tantamount to suggesting that despite the fact that student loan payments are not enunciated in the guidelines as a specific basis for deviation, failure to grant a deviation and allow a deduction when the student loan is incurred to enable a parent to obtain employment which will ultimately benefit the child during his life is, by itself, an abuse of discretion. The majority sets a potentially far-reaching precedent in this case by its holding.

Despite the conceded facts that student loans are often a necessary expense for a parent to obtain an education and achieve meaningful employment, that the education received as a result *676of incurring the loans will ultimately benefit the child, and that the loans must be repaid and are difficult,, if not impossible, to discharge, I do not believe that a trial court’s failure to grant a deviation to allow a deduction for the amount of the monthly loan payments is an abuse of discretion. See Jensen v. Bowcut, 892 P.2d 1053 (Utah App. 1995) (holding that lower court did not abuse discretion by failing to grant deduction for student loan payments). See, also, CSEA v. Lozada, 102 Ohio App. 3d 442, 657 N.E.2d 372 (1995) (holding that referee erred in granting deduction for student loan payments). Although I would acknowledge that in a proper case, a trial court may well be justified in concluding that such a deviation from the guidelines is necessary for a just or appropriate result, the trial court’s failure to grant such a deviation in the present case is not an abuse of discretion. The trial court’s decision not to grant the deviation was in compliance with the current child support guidelines, and absent some modification of the guidelines, I would not find an abuse of discretion and would not grant this deviation on appeal.