Yost v. Yost ( 2022 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
YOST V. YOST
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
JEFFERY R. YOST, APPELLANT AND CROSS-APPELLEE,
V.
SHELLEY A. YOST, NOW KNOWN AS SHELLEY A. BAXTER, APPELLEE AND CROSS-APPELLANT.
Filed June 7, 2022. No. A-21-479.
Appeal from the District Court for Otoe County: JULIE D. SMITH, Judge. Affirmed as
modified.
Donald A. Roberts and Justin A. Roberts, of Roberts Law, L.L.C., for appellant.
Gregory D. Barton, of Barton Law, P.C., L.L.O., for appellee.
PIRTLE, Chief Judge, and BISHOP and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Jeffery R. Yost appeals from portions of the Otoe County District Court’s order governing
his motion to find Shelley A. Yost, now known as Shelley A. Baxter, in contempt for failing to
follow the court’s amended dissolution decree and Shelley’s objection to his management of a
business account following the court’s entry of the decree. Shelley cross-appeals from portions of
the court’s order governing her objections to Jeffery’s management of the business account. For
the reasons set forth herein, we affirm as modified.
II. STATEMENT OF FACTS
On June 10, 2019, the Otoe County District Court entered a decree dissolving Jeffery and
Shelley’s 29-year marriage. The court divided the parties’ marital property and awarded Shelley
$1,400 in monthly alimony. As relevant to this appeal, the court awarded the marital home to
-1-
Jeffery along with an office, shop, and certain farmland located on that property; awarded shares
in the family owned business known as B-Y Excavating, Inc., to Jeffery subject to his obligation
to liquidate certain business assets, deposit the proceeds in a designated checking account located
at First Nebraska Bank (the Business Account), pay certain authorized expenditures, and then
equally divide the net proceeds with Shelley; instructed Shelley to sell a certain motorcycle and
baseball cards and divide the proceeds with Jeffery; and required Jeffery to pay Shelley an
equalization payment in the amount of $234,176.75.
Shelley timely filed a motion for new trial and motion to alter or amend the decree.
Following a hearing on the motion, the court ordered a new trial on the sole issue of how certain
tax liabilities owed by Shelley should be treated in the marital property division and amended the
decree by (1) prohibiting Jeffery from continuing to pay his $175,000 salary from the Business
Account and (2) finding that Jeffery’s payment of attorney fees from the Business Account was
unauthorized and included the unauthorized $56,152.98 payment as a “marital asset awarded to
[Jeffery] on his side of the balance sheet.” Following the new trial on the issue of how to treat
Shelley’s tax liability, the court entered a final amended decree on October 4, 2019, which adopted
the prior decree, in part, but added a provision requiring Jeffery to pay Shelley $46,650 which
represented Shelley’s portion of prior business income taxes. After factoring in the $56,152.98
marital asset assigned to Jeffery relating to his unauthorized payment of attorney fees, the court
recalculated Jeffery’s court-ordered equalization payment, revised the payment obligation to
$262,253.24, added the $46,650 tax obligation, and ordered Jeffery to pay Shelley a final
equalization payment of $308,793.24. At the time the amended decree was entered, Jeffery
remained subject to his future obligation to liquidate the business assets, deposit the proceeds in
the Business Account, and split the proceeds with Shelley. Shelley remained obligated to sell a
motorcycle and baseball cards and split the proceeds with Jeffery. Neither party appealed from the
amended decree despite language in the decree stating that it was a final order.
On October 23, 2019, Jeffery filed a complaint to modify the alimony award. In December,
Jeffery filed a motion to show cause why Shelley should not be held in contempt for leaving the
home in a damaged condition, for improperly removing a shed from the property, and for failing
to sell a motorcycle and baseball cards in the manner specified in the decree and divide the
proceeds with him. On May 14, 2020, Shelley filed a motion to compel Jeffery to submit a final
accounting from the Business Account following Jeffery’s court-ordered sale of assets. The court
ordered Jeffery to file a final accounting by July 10. Following Jeffery’s filed accounting, on July
20, Shelley filed a formal objection to the accounting claiming Jeffery had dissipated marital assets
in connection with his court-ordered management of the Business Account.
Over 3 days in September, November, and December 2020, the court held a trial on
Jeffery’s complaint to modify, Jeffery’s motion for an order to show cause, and Shelley’s motion
objecting to Jeffery’s final accounting of the Business Account. On January 30, 2021, the court
entered an order finding that the alimony award should be eliminated; that Jeffery had improperly
dissipated certain funds from the Business Account; that Jeffery was entitled to a credit for certain
boat motors which should not have been treated as liquidated business assets; that Shelley was in
contempt for writing profanity on the staircase of the home but was not otherwise in contempt for
other property damage; that Shelley was obligated to reimburse Jeffery $9,000 representing the
-2-
value of the shed she was not authorized to remove; and that Shelley was not in contempt for
failing to sell the motorcycle and baseball cards as instructed but awarded the cards to Jeffery.
Following the entry of the court’s order, Shelley timely filed a motion for a new trial and
to alter or amend the judgment arguing, among other things, that the court erred in failing to include
additional dissipated funds in its calculation of the Business Account. On May 16, 2021, the district
court amended its January 30 order, in part, finding that there were additional funds dissipated by
Jeffery in connection with his use of the Business Account and recalculated Jeffery’s payment
obligation to Shelley. Jeffery has appealed, and Shelley has cross-appealed, from the court’s May
16, 2021, order.
III. ASSIGNMENTS OF ERROR
Jeffery’s assigned errors, renumbered and restated, fall into two categories. The first
category relates to the court’s findings governing Jeffery’s motion to find Shelley in contempt for
violating the amended decree. As to that portion of the order, Jeffery assigns that the court abused
its discretion in failing to hold Shelley in contempt of court for (a) causing smoke and paint damage
to the property awarded to Jeffery; (b) removing property from the marital home awarded to him
including (i) a fabricated shed, (ii) blinds and mirrors, and (iii) a shop heater; (c) failing to properly
administer the sale of a Honda motorcycle; (d) failing to sell the baseball cards as ordered by the
court; and (e) that the court erred in its findings as to the value of the shed and in ordering Shelley
to pay that value rather than ordering her to return it.
The second category of assigned errors relates to the court’s findings governing Shelley’s
objection to Jeffery’s final accounting of the Business Account in which Jeffery contends that the
court erred in (a) finding Shelley’s objections to Jeffery’s final accounting of the Business Account
were timely; (b) finding Jeffery improperly dissipated assets from the Business Account by (i)
paying his personal health insurance premium, (ii) purchasing a $12,000 pickup he was required
to sell in the decree, and (iii) paying unauthorized attorney fees to Dvorak Law for its
representation of B-Y in a separate civil suit against Shelley; and (c) in failing to give Jeffery credit
against his payment obligation for the sale of a boat that was separately awarded to him but sold
as part of the business auction and the proceeds deposited in the Business Account.
