Noordam v. Noordam, No. A-07-853 (Neb. App. 8/12/2008)
| Decision Date | 12 August 2008 |
| Docket Number | No. A-07-853.,A-07-853. |
| Parties | KAREN L. NOORDAM, APPELLEE AND CROSS-APPELLANT, v. GARY L. NOORDAM, APPELLANT AND CROSS-APPELLEE. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge. Affirmed.
James D. Sherrets and Jason M. Bruno, of Sherrets & Boecker, L.L.C., for appellant.
Benjamin M. Belmont and Anthony W. Liakos, of Brodkey, Cuddigan, Peebles & Belmont, L.L.P., for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Gary L. Noordam appeals, and Karen L. Noordam cross-appeals, from an order modifying child support and custody. The numerous issues raised on appeal primarily center on the child support calculation. Although we used different incomes for the parties than the district court used, we find no abuse of discretion in its calculation of support in this high income case. We further conclude that any error by the court in limiting Gary's discovery was harmless. We find no abuse of discretion by the district court in awarding Karen attorney fees, in implicitly denying Gary's counterclaims, or in denying Gary's posttrial motions. Accordingly, we affirm the district court's judgment.
In May 2000, the district court dissolved the parties' marriage and awarded them joint custody of their three children: a son, born in October 1985; a daughter, E.N., born in November 1988; and another daughter, born in June 1991. The court found that the parties entered into a settlement agreement containing provisions for such things as custody of the children, child support, medical care, alimony, property division, and marital debts. The court approved the settlement agreement which provided that Karen be the possessory parent of the daughters and that the parties equally share possession of the son. The court ordered Gary to pay $1,550 in child support for the three minor children. The parenting plan attached to the decree stated in pertinent part: "[T]he possessory preference expressed by a child who is 14 years of age or older shall determine the placement of said child unless the preference is the result of avoidance of appropriate discipline or is detrimental to the welfare and best interests of the child." Pursuant to the parties' agreement, the court ordered Gary to pay: (1) 75 percent of any uninsured medical and dental expenses for the children, (2) alimony of $1,100 per month for 48 months, and (3) marital debt of $572,357.96.
On October 16, 2003, the parties filed a stipulation with the court to modify the decree, which the court approved. The stipulation stated that the parties disputed the income earned by the other party and that they agreed to modify child support as follows:
[Gary] shall pay to [Karen] the sum of $1,000.00 per month for the support of three (3) children as provided in the Decree of Dissolution. At such time as [the son] attains the age of majority, child support shall be $700.00 per month. At such time as only one child remains a minor, the child support shall be $500.00 per month.
The stipulation further provided that if Gary entered into a contract to sell his house and if he was current on his alimony and child support obligations at the time of closing, Karen agreed to sign a release of the lien on Gary's house within 3 days of being presented with the release and prior to closing. The stipulation was labeled exhibit A. Exhibit B was a document titled "Karen Noordam Medical Expenses 2003 thru 2005" with a list of expenses, presumably all for the children, totaling $1,316.77. Exhibit C was the "Escrow Agreement," which stated that the parties were in a dispute regarding the payment of certain medical expenses of the children and that they entered into an agreement to resolve the dispute which required the establishment of an escrow to hold certain funds until the parties mutually agreed to a disbursement of the funds or until a court ordered disbursement. Gary agreed to deposit $2,052.79 with a specified title company for placement in an interest-bearing account.
On March 28, 2006, Karen filed a complaint to modify child support. On January 12, 2007, Gary filed an amended answer and counterclaim. His counterclaim asserted (1) that Karen's complaint was frivolous and made in bad faith; (2) that Gary's child support obligation should be adjusted downward because E.N. had been living with him since June 2005 and Karen's earning capacity had substantially increased; (3) that Gary was entitled to set off any sums due to Karen because Karen had (a) failed to provide 25 percent of unreimbursed medical expenses and was $1,714 in arrears to Gary, (b) refused to release her liens in a timely manner, and (c) "in bad faith caused Gary to deposit [$2,052.79] into escrow by asserting that Gary owes her unreimbursed medical expenses in an attempt to delay and impede the sale of his property"; and (4) that custody should be modified because E.N. desired to live with Gary.
