Background
David D. Mitchell, Jr. and Jessica L. Mitchell divorced on November 15, 2023, pursuant to a settlement agreement. The decree ordered Mitchell to pay child support based on $8,000 gross monthly income derived from his business. Mitchell had been self-employed since high school but his business filed for bankruptcy in July 2022.
In January 2024, Mitchell started a new video game console repair business. Four months later, in April 2024, he filed a motion to modify child support, claiming a material change in circumstances due to substantially reduced income. Mitchell asserted his new gross monthly income was approximately $3,300. At trial in March 2025, Mitchell supported his income claim with his 2022 and 2023 tax returns, self-prepared profit and loss statements for his console repair business, and testimony. The trial court found insufficient proof and dismissed the modification action.
The Court’s Holding
The Nebraska Court of Appeals affirmed the trial court’s denial of Mitchell’s modification motion. Mitchell bore the burden of proving by preponderance of the evidence that a material change in circumstances occurred—one that was not contemplated when the original decree was entered. The appellate court found Mitchell failed to meet this burden.
The court identified two critical deficiencies in Mitchell’s evidence. First, his profit and loss statements lacked credibility because they contained no documentary support such as bank statements, despite such records having been requested in discovery. Second, the court gave weight to the trial judge’s implicit finding that Mitchell’s testimony itself lacked credibility. Although Nebraska’s Child Support Guidelines recommend providing two years of tax returns, financial statements, and wage stubs, testimony alone may suffice—but only if credible. Here, neither Mitchell’s documents nor his testimony proved his claimed income.
The appellate court also addressed a secondary error: the trial court had improperly included food stamps in its rough income estimate, as means-tested public assistance benefits cannot count toward “total monthly income” under the Guidelines. However, this was harmless error because the trial court’s written order did not rely on that calculation; instead, it rested on Mitchell’s failure to produce sufficient proof of changed circumstances.
Key Takeaways
- A parent seeking child support modification must prove a material change in circumstances by preponderance of evidence; the burden is substantial and lies with the moving party.
- Self-prepared profit and loss statements without corroborating documentary evidence—particularly bank statements—will be viewed skeptically and may be found insufficient to prove income.
- Courts will give significant weight to a trial judge’s credibility assessments of witness testimony, including a parent’s own account of income.
- Means-tested public assistance benefits (food stamps, SNAP) cannot be counted as income under Nebraska’s Child Support Guidelines.
Why It Matters
This decision underscores the practical obstacles self-employed parents face when seeking child support modifications. While the Child Support Guidelines nominally permit testimony in lieu of tax returns and wage stubs, courts will demand credible evidence—and unverified self-prepared documents carry inherent credibility risks. The opinion signals that trial judges will closely scrutinize the consistency and documentary support underlying income claims, and appellate courts will respect those credibility judgments. For self-employed obligors, the lesson is clear: failing to maintain verifiable financial records or refusing to provide requested discovery (like bank statements) will likely doom a modification claim, regardless of whether income has genuinely declined.
The decision also clarifies a technical but important point: means-tested public benefits do not inflate the income calculation, even if a court initially missteps. More broadly, the ruling reinforces that modification is not a remedy for improvident settlement agreements or changing business fortunes—it requires proof that circumstances have materially changed in ways not foreseeable at the time of the original decree.