In her cross-appeal, Shelley’s assigned errors all relate to her objections governing the final
accounting of the Business Account. She asserts that the district court erred in (a) allowing Jeffery
to retain, without any offset, the benefit of $132,153.22 in “Payroll Expenses” consisting of
Jeffery’s salary in excess of $115,000 paid to Jeffery from the Business Account between
November 2018 and August 2019 and the payment of Jeffery’s payroll taxes; (b) failing to order
Jeffery to pay Shelley an amount paid from the Business Account to the Lutz accounting firm; (c)
failing to order Jeffery to pay Shelley certain other miscellaneous funds paid from the Business
Account which were used to pay Jeffery’s recurring personal monthly bills; (d)refusing to place a
value on the Business Account in order to assess her entitlement to the residue; and (e) failing to
order Jeffery to pay Shelley 50 percent of the residue in the Business Account.
IV. STANDARD OF REVIEW
In a civil contempt proceeding where a party seeks remedial relief for an alleged violation
of a court order, an appellate court employs a three-part standard of review in which the trial court's
-3-
(1) resolution of issues of law is reviewed de novo, (2) factual findings are reviewed for clear error,
and (3) determinations of whether a party is in contempt and of the sanction to be imposed are
reviewed for abuse of discretion. Becher v. Becher, 311 Neb. 1, 970 N.W.2d 472 (2022).
V. ANALYSIS
1. EFFECT OF JEFFERY’S PAYMENT
Before addressing the merits of Jeffery’s appeal and Shelley’s cross-appeal, we first
address Shelley’s argument that the issues argued by Jeff were rendered moot by his voluntary
payment of the January 2021 judgment against him. Shelley contends that because many of Jeff’s
assignments of error are based on the court’s resolution of issues from the January 2021 order and
because Jeffery made payment in response to that order, his assigned errors relating to that payment
obligation should be rendered moot and we need not consider them further.
Generally, an appellant may not voluntarily accept the benefits of part of a judgment in the
appellant’s favor and afterward prosecute an appeal or error proceeding from the part that is against
the appellant. Liming v. Liming, 272 Neb. 534, 723 N.W.2d 89 (2006). But the acceptance of
benefits rule has exceptions. Id. For instance, a spouse who accepts the benefits of a divorce
judgment does not waive the right to appellate review under circumstances where the spouse's
right to the benefits accepted is conceded by the other spouse, the spouse was entitled as a matter
of right to the benefits accepted such that the outcome of the appeal could have no effect on the
right to those benefits, or the benefits accepted are pursuant to a severable award which will not
be subject to appellate review. Id.The record here reveals that following the entry of the January 2021 order, Shelley filed a
motion to alter or amend which tolled the time for the filing of an appeal from that order.
Thereafter, following the entry of the order on the motion to alter or amend, Jeffery appealed.
However, prior to his appeal, Jeffery made various payments on his multiple court-ordered
obligations. According to Shelley, these actions should be considered a voluntary acceptance of
the ultimate judgment and prohibit prosecution of his appeal. Whether some of Jeffery’s payments
could be considered a voluntary acceptance of the benefit of a prior judgment is a matter we need
not decide because, as we explain in the next section of the opinion, we reject each of Jeffery’s
assignments of error, and resolution of this argument is not necessary to our disposition of this
appeal.
2. JEFFERY’S APPEAL
Jeffery’s appeal contains two categories of assignments of error. The first relates to issues
regarding the district court’s failure to hold Shelley in contempt. The second relates to Jeffery’s
accounting of the sale of certain business assets and subsequent deposit of the proceeds into the
Business Account.
(a) Contempt
Jeffery argues that the court abused its discretion (i) in failing to hold Shelley in contempt
for property damage to the marital home; (ii) for removing property from the marital home which
had been awarded to him in the dissolution decree; (iii) for failing to sell the Honda motorcycle in
a commercially reasonable manner; (iv) for failing to make reasonable efforts to sell the baseball
-4-
cards as ordered in the original and amended decrees, and (v) in ordering Shelley to pay Jeffery
$9,000 for the shed and not ordering that she return it.
Civil contempt proceedings are instituted to preserve and enforce the rights of private
parties to a suit when a party fails to comply with a court order made for the benefit of the opposing
party. McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018). A court's continuing
jurisdiction over a dissolution decree includes the power to provide equitable relief in a contempt
proceeding. Id. Contempt proceedings may both compel obedience to orders and administer the
remedies to which the court has found the parties to be entitled. Id. Where a situation exists that is
contrary to the principles of equity and which can be redressed within the scope of judicial action,
a court of equity will devise a remedy to meet the situation. Id.Civil contempt requires willful disobedience as an essential element. Id. “Willful” means
the violation was committed intentionally, with knowledge that the act violated the court order. Id.If it is impossible to comply with the order of the court, the failure to comply is not willful. Id.Willfulness is a factual determination to be reviewed for clear error. Id. Outside of statutory
procedures imposing a different standard or an evidentiary presumption, all elements of contempt
must be proved by the complainant by clear and convincing evidence and without any
presumptions. Id.(i) Property Damage to Marital Home
Jeffery first argues that the district court erred in failing to hold Shelley in contempt for
smoke and paint damage she caused to the marital home in violation of the original and amended
decrees which required her to leave the premises in good condition and not cause property damage.
This claim stems from the district court's October 14, 2019, amended decree which
specified, in relevant part:
[Shelley] has been on notice since June 10, 2019, that [Jeffery] was awarded the marital
home. . . . [Shelley] should vacate the premises no later than October 20, 2019. [Shelley]
should give notice through her attorney to [Jeffery’s] attorney on the date that she vacates
the premises. [Shelley] should leave the premises in good condition and not cause any
property damage. . . . Any items which are fixtures (i.e. items permanently attached to the
structure or which cannot be removed by simply unplugging the item) must remain with
the property, including but not limited to all remodeling performed by Magee Remodel,
Inc. [Shelley] should not remove anything from this real property not specifically awarded
to her in this Decree.
At the contempt hearing, Jeffery testified that there was smoke damage in the master
bedroom and the walls were poorly painted two different colors. In furtherance of his claim, Jeffery
provided photographic evidence depicting the smoke damage and called an expert to testify as to
its possible cause as well as the cost to repair the damage. The expert stated that the smoke damage
appeared to be caused by candles or a fire outside of the master bedroom which occurred when the
master bedroom door was open. Jeffery testified that the fire damage was likely caused by
Shelley’s use of a firepit during a November 2018 party. Shelley did not dispute having a party in
November 2018 and using the firepit during that time. The district court found that, because the
smoke damage likely occurred prior to June 2019, the date Shelley was first placed on notice
-5-
Jeffery would be awarded the home, and prior to the October 4, 2019, final decree, Jeffery failed
to prove that Shelley willfully or maliciously violated the decree. We agree.
Based on the record, including both parties’ statements regarding the likelihood that the
smoke damage occurred in November 2018, we find no clear error in the court’s factual
determination that the smoke damage occurred prior to the entry of the original June 2019
dissolution decree, the date Shelley learned Jeffery would be awarded the home. Because there
was no evidence presented that the smoke damage occurred after the dates of either the June 2019
original decree or the October 2019 amended decree, we find the court did not err in failing to hold
Shelley in contempt for willfully causing smoke related damage to the property in defiance of the
court’s order.