On March 28, 2007, the court conducted a trial. E.N. testified that from June 1, 2005, to the time of trial she had "lived on and off' at each of the parties' homes. She testified that she left Karen's home in the summer following her sophomore year, lived with Gary until the end of her junior year, then lived with Karen until the beginning of her senior year, and had been living with Gary ever since. But E.N. later testified that she lived with Karen for "[m]aybe half of March" 2006 and that she stayed there "[u]ntil the end of summer." The parties' testimonies establish that in May 2005 (according to Gary) or June 4 (according to Karen), E.N. moved in with Gary where she remained until early-February 2006 (Karen) or February or March (Gary). E.N. lived with Karen for a few months, but then returned to Gary's home in July 2006 (Gary) or on August 11 (Karen).
On May 17, 2007, the court entered its order, finding a material change in circumstances. The court granted Gary's request for a change in possession of E.N. The court ordered Gary to pay child support of $2,350 for the period from April 1, 2006, to September 1. Thereafter, Gary's support obligation would be $755. Once E.N. attained the age of majority, Gary's support obligation for the remaining daughter would be $1,785. The court awarded Karen $9,000 in attorney fees.
Gary filed a "Motion For New Trial, Motion to Alter or Amend, Motion to Reconsider, and Request for Hearing Date," which the court denied. Gary timely appeals, and Karen cross-appeals.
Gary assigns 37 errors. He alleges, consolidated and restated, that the court erred in (1) determining child support and not deviating from the guidelines, (2) determining Karen's income, (3) applying his support obligations retroactive to April 1, 2006, (4) including the income of Gary's wife in the child support calculation, (5) disregarding Karen's stipulation to Gary's previous support obligations, (6) modifying the order when Karen failed to meet her burden of proof, (7) preventing discovery and quashing subpoenas regarding Karen's additional sources of income and her financial condition, (8) failing to grant Gary's motion to compel in its entirety, (9) failing to enter judgment in Gary's favor on his counterclaims, (10) awarding Karen attorney fees and failing to award Gary such fees, (11) failing to admit an exhibit in its entirety, and (12) failing to grant Gary's motion for new trial and motion to alter or amend.
On cross-appeal, Karen alleges that the court erred in determining Gary's child support obligation.
Modification of a dissolution decree is a matter entrusted to the discretion of the trial court, whose order is reviewed de novo on the record, and which will be affirmed absent an abuse of discretion by the trial court. Schwartz v. Schwartz, 275 Neb. 492, 747 N.W.2d 400 (2008). An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.
Generally, the control of discovery is a matter for judicial discretion. Gallner v. Hoffman, 264 Neb. 995, 653 N.W.2d 838 (2002).
On appeal, a trial court's decision awarding or denying attorney fees will be upheld absent an abuse of discretion. Schwartz v. Schwartz, supra.
A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Poppe v. Siefker, 274 Neb. 1, 735 N.W.2d 784 (2007).
A motion to alter or amend a judgment is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Russell v. Clarke, 15 Neb. App. 221, 724 N.W.2d 840 (2006).
Gary argues that the district court greatly understated Karen's income and that it erred in determining his income. On cross-appeal, Karen challenges the amount of child support the court ordered Gary to pay. She argues that it is not clear how the court determined Gary's income to be $241,000 and points out that Gary's earnings consistently increased.
In general, child support payments should be set according to the Nebraska Child Support Guidelines. State on behalf of A.E. v. Buckhalter, 273 Neb. 443, 730 N.W.2d 340 (2007). The guidelines provide that in calculating child support, the court must consider the total monthly income, defined as the income of both parties derived from all sources, except all means-tested public assistance benefits and payments received for children of prior marriages. State on behalf of A.E., supra. The district court seemed to recognize the same during a November 2006 hearing when the court stated, "[T]he child support guidelines are based on income from all sources." But the court immediately followed that statement by saying, "Income from...
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