Harrison v. Harrison

• Citation: 949 N.W.2d 369,28 Neb.App. 837
• Decision Date: 15 September 2020
• Docket Number: No. A-19-440.,A-19-440.
• Parties: Cantrell R. HARRISON, appellee, v. Dennis R. HARRISON, appellant.
• Court: Court of Appeals of Nebraska

28 Neb.App. 837

949 N.W.2d 369

Cantrell R. HARRISON, appellee,

v.Dennis R. HARRISON, appellant.

No. A-19-440.

Court of Appeals of Nebraska.

Filed September 15, 2020.

Erik C. Klutman, of Sipple, Hansen, Emerson, Schumacher, Klutman & Valorz, for appellant.

Steven B. Fillman, of Fillman Law Offices, L.L.C., and Joseph H. Murray, of Murray Law, P.C., L.L.O., Hebron, for appellee.

Pirtle, Bishop, and Arterburn, Judges.

Bishop, Judge.

I. INTRODUCTION

In this marriage dissolution action, Dennis R. Harrison appeals the Fillmore County District Court's calculation of his child support obligation. He contends that the net profits and depreciation deductions of the parties’ equally owned businesses should not have been added to his income when calculating child support. Dennis also challenges the district court's decision to overrule his motion to reopen the case, as well as the court's order of temporary alimony, receivership fees, and temporary attorney fees. Cantrell R. Harrison attempts to cross-appeal the district court's calculation of Dennis’ child support obligation. We affirm in part, and in part reverse and remand with directions.

II. BACKGROUND

Dennis and Cantrell were married in 2002, and they have two children—a daughter born in 2003 and a son born in 2005.

During their marriage, Dennis and Cantrell established Custom Pumping Solutions, L.L.C. (CPS), with each of them owning 50 percent of the business. CPS pumps lagoon manure onto farmland for organic fertilizer. Dennis and Cantrell also each owned a 50-percent interest in C & D Leasing, L.L.C. (C & D Leasing). C & D Leasing purchases equipment and then leases it to CPS. Additionally, Dennis owned 50 percent of another business, S&H Bushwackers; Cantrell's father owned the other 50 percent. And Cantrell owns shares of stock in Stokebrand Seed, Inc. (Stokebrand Seed), a corporation owned by her family.

Cantrell filed for divorce in December 2016, and she filed an amended complaint in May 2018. In both pleadings, she alleged that she was a fit and proper person to have custody of the children and asked that the district court enter a custody and parenting time order. She also asked that child support be awarded in conformity with the Nebraska Child Support Guidelines. Cantrell sought an equitable division of the parties’ property and debts and an award of attorney fees. Dennis’ responsive pleading also asked the court to equitably divide the parties’ assets and debts and enter a custody and parenting time order.

The parties filed a joint temporary stipulation in January 2017. Pursuant to the temporary stipulation, the parties were to have joint legal custody of their children, with primary physical custody going to Cantrell, subject to Dennis’ specified parenting time. Dennis would also pay child support in the amount of $600 per month for the two children until further order of the court. The district court filed a temporary order approving the parties’ stipulation and ordering the same.

In February 2018, Cantrell filed a motion for temporary relief, alleging that Dennis was making purchases on behalf of the parties’ companies without her permission or agreement. Cantrell alleged that Dennis was "attempting to manipulate the net worth of the business assets he expects to receive by intentionally buying assets that depreciate almost instantaneously upon purchase." She was also "concerned" that Dennis was "depleting the cash assets of the marital estate that could be used to effectuate a property equalization." She asked the district court to enter a temporary order barring the purchase of assets over $5,000 without the written consent of both parties, as well as an "anti-hypothecating order" barring the sale of assets, disposal of assets, and dissipation of large amounts of cash assets of the marital estate without the written consent of both parties. In its order filed on February 13, the district court ordered, in part, that during the pendency of the action, business purchases over $10,000, with the exception of fuel bills, shall be agreed upon in writing by both parties.

In May 2018, Cantrell filed a motion for temporary spousal support. Cantrell also filed a motion for appointment of receiver, for accounting, for other relief, and for attorney fees. In this second motion, Cantrell alleged that Dennis was using funds from the parties’ companies for his personal expenses and to make a loan to his uncle, all without her authorization; he was fraudulently diverting revenue and earnings from the companies; and he was "systematically cutting" her out of CPS without authority, including changing passwords and emails, as well as firing her from her duties at CPS.