Next, we consider Jeffery’s claim that the court erred in failing to hold Shelley in contempt
for intentionally painting two of the walls different colors in violation of the court’s order. Shelley
testified that in 2017, prior to the entry of the initial decree, she intentionally painted the walls but
did not have a chance to finish painting. Again, because the district court found that Shelley’s
conduct predated both the original decree and amended decree, the court found Jeffery failed to
satisfy his burden to show that Shelley willfully or maliciously disobeyed the court’s order. We
agree with the district court. Because we find no clear error in the court’s factual findings, we find
that the district court did not abuse its discretion for failing to hold Shelley in contempt in
connection with Jeffery’s claims that Shelley intentionally and maliciously left the property in a
state of disrepair in violation of the court’s decree. This assignment of error fails.
(ii) Removal of Property From Marital Home
Second, Jeffery contends that the district court erred in failing to hold Shelley in contempt
for her removal of a fabricated shed, blinds and mirrors, and a shop heater from the marital home.
Jeffery asserts that Shelley’s removal of these items directly violated the court’s amended decree
which provided:
Any items which are fixtures (i.e. items permanently attached to the structure or which
cannot be removed by simply unplugging the item) must remain with the property,
including but not limited to all remodeling . . . [Shelley] should not remove anything from
this real property not specifically awarded to her in this decree.
a. Removal of Fabricated Shed
Jeffery contends that the district court erred in failing to hold Shelley in contempt for
removing the fabricated storage shed from the marital property.
In the court’s temporary order, Shelley was awarded temporary exclusive possession of the
marital home; however, the temporary order did not mention the shed located on the property.
Thereafter, the court’s original and amended dissolution decrees ultimately awarded the marital
home to Jeffery but again did not specifically mention the shed. The court awarded Shelley
“household and lawn furniture” some of which was contained inside the shed. The original decree
provided Shelley with 45 days to vacate and ordered her to leave the premises in “good condition
and not cause any property damage.” After Shelley vacated the marital home, Jeffery filed a motion
to determine damages and a motion for contempt based on Shelley’s removal of the shed.
-6-
Shelley testified at the contempt hearing that she believed that she was awarded the shed
as part of the award of “household and lawn furniture.” She further testified that she clarified with
her attorney that the shed was included in her award since the lawn furniture and other items
awarded to her were contained within the shed. In contrast, Jeffery argued that the decree explicitly
set forth that Shelley was not to remove anything from the marital home or property that had not
been specifically awarded to her and that, since the shed was not specifically awarded to her, her
removal of the shed amounted to a willful and malicious violation of the original and amended
decrees.
In the January 2021 order, the district court determined that Jeffery failed to meet his
burden to show that Shelley’s removal of the shed was in willful or malicious disobedience of the
court’s order. The court found that although Shelley’s belief that she was awarded the shed was
misguided, the court found that the evidence did not support an order of contempt.
Notwithstanding its findings, the court ordered Shelley to reimburse Jeffery for the full value of
the shed which value the court determined to be $9,000 and awarded the shed to Shelley.
Giving weight to the fact that the trial court heard and observed the witnesses and the
evidence, we find that the court did not clearly err by accepting Shelley’s testimony as true. Having
determined that the court did not err in finding that Shelley was only mistaken in her belief and
did not willfully disobey the court’s order, we find the court did not abuse its discretion in
concluding Shelley was not in contempt of the court’s prior decree. This assignment fails.
b. Removal of Blinds and Mirrors
Jeffery next asserts that the court erred in failing to hold Shelley in contempt for removing
window blinds and bathroom vanity mirrors from the marital home. We note that the district court
did not determine whether the blinds or mirrors were fixtures; instead, the court found that Jeffery
failed to satisfy his burden to establish that the removal of those items was willful or malicious.
Although Shelley admitted to removing blinds from the home, she testified that she had
purchased the blinds after the parties’ separation and provided receipts of the purchase. Shelley
also testified that the bathroom mirrors were purchased after the parties’ separation and were just
hung on the wall by a nail and therefore were not fixtures. The district court found that, since
Shelley acquired the blinds and the bathroom mirrors after the parties’ separation and provided
evidence of her purchase of the blinds, that evidence did not support a finding that Shelley’s
decision to remove them constituted a willful violation of the court’s order instructing her not to
remove property fixtures.
Whether the blinds and mirrors constitute fixtures we need not decide. We find no clear
error in the court accepting Shelley’s version of the facts; that is, that Shelley purchased the items
she eventually removed after the parties’ separation subject to her understanding that the property
was hers and she had the right to remove them. In light of that finding, we cannot say that the court
abused its discretion in finding Shelley was not willfully disobeying the court’s order based on her
understanding of her rights to the specific property, not specifically mentioned in the decree, which
she purchased herself after the parties’ separation. This assignment fails.
-7-
c. Removal of Shop Heater
Jeffery next contends that the district court erred in failing to hold Shelley in contempt for
her removal of a shop heater from the marital property. Jeffery asserts that the district court should
have found Shelley in contempt because, combined with her “obvious dislike” of Jeffery, she
provided no evidence that the heater was not working, did not return the heater, and could not
recall where she put the heater.
At trial, Shelley testified that she removed the heater, which was not working, to determine
if it could be repaired. After being advised that the heater could not be repaired, she did not return
the heater to the shop and believed she stored it. The court found that Jeffery failed to meet his
burden of proof to establish that Shelley was in willful contempt. Again, where the evidence is in
conflict, we give weight to the fact that the district court observed and heard the witnesses. Weaver
v. Weaver, 308 Neb. 373, 954 N.W.2d 619 (2021). Therefore, we find no error in the court’s factual
determination that Shelley’s removal of the broken heater did not amount to willful disobedience
of the court’s order and no abuse of discretion in failing to hold her in contempt for its removal.
(iii) Sale of Honda Motorcycle
Jeffery next contends that the district court erred in refusing to hold Shelley in contempt
for failing to sell the Honda motorcycle in a commercially reasonable manner as required under
the decree which required Shelley to “sell on eBay or some similar site, the 1986 Honda GL 1200
[motorcycle] and the baseball cards owned by the parties. [Shelley] shall account to [Jeffery] by
supplying documents showing the sale of these items and the parties shall each receive 50% of the
net sale proceeds.”
A commercially reasonable sale is an attempt to sell the property in the manner which will
bring the best price for the property. In re Estate of Failla, 278 Neb. 770, 773 N.W.2d 793 (2009).
Jeffery contends that, despite the motorcycle being valued at $5,000 on their property
statement, Shelley sold it for $900. Jeffery asserts that Shelley demonstrated no legitimate reason
for selling the motorcycle below its value; that the transaction was a sham; and that the conduct is
right out of the movie “First Wives Club.” Brief of appellant at 20. At trial, Shelley testified that
she had originally listed the motorcycle for sale for $2,500 on Facebook Marketplace, but later
decreased the price after negotiating with the buyer. Shelley offered into evidence the messages
that took place between her and the buyer. In the communication between Shelley and the buyer
on Facebook, she advised the buyer that the motorcycle had not been started for over a year, but
that it worked prior to that. Shelley sold the motorcycle for $900 and split the proceeds with
Jeffery.
