## Facts

- A 1999 dissolution decree ordered the husband to pay the wife $2,000 per month in alimony for 120 months; the court found the husband’s gross monthly income far exceeded the wife’s.
- In 2005, the husband filed a complaint to reduce alimony, alleging decreased income and increased income for the wife.
- After a hearing in December 2005, the district court denied modification in January 2006 for failure to prove a material and substantial change in circumstances; the husband did not appeal.
- In March 2006, the husband filed a second complaint to modify alimony.
- Before the second evidentiary hearing, the wife sought to exclude evidence that was presented, or could have been presented, at the first modification proceeding; the district court limited evidence to changes occurring after the first hearing date.
- At the second hearing (October 2007), evidence included the husband’s asserted financial and health difficulties and the wife’s reliance on alimony in making business commitments.
- The district court again denied modification; the Court of Appeals affirmed; the Supreme Court of Nebraska granted further review.

## Issues

1. In a successive alimony-modification action after a prior unsuccessful attempt, what is the proper baseline for measuring a “material and substantial change in circumstances”: the original decree or the most recent denial?
2. Did the husband prove a material and substantial change in circumstances occurring after the first modification denial that warranted a reduction in alimony?

## Decision

- The Supreme Court of Nebraska affirmed the judgment denying modification.
- The court held that, following a prior unsuccessful modification attempt, the moving party must show a material and substantial change in circumstances since the most recent denial.
- The court approved limiting the evidence to post-first-hearing changes to prevent relitigation of matters decided, or that could have been raised, in the earlier proceeding.
- The husband failed to prove a qualifying change after the first denial; his circumstances were largely unchanged for purposes of modification.

## Legal Principles

- An alimony award may be modified only upon proof of a material and substantial change in circumstances.
- When a party seeks modification after a prior unsuccessful modification attempt, the relevant comparison point is the circumstances existing at the time of the most recent denial, not the original dissolution decree.
- Finality doctrines (including res judicata and collateral estoppel) bar relitigation of issues decided in the prior modification proceeding and matters that could have been litigated then.
- A trial court may limit proof in a successive modification action to changes occurring after the prior modification hearing or denial.

## Conclusion

The court refused to reduce alimony because a party who previously failed to obtain modification must show a new, material change occurring after the last denial, and the husband’s evidence largely revisited conditions that existed or were available to litigate in the earlier modification proceeding.


Metcalf v. Metcalf, 278 Neb. 258, 769 N.W.2d 386 (Neb. 2009)