Barry v. Lindner

Citation75 P.3d 388
Decision Date29 August 2003
Docket NumberNo. 38177.,38177.
PartiesJeffrey A. BARRY, Appellant, v. Robyn LINDNER, Respondent.
CourtSupreme Court of Nevada

75 P.3d 388

Jeffrey A. BARRY, Appellant,
Robyn LINDNER, Respondent

No. 38177.

Supreme Court of Nevada.

August 29, 2003.

75 P.3d 389
Jeffrey Friedman, Reno, for Appellant

Skinner, Watson & Rounds and Gregory S. Skinner, Reno, for Respondent.




As the primary issues of this appeal, we consider whether telephonic testimony is permitted at trial and whether the district court correctly imputed income to Jeffrey Barry. We hold that telephonic testimony is only permissible under special circumstances and conclude that the district court did not abuse its discretion when it imputed income to Barry.


On May 16, 1993, Barry and Robyn Lindner were married. The following year, they had a son.

In 1977, Barry created his own company, Savings and Development Corporation, which developed insurance programs for credit cards. Between 1977 and 1988, Savings and Development was very successful, as it earned over a million dollars. In the early 1990s, Barry liquidated and transferred all of Savings and Development's assets to Gresham Group, Inc. Gresham Group agreed to compensate Savings and Development on the operation of the business.

Barry is the sole owner of Destra Risk Management Limited, another corporation he created before his marriage. In early 1993, Savings and Development assigned its compensation from Gresham Group to Destra. Between 1993 and January 2000, Gresham Group paid Destra $716,955.32. During

75 P.3d 390
the marriage, Barry used Destra's income to pay the household and community expenses, approximately $1,500 a month

When Barry and Lindner married, Lindner was working part-time as a personal trainer. Lindner quit working after she became pregnant, and after their son was born she was his primary caregiver. In 1997, Lindner returned to working part-time as a personal trainer.

On March 8, 2000, Lindner filed a complaint for divorce. After Barry accepted service of the divorce complaint, he went to Europe. Barry claims that before he went to Europe he met Lindner and her attorney, and following the meeting he was under the impression that Lindner would not file any documents while he was in Europe.

On March 20, 2000, Lindner filed a motion requesting temporary child custody, child support, and spousal support. Lindner also requested exclusive possession of the marital residence, attorney and accountant fees, and costs. Before Lindner filed her motion, Barry signed an Acceptance of Service, indicating that he received a copy of Lindner's motion. On April 5, 2000, Lindner requested submission of her motion and served Barry with a copy of the request. On April 12, 2000, Lindner's attorney filed an affidavit of service, stating that on March 20, 2000, Barry was faxed a letter advising him that he had ten days to respond to Lindner's motion. Barry did not file a response to Lindner's motion.

On April 19, 2000, the district court entered a default order granting Lindner's motion. The district court granted Lindner temporary legal and physical custody of the couple's son, and ordered that Barry would have reasonable visitation rights to be determined at mediation. The district court ordered Barry to pay $500 a month in temporary child support, to pay $4,000 a month in temporary spousal support, and to provide medical insurance for Lindner and their son. The district court also ordered Barry to produce all his financial records, and to pay Lindner $7,000 for preliminary attorney fees and $5,000 for interim accountant fees.

On May 11, 2000, Barry filed, among other things, a motion to set aside the default order. The district court denied the motion. Thereafter, Barry filed a motion for visitation, claiming that Lindner had denied him visitation with their son from the time the parties separated. In denying Barry's motion, the district court noted that Barry was not granted temporary visitation because Barry had failed to file an opposition to Lindner's motion requesting temporary child custody and allowances or to request visitation. The district court then ordered that Barry be awarded reasonable visitation rights to be determined through mediation with the Washoe County Family Mediation Program.

Before trial, the district court appointed a special master to review Barry's financial status because Lindner claimed that Barry was lying to the district court regarding his finances. In his report, the special master noted that Barry's business transactions and claimed present financial status were unusual, but stated that there was no evidence of fraudulent concealment or misrepresentation. Because of Barry's lack of financial records, the special master noted that Barry's financial status was "full of flags."