Here, although the price obtained for the motorcycle was below the parties’ original
valuation, the motorcycle was 34 years old, and Shelley accepted what she described as the only
offer for the motorcycle. The district court found that, due to the motorcycle’s age and condition,
and based upon Shelley’s testimony, it was sold in a commercially reasonable manner and that
Jeffery did not satisfy his burden of proof to show that Shelley willfully and maliciously violated
the court’s order. When evidence is in conflict, we give weight to the fact that the district court
heard and observed the witnesses. Weaver v. Weaver, 308 Neb. 373, 954 N.W.2d 619 (2021). We
find that the court did not clearly err in accepting Shelley’s version of the facts over Jeffery’s, and
when applying those facts, we find no clear error in the court’s finding that Shelley’s actions were
-8-
not in willful disobedience of the court’s order. Therefore, we find that the district court did not
abuse its discretion in failing to hold Shelley in contempt for selling the motorcycle below the
parties’ originally estimated value.
(iv) Failure to Sell Baseball Cards
Jeffery next argues that the district court erred in failing to find Shelley in contempt for
neglecting to sell baseball cards as required under the original and amended decrees. He contends
that Shelley made no reasonable efforts for over a year to sell the cards and that her failure to do
so amounted to a willful disobedience of the court order.
Shelley testified that the baseball cards she was ordered to sell belonged to her father and
there were hundreds of cards contained in a binder and thousands of cards contained in a box.
Shelley testified that she contacted a baseball card collector who stated that he already had most
of the cards she was selling and that there was a flood in the market for her specific cards. Shelley
stated that she also priced out some of the baseball cards on eBay and found that each card was
worth between 59 and 95 cents. At the hearing on the motion for contempt, Shelley indicated that
she was willing to give Jeffery the baseball cards. The court then awarded the cards to Jeffery. As
a result, the district court found that Shelley was not in contempt since the evidence established
that Shelley had attempted to sell the cards but was unable to do so.
We find no error in the court’s factual determination that Shelley took steps to comply with
the court order but was unsuccessful. Further, the court awarded the baseball cards to Jeffery. The
court is permitted to enforce its order with a remedy that is equitable under the circumstances. See
McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018). We find no abuse of
discretion in the court’s findings here. This assignment of error fails.
(v) Value and Return of Shed
Jeffery next assigns that the district court erred in failing to order Shelley to return the
fabricated shed she removed from the marital property and in valuing the shed at $9,000. Jeffery
contends that, because Shelley did not hire an expert to testify to the value of the shed to refute his
valuation, the court abused its discretion in valuing the shed at $9,000 dollars. He also asserts that
the court abused its discretion in failing to order Shelley to return the shed.
As stated above, the district court determined that Shelley was not in contempt for her
removal of the shed finding that her belief that she was awarded it was simply misguided.
However, because she mistakenly removed the shed, the court ordered Shelley to pay Jeffery
$9,000 for the shed’s value. At the trial, although Jeffery testified that the shed was valued between
$11,000 and $15,000, Shelley testified that she did not believe the shed was worth over $10,000.
As the Nebraska Supreme Court noted in Jeffres v. Countryside Homes, 220 Neb. 26, 367 N.W.2d
728 (1985), “the law is well settled that the owner of personalty is qualified to express an opinion
of its value solely because of her status as owner.” Although the rule differs to some degree
regarding the value of real estate, values for this property were obtained from both parties and
Jeffery did not assign error to any such rulings governing their admissibility.
Here, the parties’ testimony conflicted as to the type and value of the shed. Jeffery
contended the shed was custom whereas Shelley stated that the shed was purchased for $500 and
was not customized. The district court adopted a valuation which struck a balance between the
-9-
values urged by both parties. Jeffery’s counsel appeared to accept the appropriateness of this award
as during the hearing on Shelley’s motion for a new trial or to alter or amend the judgment,
Jeffery’s counsel acknowledged that the court “put the number for the [shed] in the middle [of the
parties’ valuations.] I don’t see any problem with that.” Where, as here, the evidence is in conflict,
we give weight to the fact that the district court heard and observed the witnesses and find no error
in the court’s adoption of a value which struck a balance between the values properly admitted
into evidence.
Second, as to Jeffery’s argument that the court should have ordered Shelley to return the
shed, Jeffery fails to cite to any case law which would entitle him to its return as opposed to, or in
addition to, an award of the shed’s full value. As we stated earlier, in a contempt proceeding, a
court’s continuing jurisdiction over a dissolution decree includes the power to provide equitable
relief. Also, where a situation exists that is contrary to the principles of equity and which can be
addressed within the scope of the judicial action, the court is permitted to devise a remedy to meet
the situation. See McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018). The record
establishes that the court devised an equitable remedy by ordering Shelley to pay for the full value
of the shed which the court determined was $9,000. Awarding Jeffery both the shed and the $9,000
value of the shed would be providing Jeffery a windfall. We find the court did not abuse its
discretion in ordering Shelley to pay the value of the shed she removed from the marital property,
as opposed to returning the shed. Therefore, this assignment of error fails.
(b) Accounting
Jeffery’s second category of assigned errors relates to his accounting of the sale of certain
business assets and subsequent deposit of the proceeds into the Business Account. The issues relate
to that portion of the October 2019 amended decree wherein the court stated as follows:
IT IS FURTHER ORDERED, by the Court that [Jeffery] is awarded all right, title
and interest in and to [B-Y] free and clear of any interest of [Shelley]. Provided, however,
that the following items shall be sold in a commercially reasonable manner through the
entity known as “Auction Time,” with such sale to be completed within six (6) months
after the Decree is entered:
Sea Ark 21′ boat and trailer
Munson 18′ boat and trailer
Sea Ark 28′ boat and trailer
Rough neck flat bottom boat
Monarch 21′ boat and trailer
Kann 20′ boat Ranger boat & trailer
Grove 85 T Crane
Caterpillar paving machine
(4) 40′ storage units
30′ freight container
10 storage containers
20′ semi container trailer
2 Hotsy steam cleaners
Tools, tool boxes, welders, lathes
- 10 -
Vermeer tree spade
2009 GMC Acadia
2014 Ford F-250
2009 Gimma Tractor
All proceeds from the sale of the equipment shall be deposited into Account No. XXX9956
at First Nebraska Bank. [Jeffery] shall provide to [Shelley] a monthly accounting of the
sale of these assets, and a monthly accounting of the monies held in Account No.
XXX9956, including a list of all operating expenses incurred to prepare the equipment for
sale, to pay accounting and actual expenses, together with expenses incurred by Auction
Time. Once the sale of all of the equipment listed above is complete, [Jeffery] shall provide
a final accounting of the sale and Account No. XXX9956 to [Shelley]. [Shelley] shall have
thirty (30) days thereafter to make any specific objections to the accounting. Absent any
objections, all remaining proceeds in that account, shall forthwith be divided equally
between the parties.
Shelley eventually filed an objection to the accounting provided by Jeffery. Jeffery assigns
numerous errors in connection with the court’s findings governing Shelley’s objections to his
accounting of the Business Account. Jeffery asserts that the district court erred in finding that
Shelley’s objection to the final accounting of the Business Account was timely; in finding that he
improperly dissipated assets when he used the business account to pay his health insurance
premium, purchase a pickup truck, and pay certain attorney fees; and in failing to give him credit
against the amount payable to Shelley for proceeds he placed in the Business Account after selling
a boat he was separately awarded.