In a journal entry and order filed on July 10, 2018, the district court stated that the parties had reached an agreement on several issues. As relevant to this appeal, the order states that Cantrell withdrew her application for temporary spousal support or alimony in consideration of Dennis’ agreement that she continue to be paid her salary from CPS; the court considered the application for temporary spousal support withdrawn and ordered the continued payment of Cantrell's salary.

After a hearing on August 16, 2018, the district court filed a journal entry appointing a receiver for CPS and C & D Leasing; CPS was to deposit $7,500 with the clerk of the court to cover the receiver's expenses. Additionally, the court awarded Cantrell $5,000 in attorney fees.

On October 31, 2018, the parties entered into a mediated agreement and reached a settlement on property division issues and alimony. As relevant to this appeal, Cantrell received all interest in Stokebrand Seed. Dennis received CPS, C & D Leasing, and the parties’ marital share of S&H Bushwackers; he was to pay any indebtedness to any creditor of CPS and C & D Leasing. As an equalization, Dennis was to pay Cantrell $100,000 within 60 days of the date of the decree and $456,000 in annual installments of $38,000 each due March 1 of each year beginning in 2020; one half of the $456,000 ($228,000 total or $19,000 per year) was to be considered alimony, which would not terminate on the remarriage of Cantrell, but would terminate on the death of either party. Each party was to pay the balance of any attorney fees owed to their respective attorneys. The parties submitted the mediated agreement to the district court for approval; it was approved pursuant to the court's journal entry and order dated November 8, 2018, wherein the parties were ordered and directed to carry out the terms of the agreement. The parties did not resolve the issues of child custody, child support, and related matters. Those issues remained scheduled for trial at the end of November.

Trial took place on November 30, 2018. The court was informed that the parties had agreed to joint legal custody of their children, with physical custody going to Cantrell. The parties also agreed that Dennis’ parenting time would include alternating weekends. Additional parenting time issues, including summer and holiday parenting time, were still at issue. Child support and related matters were also at issue. We will discuss the trial evidence relevant to the errors assigned in our analysis below.

A partial journal entry and decree of dissolution of marriage was filed on December 21, 2018; some matters remained under advisement. As relevant to this appeal, the district court awarded the parties joint legal custody of their children, with physical custody awarded to Cantrell; parenting time and child support were taken under advisement, as was any determination related to the parties’ obligations to provide health insurance for the children. The court ordered that Cantrell was entitled to claim the parties’ daughter, and Dennis was entitled to claim the parties’ son, as an exemption on income tax returns each calendar year; when there was only one exemption remaining, the parties were to alternate years. A copy of the parties’ mediated agreement, which was approved by the court on November 8, was attached and incorporated into the decree, and the parties were ordered and directed to carry out the terms of the agreement. Additionally, the court ordered that "[a]ll unsatisfied temporary orders of this Court entered during the pendency of this action shall survive the entry of this decree ...," specifically the obligation for payment of attorney fees entered on August 16, continuation of Cantrell's salary entered on July 10, and payment of the expenses of the receiver entered on August 16 "shall remain in full force and effect until satisfied"; "[i]n the case of the order providing for continuation of [Cantrell's] salary, that shall terminate upon entry of a final decree herein."

On January 14, 2019, Dennis filed a motion to reopen the case "and present evidence as to the sole issue of [straight-line] depreciation of the equipment" of CPS and C & D Leasing for purposes of calculating child support. Cantrell filed an objection to the motion. After a hearing, the district court denied Dennis’ motion to reopen evidence.

A final journal entry and decree of dissolution of marriage was filed on April 11, 2019. The district court noted that on November 5, 2018, it had approved the parties’ mediated agreement resolving all pending issues with respect to property distribution, debt allocation, equalization, alimony, and attorney fees and that the terms of such agreement were to be included in the final decree of dissolution entered herein. The court reiterated its award of joint legal custody, with physical custody awarded to Cantrell. This time, however, the court attached and incorporated a parenting plan that specified Dennis’ parenting time and established holiday and summer parenting time.

Additionally, as relevant to this appeal, the district court ordered Dennis to pay Cantrell child support in the amount of $2,553 per month for the two children.

When determining Dennis’ income for child support purposes, the district...