A two-day bench trial commenced on March 29, 2001. At trial, Barry claimed that he was destitute. He testified that at various times in 2000, he worked as a consultant, receiving a total of $16,000 for consulting. Barry claimed that he had no other income, and that his income from Destra was his separate property.

Barry claimed that he borrowed $375,000 from Glovill Enterprises, which is incorporated in Panama and located in Switzerland. Barry was unable to produce any documentation evidencing Glovill's existence. He explained that Carlos "Tony" Bauman, his friend and business partner, was his only contact with Glovill.

Barry produced three promissory notes that he signed for the Glovill debt: $150,000 on January 20, 1995; $125,000 on April 3, 1996; and $100,000 on January 27, 1997. Barry explained that the loans were made based on his personal reputation, as he was not required to provide any collateral for the

75 P.3d 391
loans. Barry signed each of the promissory notes, which identified Glovill as the creditor and set forth the terms of repayment. On January 20, 2000, the repayment terms for the three promissory notes were restructured. The restructuring document stated that Lindner was jointly liable for the debt, but only Barry, not Glovill or Lindner, signed the document. Barry testified that he paid Glovill $16,000 in accordance with the terms of the restructuring document, but Barry could not produce any documentation that the payment had been made. Barry claimed that he assigned Destra's income from Gresham Group to Glovill, and had the payments sent to Bauman's address. Barry testified that he owed Glovill $583,504, including interest

Barry explained that Glovill had the money—Brazilian currency—delivered to a company in Brazil, and that Bauman would call and confirm the delivery; thus, no receipts or documents were generated. Barry testified that Lindner was aware that he was borrowing money in Europe to be used for developing a business plan in Brazil. Barry maintained that Lindner knew that the community had borrowed the money, but he was not sure whether she knew the amount or that Glovill was the lender.

Thus, Barry claimed that the Glovill debt was a community debt. Additionally, Barry claimed that his credit card debt and the $18,000 he borrowed from his mother for legal expenses were community debts.

On the other hand, Lindner maintained that she did not know about the Glovill debt. Lindner explained that in 1996, she and Barry began having marital problems and she saw an attorney. The attorney prepared a marital settlement agreement outlining each party's assets and debts, but the Glovill debt was not included, as she was not aware of it. After Lindner showed Barry the marital settlement agreement, they stopped the divorce proceedings and attended marriage counseling. Barry claimed that he did not see the marital settlement agreement until trial.

Lindner testified that Barry paid all the community expenses during the marriage. She maintained that she did not know much about Barry's work, including his income. But, in July 1999, she discovered several of Barry's credit card bills, showing that he stayed in expensive hotels and had expensive dinners. Because she did not know Barry's income and because Barry claimed that he had no income but still had various expenditures, Lindner requested the district court to impute income to Barry. She claimed that Barry spent approximately $40,000-50,000 annually on his personal expenditures and spent an equivalent amount on the community expenses, totaling $100,000.

Regarding their son, Lindner and Barry agreed that Barry should have visitation rights. Because Barry had been absent from their son's life for a year, Lindner opined that Barry should have supervised visitation until their son felt comfortable with Barry. Barry, however, disagreed with supervised visitation, but agreed that his visitation rights should gradually increase in time.

After trial, the district court entered its decision. The district court first denied Barry's request for spousal support, finding that although Barry was not currently employed —notwithstanding his income from consulting—Barry had earned a comfortable living in the past. However, the district court granted Lindner's claim for spousal support, finding that Lindner quit working to become their son's primary caregiver. Although Barry claimed that he had no income, the district court imputed an annual income of $35,000 to Barry based on his previous income and continued expenditures. Thus, the district court awarded Lindner $350 a month in spousal support for thirty months.

The district court next addressed each party's request for attorney fees. The district court found that neither party presented any evidence that they could not present their case "without an award of resources to do so." The district court also found that there was no evidence that either party was guilty of misconduct during the divorce proceedings. The district court further found that Barry's loan from his mother for legal expenses was not a community debt.

The district court next addressed the issue of the Glovill debt. The district court first...

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