Before addressing Jeffery’s assigned errors in connection with Shelley’s contest to
Jeffery’s accounting, we must first identify the nature of the proceeding itself. We believe that the
nature of the proceeding was identified by the Nebraska Supreme Court in Johnson v. Johnson,
308 Neb. 623, 956 N.W.2d 261 (2021), wherein the court held:
The district court's authority to enforce the decree was not limited by the fact that [the
mother] initiated contempt proceedings. Civil contempt proceedings are instituted to
preserve and enforce the rights of private parties to a suit when a party fails to comply with
a court order made for the benefit of the opposing party. McCullough v. McCullough, 299
Neb. 719, 910 N.W.2d 515 (2018). A court's continuing jurisdiction over a dissolution
decree includes the power to provide equitable relief in a contempt proceeding. Id.Contempt proceedings may both compel obedience to orders and administer the remedies
to which the court has found the parties to be entitled. Where a situation exists that is
contrary to the principles of equity and which can be redressed within the scope of judicial
action, a court of equity will devise a remedy to meet the situation. Id. Although the district
court apparently concluded that [the father] did not willfully violate the decree by not
paying [the daughter’s] automobile and college expenses, and therefore did not hold him
in contempt for failing to do so, it still had authority to enforce the decree by compelling
him to follow it.
- 11 -
Here, although Shelley did not identify her challenge to Jeffery’s accounting as a contempt
action, we find the proceeding as one instituted to preserve and enforce Shelley’s rights when she
believed Jeffery failed to comply with a court order made for her benefit. As such, we find the
proceeding to be a contempt proceeding seeking to enforce the court’s order in the decree and we
apply the standard of review for contempt proceedings set forth earlier in this opinion. We now
proceed to address Jeffery’s assigned errors independently.
(i) Timeliness of Objection to Final Accounting
Jeffery first argues that the court erred in finding that Shelley timely filed her objection to
his final accounting of the Business Account following his presentation of that final accounting.
As to that finding, the record establishes that, during discovery in December 2019, Jeffery provided
certain documents relating to the Business Account and the sale of the equipment. The parties then
disputed whether all the documents were provided. In March 2020, Shelley’s counsel sent an email
inquiring about when Shelley would expect to receive a final accounting. In April, Jeffery provided
supplemental discovery responses to Shelley’s prior request for production of documents. In his
response, Jeffery indicated that his December 2019 responses and March 2020 supplemental
responses constituted his final accounting. In response, Shelley filed a motion to compel Jeffery
to file a compliant final accounting which motion was granted by the district court. The court found
that Jeffery had not provided the final accounting through his initial and supplemental discovery
and that the 30-day period for Shelley to file her objection had not been triggered and granted
Jeffery until July 10 to file a final accounting. Following the court’s order, Jeffery timely filed and
served the final accounting, and 10 days later, Shelley filed her objection alleging improper
expenditures from the Business Account which she alleged resulted in a dissipation of the Business
Account that the parties were required to divide equally. Following a hearing thereon, the district
court found that Shelley’s objection was timely. Jeffery assigns error to that finding. We disagree.
After reviewing the record associated with Jeffery’s disclosures, the court’s rulings
thereon, and the court’s ultimate conclusion that Shelley’s final objection was timely filed, we
cannot say that the court clearly erred in finding that Shelley timely filed her objection or that the
court abused its discretion in determining that Shelley complied with the court’s order. Jeffery’s
assignment that the court erred in its determination of the timeliness of Shelley’s objection fails.
(ii) Dissipation of Marital Assets
Jeffery next argues that the district court erred in finding that he failed to comply with the
court’s order governing certain payments he made from the Business Account. More specifically,
Jeffery argues that the district court erred in finding that he improperly disbursed payments from
the Business Account relating to the payment for his personal health insurance premiums, the
purchase of the 2014 Ford pickup, and for his payment of certain attorney fees to Dvorak Law.
We will discuss those findings independently.
a. Health Insurance Premiums
Jeffery first argues that the district court erred in finding that he improperly disbursed funds
from the Business Account for his personal health insurance premiums. He argues that, because
the terms of the temporary order ordered him to maintain health insurance through October 4,
- 12 -
2019, payments made from the Business Account utilized for that purpose complied with the
court’s order. The court found that Jeffery’s utilization of the Business Account for this purpose
violated the decree because “[Jeffery’s] personal health insurance premium obviously does not
constitute an ‘operating expense incurred to prepare the equipment for sale.’ [Jeffery] shall
reimburse [Shelley] for half of the $11,144.40 (or $5,572.20) which he dissipated from the
Business account to pay his health insurance.”
Shelley testified that, as of July 31, 2017, Jeffery was no longer providing insurance
coverage for her as she had obtained her own insurance through her employer. She argues that
Jeffery’s $11,144.40 payment for his personal health insurance premiums in November 2018 from
the Business Account constituted an improper use of the funds because it was unrelated to expenses
authorized by the decree. Jeffery contends that, because he was otherwise awarded B-Y’s business
in the decree, he was permitted to use the account for personal expenses. We disagree.
Although we agree that the court’s May 2016 stipulated order required Jeffery to “assume
the monthly premium for [the parties’] joint health coverage during the pendency of this action
and until further order of the court,” the order did not provide that Jeffery could pay the health
insurance premiums from the Business Account. Further, although the court’s June order awarded
Jeffery “the exclusive possession” of B-Y, he was otherwise specifically instructed that as to the
Business Account, Jeffery was to sell certain business assets; deposit the funds in the Business
Account; utilize the account proceeds for operating expenses associated with preparing the
equipment for sale, accounting, and actual expenses including those of Auction Time; provide a
full accounting of those transactions; and divide the remaining proceeds in that account with
Shelley.
We agree with the district court that under the decree, the Business account was to be used
by Jeffery as a repository for the business assets sold with expenses paid only relating to the sale
and accounting relating to that function with the remaining proceeds to be split between Jeffery
and Shelley. Because Jeffery was not authorized to pay personal health insurance premiums from
the Business Account under the specific terms of the decree, we find that the court did not err in
finding that this was an unauthorized disbursement from the Business Account. This assignment
fails.
b. 2014 Ford Pickup
Jeffery next argues that the district court erred in finding that he made an unauthorized
payment from the Business Account by purchasing his 2014 Ford pickup. He claims that the court
erred in finding that he purchased the vehicle with proceeds from the Business Account rather than
his own personal funds.
The 2014 Ford pickup was one of B-Y’s assets that the court ordered should be sold with
the proceeds to be split between the parties. The record shows that on November 20, 2019, Jeffery
paid a sum of $12,000 from the Business Account to a company that was auctioning off some of
B-Y’s business equipment. Jeffery argues that he reimbursed the Business Account with his own
personal funds. The court, in its May 2021 order on the motion to alter or amend stated that “it
was improper for [Jeffery] to use $12,000 from [the B-Y account] to buy the pickup truck for
himself. He shall pay [Shelley] $6,000.”
- 13 -
From our review of the record, check number 1890 was written from the B-Y account to
Jeffery for $12,000. The auction company’s representative testified that Jeffery sent a check for
$12,000 for the pickup. Jeffery’s accounting expert testified that the last sale or deposit of the
equipment for the Business Account occurred in November 2019 which corresponded with the
date of the payment for the pickup.
Pursuant to the decree, Jeffery was to use the Business Account as a repository for the sale
of designated assets of B-Y with the net proceeds of the sale to be split between the parties. Jeffery
testified that he did use the Business Account to pay certain personal expenses. However, Jeffery’s
accounting expert stated that certain of those payments were then booked as an account receivable
of the company to be paid by Jeffery. Although he testified that some of the receivables were
reimbursed by Jeffery, he acknowledged that the receivable balance was not fully reimbursed.
