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Geise v. Geise

Court of Appeals of Nebraska

December 10, 2013

Amy Allison Geise, appellant,
v.
Shane Glenn Geise, appellee.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Sarpy County: David K. Arterburn, Judge.

Christopher A. Vacanti, of Vacanti Shattuck, for appellant.

No appearance for appellee.

Irwin, Pirtle, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Pirtle, Judge.

INTRODUCTION

Amy Allison Geise appeals from the amended decree of dissolution of marriage entered by the district court for Sarpy County on August 28, 2012. She asserts the district court incorrectly calculated Shane Glenn Geise's income for the purposes of determining the correct amount of child support and awarding appropriate alimony. For the reasons that follow, we affirm.

BACKGROUND

Amy and Shane were married February 3, 2000. Two children were born of the marriage, and at the time of the decree, they were 12 and 8 years old. Amy filed her complaint for dissolution of marriage on April 13, 2009. Amy sought sole custody of the two minor children and child support.

Shane was served with summons and a copy of Amy's complaint on April 20, 2009. On April 23, Shane filed his answer and cross-complaint.

On July 27, 2009, an order was entered awarding Amy temporary custody of the two minor children. The order required Shane to pay all expenses of the residence, including the rental or mortgage payments; all utilities, which included telephone, gas, electrical, and waste disposal; and an additional $200 per week. On August 5, an amended order for temporary allowances was entered. Shane was ordered to pay child support of $1, 000 per month, and his obligation to pay the utilities of the residence ended in August. Shane continued to pay for the mortgage or rent on the marital property and paid at least the monthly minimum owed on any credit cards held jointly by the parties. Amy was ordered to pay the utility costs for the marital home commencing September 1.

Amy issued discovery on or about April 27, 2009. On October 8, 2010, Amy filed a motion to compel, alleging Shane refused to provide the discovery responses. The motion was granted, and Shane was given 2 weeks to complete discovery.

Amy filed a motion for sanctions on November 18, 2010, and sought an award of attorney fees and a determination by the trial court to limit Shane's ability to submit evidence at the time of trial. The court sustained the motion and ordered Shane to provide all credit card statements relevant to his income through his self-employment by December 3, 2010. The court scheduled a followup hearing on the motion for sanctions for December 6. The judge's minutes indicate the followup hearing was canceled per agreement of counsel.

Trial was held on February 2 and 7, 2012. Issues relating to the property distribution were settled by the parties prior to trial. Issues before the trial court included child custody and visitation, calculation of Shane's monthly income, child support, and alimony. A decree of dissolution of marriage was entered on April 26, based on the judge's letter with his findings dated February 16, 2012. Amy timely filed a motion for new trial and a motion to alter or amend the judgment on May 3. Hearing was held on June 18, and an order was entered generally overruling Amy's motions, except as related to submitting a new decree incorporating some information the trial court included in the February 16 letter that was not included in the original decree.

The amended decree of dissolution of marriage was entered August 28, 2012. Only the award of child support and the award of alimony are at issue in this appeal. Relevant to those issues, the trial court determined Shane was self-employed and the sole owner of a corporation known as Precision Lighting and Electric, LLC. Amy asserted the court should consider Shane's personal expenses, paid for through the business as Shane's personal income for the purposes of determining child support. Shane testified that some personal expenses are paid for through the business. Shane testified that he uses a business credit card, he carries insurance for himself and the children through the business, and the business pays rent to his parents to operate on their property. He also testified that the business pays for his cell phone and the fuel, licensing, and insurance for the business vehicle he drives.

Shane's sister, Cori Lund, is the bookkeeper for the business and for Shane's personal accounts. Lund testified that Shane's use of the business credit card is monitored and recorded in the business' "QuickBooks" system. She stated that the business calculates what expenses are considered to be Shane's personal expenses, that they are categorized in the "owner dividend" portion of the program, and that the owner dividend total is reported as income at the end of the year. She testified that Shane pays his parents for the use of their land. Shane personally pays rent for the portion of the property on which he resides, and the business pays rent for the business use of the property. Lund testified that the business pays for Shane's family health insurance plan and that the full amount of the plan is added to his W-2 form at the end of the year.

The trial court determined there was insufficient evidence to allow a line-by-line analysis of whether the corporate payment of allegedly personal expenses occurred. The trial court determined that neither party was a qualified expert to testify on this issue, nor was Lund, who is Shane's sister and the bookkeeper for his corporation. The trial court determined Amy failed to meet her burden to prove the income reported in Shane's tax returns was inaccurate. The trial court used an average of Shane's taxable income to calculate the appropriate awards of child support and alimony.

The trial court awarded child support for two children at $1, 375.52 and one child at $943.72 per month. The court ordered alimony of $1, 500 per month for 12 months, $1, 000 per month ...


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