William Strain, Shelley’s accounting expert, testified that had B-Y booked an account receivable
balance to correspond with Jeffery’s personal expenditures paid through the Business Account, it
would have been depicted as an asset on B-Y’s balance sheet. He testified that there was not an
accounts receivable from Jeffery shown on B-Y’s balance sheet which meant that Jeffery’s
personal expenses were either paid back or forgiven and based on the records, he believed that the
expenses were forgiven and never paid back into the Business Account.
After reviewing this testimony, the district court concluded that Jeffery had not reimbursed
the Business Account for his $12,000 payment to acquire the 2014 Ford pickup truck. Following
our de novo review of the record, after giving weight to the determination of the district court
judge who heard and observed the witnesses and accepted one version of the facts over another,
we find that the court did not clearly err in its determination that Jeffery improperly utilized the
Business Account to purchase the vehicle and did not reimburse the Business Account. Jeffery’s
assignment of error fails.
c. Attorney Fees
Jeffery next argues that the district court erred in finding that he improperly used the
Business Account to pay attorney fees to the Dvorak law firm.
Following the entry of the initial dissolution decree, Shelley filed a motion for a new trial
or to alter or amend the judgment asserting that Jeffery had improperly used funds in the Business
Account that were to be divided with Shelley. In its August 2019 order on the motion for a new
trial, the court agreed with Shelley and found that Jeffery wrote checks on the Business Account
totaling $58,752.98 for legal fees to three different law firms. The court found that, although
Jeffery testified that there was a separate civil lawsuit involving the parties in this case, $56,152.98
of legal fees had been paid to two law firms that had not represented B-Y in the separate civil
lawsuit. Because the court was “not satisfied with [Jeffery’s] vague explanation as to why he paid
their attorneys’ fees using the [Business Account],” $56,152.98 of attorney fees paid out of the
Business Account were treated as a martial asset awarded to Jeffery on his side of the balance
sheet.
Thereafter, in July 2020, Shelley filed an objection to the final accounting filed by Jeffery
asserting that Jeffery had dissipated nearly all the funds held in the Business Account that were
supposed to be split equally between the parties and that Jeffery failed to establish the expenses
which were used to prepare B-Y’s equipment for sale. In its January 2021 order relating to the
- 14 -
objection to the final accounting, the district court ordered Jeffery to reimburse Shelley for one-half
of $17,633.08 in additional legal fees paid to another law firm out of the Business Account. The
court stated:
There is simply no way that payments made to [Dvorak] for representing B-Y in the civil
suit against [Shelley], which B-Y dismissed on its own motion . . . could possibly constitute
“operating expenses incurred to prepare the equipment for sale.” [Jeffery] shall reimburse
[Shelley] for half of the $17,633.08 (or $8,816.54) which he dissipated from the B-Y
account to pay [Dvorak].
Under our de novo review of the record, there is no dispute that Dvorak law firm
represented B-Y in a civil suit against Shelley for damages and in another civil suit against his
stepdaughter related to property awarded to Shelley. The question then is whether the payment of
attorney fees from the Business Account to the Dvorak law firm in its representation of B-Y in a
suit against Shelley was a permitted expense.
Jeffery contends that, although B-Y’s case against Shelley was dismissed, he should not
have been required to reimburse Shelley for that half of the attorney fees because the fees
represented an “actual cost” of the parties and not a personal expenditure. Shelley contends that
Jeffery failed to show how attorney fees paid to Dvorak law firm amounted to an expense incurred
to prepare the equipment for sale since that lawsuit was irrelevant to such sale.
As it related to how the Business Account was to be used in connection with the decree,
the district court stated:
The Court further finds that [the Business Account] . . . is the account [Jeffery] has been
utilizing during the divorce proceeding, to fix up and prepare equipment for sale, to pay
accounting expenses and to pay his salary. This account has continued to be used after the
last date of trial. The Court finds that [Jeffery] should continue to utilize that account for
such purposes and all proceeds from the auction sale of the equipment set forth above,
should be deposited into this account and [Jeffery] should continue to provide monthly
accountings to [Shelley].
As it related to the accounting to be provided, the court originally ordered:
All proceeds from the sale of the equipment shall be deposited into [the Business Account].
[Jeffery] shall provide to [Shelley] a monthly accounting of the sale of these assets, and a
monthly accounting of the monies held in [the Business Account], including a list of all
operating expenses incurred to prepare the equipment for sale, to pay [Jeffery’s] salary and
accounting expenses, together with expenses incurred by Auction Time.
Thereafter, in its August 2019 amended order, the district court modified the aforementioned
paragraph to provide:
All proceeds from the sale of the equipment shall be deposited into [the Business Account].
[Jeffery] shall provide to [Shelley] a monthly accounting of the sale of these assets, and a
monthly accounting of the monies held in [the Business Account], including a list of all
operating expenses incurred to prepare the equipment for sale, to pay [Jeffery’s] salary and
accounting and actual expenses, together with expenses incurred by Auction Time.
- 15 -
Following the court’s amended decree, which neither party appealed, Jeffery was permitted
to use the account to prepare the equipment for sale, as a repository for liquidated assets, and to
pay the associated sale and accounting expenses. The attorney fees paid by Jeffery to the Dvorak
law firm were not associated with the business assets designated for sale or associated sale and
accounting expenses. Accordingly, we find that the court did not abuse its discretion in finding
that Jeffery’s payment of these fees from the Business Account were an unauthorized expenditure
and should be reimbursed. This assignment fails.
(c) Lifetyme Boat
Jeffery next argues that the district court erred in failing to give him credit for his sale of
the “Lifetyme boat” which proceeds were deposited into the Business Account even though it was
an asset awarded to him under the decree and not a business asset of B-Y ordered to be sold and
the proceeds deposited.
The trial held by the district court over 3 days in September and November 2020 was in
response to Shelley’s motion objecting to the accounting of the Business Account administered by
Jeffery. As described before, this issue presented to the court was identified as an unauthorized
expenditure by Jeffery from the Business Account. Both before and during the trial, Jeffery never
requested a credit to be awarded to him for the sale and subsequent deposit of the proceeds from
that sale for the Lifetyme boat. Jeffery only mentioned the boat at the hearing in relation to the sale
of certain business assets to a particular company without affirmatively requesting a credit.
Following the court’s order governing the trial, Shelley filed a motion for a new trial or to alter or
amend that order. The Lifetyme boat was once again discussed, but a credit was not requested by
Jeffery.
On appeal, Jeffery now asserts that he should have been entitled to a credit for the Lifetyme
boat since it was personally awarded to him and that he deposited the funds from its sale into the
Business Account. However, as we have often said, a district court cannot commit error in
resolving an issue never presented and submitted to it for disposition. In re Interest of Rosso, 270
Neb. 323, 701 N.W.2d 355 (2005). This assignment of error fails.
3. SHELLEY’S CROSS-APPEAL
Shelley’s cross-appeal is directed only at issues decided in connection with her objections
to Jeffery’s accounting of the Business Account. She specifically assigns that the court erred in
finding Jeffery did not make unauthorized salary withdrawals from the Business Account from
November 2018 to August 2019; did not make unauthorized personal withdrawals for certain
miscellaneous utility-type services; that the court erred in not identifying a starting value for the
Business Account; and that the court erred in not requiring a division of the remaining proceeds in
the Business Account. We will discuss each of these issues independently.
(a) Salary Expense
Shelley first argues that Jeffery’s salary withdrawals from the Business Account in the
amount of $132,153.22 from November 2018 to August 2019 were unauthorized.
In the court’s original decree entered on June 10, 2019, the court awarded the B-Y business
shares to Jeffery but ordered that certain business assets shall be sold, and the proceeds deposited
- 16 -
in the Business account; that Jeffery could withdraw certain limited expenses associated with the
sale of the assets including a salary; and that the net proceeds would be divided between Jeffery
and Shelley. After entering that decree, Shelley filed a motion for new trial or to alter or amend
the decree. That motion included a challenge to Jeffery for having taken a salary from the Business
Account. Following a hearing on that motion, the court entered an order amending its original
decree and finding, in part, that Jeffery was prohibited from drawing his salary from the Business
Account because “B-Y is no longer in business. It is not reasonable for [Jeffery] to continue to
draw a $175,000.00 annual salary to prepare the assets for sale. Doing so would constitute a
dissipation of marital assets and would be inequitable.”
As part of the court’s rationale for originally allowing the salary, the court made reference
to a statement during the dissolution trial where Shelley’s counsel indicated counsel had no
objection to Jeffery continuing to take a salary. Notwithstanding the remark, the court reversed its
decision on allowing a continuing salary and removed the provision for that salary from the
original decree. The court later cited Jeffery’s lack of continuing salary as a justification for
removing Jeffery’s obligation to provide alimony to Shelley. Neither party disputes the fact that
Jeffery did not provide himself with a salary after the court amended its decree in August 2019.
Following a new trial on the limited issue of a disputed tax allocation, the court issued a final
amended decree on October 14, 2019, wherein the court incorporated language removing Jeffery’s
right to pay himself a salary. But, unlike the unauthorized reduction for attorney fees discussed
before, the court did not list salary paid during the pendency of the prior order as an asset on
Jeffery’s side of the ledger. Neither party appealed from the findings set forth therein.
Shelley now attempts to dispute salary payments made by Jeffery from the Business
Account from November 2018 to August 2019 in connection with the accounting proceeding.
There is no question that Jeffery was authorized to pay himself a salary at the time he paid it but
was prohibited after August 2019 when the court first amended the decree. The question is, can
Shelley now object to the salary payments under the auspices of the objection proceeding reserved
by the court based upon an amended decree when the salary was authorized at the time it was
taken. The district court found that the salary deduction could not be contested because, when the
payments were made, the payments were not in contravention of the then current court order. We
agree for two separate reasons.
First, although the August 2019 order prohibited Jeffery from taking any further salary
from the Business Account, the June 10, 2019, decree specifically authorized it. As we stated
earlier, Shelley’s objection to Jeffery’s accounting of the Business Account is a contempt
proceeding designed as a remedy for noncompliance with a court’s order. Because when Jeffery
removed his salary prior to August 2019, he was not violating the court’s order, we find that the
court did not err in finding that the removal of the salary was not prohibited. Second, if Shelley
believed she was entitled to an additional marital asset based upon Jeffery’s conduct in connection
with his salary which was analyzed by the court at the time the court entered its final amended
decree on October 10, 2019, she could have appealed from that decree. She did not. That amended
decree contemplated a future right for Shelley to contest an accounting of the Business Account
for activities not resolved by the amended decree but not as a mechanism to resolve matters that
were already decided and not appealed. This assigned error fails.
- 17 -
(b) Payments to Lutz Accounting Firm
Shelley next argues that the district court erred in failing to find that certain payments to
the Lutz accounting firm from the Business Account were unauthorized under the decree. Shelley
argues that the court’s decree limited Jeffery to paying expenses associated with preparing the
equipment for sale. She argues that because payments to Lutz do not fit within that framework,
those payments, in the amount of $7,772.89, were unauthorized. The district court found there was
insufficient evidence presented to establish whether these payments were, in fact, contemplated by
the order. As we stated before, the decree allowed Jeffery to pay “[Jeffery’s] accounting and actual
expenses, together with expenses incurred by Auction Time.” As such, payments by Jeffery to the
Lutz accounting firm appear to at least meet the description of an accounting expense. The district
court found that there simply was not sufficient evidence provided to consider these accounting
payments unauthorized. In a civil contempt preceding, the burden to prove all elements of civil
contempt are on the complainant who must prove those elements by clear and convincing evidence.
Becher v. Becher, 311 Neb. 1, 970 N.W.2d 472 (2022). After reviewing the conflicting testimony
governing the source of these payments to the accounting firm, we cannot say that the court abused
its discretion in finding that Shelley failed to prove these payments were unauthorized under the
decree. This assigned error fails.
(c) Jeffery’s Personal Monthly Expenses
Shelley asserts that the district court erred in finding that the evidence was insufficient for
the court to conclude payments for certain garbage, rent, telephone, and utility expenses in the
total amount of $12,653.15 were unauthorized payments from the Business Account under the
decree. The district court found “it was without sufficient information as to whether payments for
garbage service, rent, telephone, and utilities were necessary operating expenses incurred with
official B-Y business in wrapping up the business and preparing equipment for sale.” We disagree
in part.
We agree it is at least arguable that the garbage, telephone, and utility fees could be
expenses associated with the sale of the business assets and we cannot say that the court abused its
discretion in so finding. However, the records indicate that $6,300 in rental payments were made
to Jeffery’s brother. In the amended decree, Jeffery was awarded the shop and business office for
B-Y and had no reason to incur rental costs associated with selling the business assets and he
provided no legitimate reason why these rental payments to his brother constituted authorized
expenditures under the decree. Having provided no legitimate explanation as to how this expense
is associated with the sale of business equipment, we find that the court erred in finding that it was
an authorized payment from the Business Account. We will discuss the impact of this finding in
the court’s order in the remaining sections of this opinion.
(d) Beginning Value of Business Account
Shelley next argues that the court erred in not adopting the Business Account value of
$194,697.60 for purposes of its dissipation analysis. She argues this resulted in a significant marital
asset being unvalued in contravention of Nebraska law.
As we stated before, the court entered its amended decree on October 4, 2019. In its balance
sheet, it did not include the Business Account. Instead, the decree referred only to the Business
- 18 -
Account as the conduit for the future sale of certain business assets, the net value of which would
be split among the parties. There was no appeal taken from that decree. To the extent Shelley is
arguing the court erred in failing to assign value to the account in connection with the amended
decree, that issue should have been raised in an appeal from that amended decree.
That said, the decree did contemplate a future sale of certain business assets, a deposit of
funds in the Business Account, authorization for certain limited expenses, and then a division of
the net proceeds. The court required Jeffery to account monthly for the Business Account
following the issuance of the initial and amended decrees, required a final accounting be submitted,
and provided a procedure by which Shelley could contest that accounting. Jeffery ultimately did
provide an accounting relating to the Business Account retroactive to November 1, 2018. And as
demonstrated by Exhibit 300, Shelley was able to contest any and all transactions made from the
account during that relevant period. The court made findings governing all contested transactions
spanning between November 2018 and the date of the trial on November 9, 2020, (at which time
$7,772.89 remained in the account) and the court entered a final payment obligation after
performing that analysis. The court’s amended decree required Jeffery to maintain the Business
Account in a specified manner and then split the remaining proceeds with Shelley upon the
conclusion of his official duties. It separately provided Shelley with a remedy to contest Jeffery’s
administration of those duties. Inherent in the court’s decree is a specified period of time that the
proceeds in the account would be maintained and then evenly split. In order to determine the split,
it was essential to have a beginning date and ending date where the proceeds could be monitored
and so that the split of the proceeds could be determined. Even though the court did not expressly
set the starting date of the account or its value, it is clear from the record that the court analyzed
all disputed transactions commencing as of November 1, 2018, through the date of the trial.
Equally clear is that Shelley had an opportunity to and did contest entries made during that relevant
period.
Although the court did not expressly state it, we find that the proceeding did fairly allow
Shelley to contest the expenses from the Business Account during relevant periods as contemplated
by the court’s amended decree. As such, we find as to Shelley’s particular assigned error, that the
court failed to adopt a beginning value of the Business account, fails because it is refuted by the
record based on the court’s analysis. We will further discuss the impact of that adoption in
connection with Shelley’s final assignment.
(e) Remaining Balance in B-Y Account
Shelley finally argues the court erred in failing to order Jeffery to pay Shelley one-half of
the proceeds remaining in the Business Account following its findings governing all other
transactions disputed by Shelley.
It is true that the court’s order required Jeffery to split one-half of the net proceeds in the
Business Account following the sale of the business assets. As stated above, the court did review
all challenged transactions from November 2018 to November 2020 except those already raised in
connection with the entry of the amended decree, and the court ordered Jeffery to pay one-half of
all unauthorized expenditures. Shelley argued that in addition to paying her one-half of the
unauthorized expenditures, Jeffery should be ordered to pay Shelley one-half of the $7,772.89
remaining in the account as of November 2020.
- 19 -
In the court’s amended decree, it ordered Jeffery to pay Shelley a combined equalization
payment in the amount of $308,793.24. It also required Jeffery to later liquidate assets, place the
proceeds into the Business Account, and split the net proceeds with Shelley. As such, the total
amount paid to Shelley under the amended decree was to be a combination of those obligations.
During the course of the proceedings, Jeffery paid sums to Shelley to partially satisfy these
obligations. The total value owed from the combined obligations will only be determined when
this matter becomes final. As it relates to this specific assignment, Shelley argues that part of the
obligation should include one-half of the remaining sum in the Business Account. In order to
determine if that is correct, that required a computation of what has already been paid to Shelley
from the combined obligations stated above. The court concluded that from the evidence presented,
the evidence was insufficient to conclude whether Shelley has been paid in full relating to the
obligations set forth in the decree.
The purpose of the objection to the accounting proceeding was to reserve Shelley’s right
to contest Jeffery’s management of the Business Account as ordered by the court in its amended
decree. That involved determining its starting value, analyzing contested payments, and
determining its proper final value so that the value could be properly split between Jeffery and
Shelley. When coupled with the equalization payment, the combined amounts represent Jeffery’s
obligations under the decree. In order to determine the final Business Account value to be split,
we must first determine the amount which would have been in the Business Account but for
Jeffery’s unauthorized payments to himself and others. One-half of that value, when combined
with the equalization payment, would be Jeffery’s total obligation under the decree. Once that
number is determined only then could the parties determine whether Jeffery has made all payments
required or whether monies are still due and owing. The issue is complicated by the fact that Jeffery
made an $85,000 payment from the Business Account which was designated as a payment to
satisfy a portion of his equalization payment obligation. However, the issue before this court is not
whether Shelley has been paid in full for both obligations. It is only what is due to be paid under
the Business Account. We agree with the district court that the evidence was insufficient to simply
say Jeffery must pay Shelley one-half of the remaining balance in the Business Account because
of the lack of evidence of what was still owed. That said, it is clearly part of the computation that
must be made in deciding how much from the Business Account was required to be paid to Shelley.
That issue was relevant to this proceeding and is captured by this assignment of error. For the sake
of clarity, then, we provide the final computation of that account as directed by the district court’s
order and our holdings herein.
Rather than the approach taken by the district court, we approach the determination of what
Jeffery owed Shelley under the Business Account as follows:
- 20 -
Unauthorized Reductions for Payments
(Per the court’s orders and our findings)
January 2021 Order
1. Dvorak Law $17,633.18
2. Payment to Shelley for Equalization $85,000.00
3. Personal Health Insurance Premium $11,144.40
4. Witness Fees $1,100.00
Total Dissipated $114,877.58
5. Reimbursement for Boat Motors ($8,000.00)
Total After Credit $106,877.58
Shelley's 1/2 $53,548.79
6. Reimbursement for Shed and Fees ($9,750.00)
Shelley's 1/2 Entitlement from Business $43,688.79
Account less her payment obligation for
the shed and fees
May 2021 Order
1. Pickup Truck $12,000.00
2. Additional Attorney Fees $30,431.52
3. Credit Card $26,678.67
4. Insurance Payment $12,302.92
5. Treasurer $ 5,403.64
6. Rent $ 6,300.00
Total Dissipated $93,116.75
Shelley's ½ Entitlement From Business $46,558.36
Account
Shelley's Total Entitlement (Both $90,247.15
Orders)
Total Remaining in Account $ 7,772.89
Shelley's 1/2 Entitlement $ 3,886.46
Total Owed to Shelley $94,133.61
Based on our review of the court’s calculations, we find that the court’s January 2021 order
contained a mathematical error in its calculation. The court ordered Jeffery to pay to Shelley
$39,668.74. However, using the numbers provided by the court for determining that value, we find
that the correct sum is $39,688.74. Our calculation reflects that correction. In addition, we find
- 21 -
that the court erred in its crediting of the boat motors. To ensure that Jeffery receives the full value
of that asset, it should be subtracted from the total amount dissipated from that January order prior
to being divided between the parties.
Following our analysis, we conclude that Jeffery was required to pay Shelley $94,133.61
for her one-half share of the Business Account after applying the proper reduction for her required
reimbursement of the shed and fees. When combined with the $308,793.24 equalization previously
ordered by the district court, Jeffery’s full payment obligation under the amended decree is
$402,926.85. We make no findings as to what has been paid to Shelley in relation to those
obligations as that issue is not presently before us.
VI. CONCLUSION
In sum, we find that the court did not abuse its discretion in failing to hold Shelley in
contempt of court on certain matters, finding that Jeffery had dissipated assets, or in failing to give
Jeffery a credit for his boat. Further, we find that the district court did not err in its determination
that Jeffery did not improperly expend funds from the Business Account to pay his salary or for
his payments to Lutz accounting firm. Additionally, we find that the record refutes Shelley’s claim
that the court did not adopt a beginning value on the Business Account. We affirm as modified the
order as it relates to Jeffery’s personal expenditures from the Business Account for rental payments
to his brother. Finally, we affirm as modified the court’s calculation of improper expenditures from
the Business Account for which Jeffery is obligated to pay Shelley.
AFFIRMED AS MODIFIED.
- 22 -