Killinger v. Killinger

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
KILLINGER V. KILLINGER
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).
ELIZABETH KILLINGER, APPELLEE,
V.
JUSTIN KILLINGER, APPELLANT.
Filed December 17, 2019. No. A-19-088.
Appeal from the District Court for Howard County: KARIN L. NOAKES, Judge. Affirmed.
Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for appellant.
Susan M. Koenig, of Mayer, Burns & Koenig, for appellee.
MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
MOORE, Chief Judge.
INTRODUCTION
The District Court of Howard County entered a decree dissolving the marriage of Justin
Killinger and Elizabeth Killinger. Justin appealed, assigning error to the court’s distribution and
valuation of the parties’ assets and to the child support award. For the following reasons, we affirm.
BACKGROUND
Justin and Elizabeth were married on August 5, 2006, and two children were born to the
parties in 2012 and 2015. The parties separated in October 2016 and Elizabeth filed a dissolution
action in January 2017. A trial was held on November 13, 2018. There were three primary disputed
issues at trial: distribution of Just-In-Feeds, L.L.C., a business the parties owned together;
valuation of cash that was kept in a gun safe on the business property; and child support.
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Distribution of Just-In-Feeds.
Justin and Elizabeth were the sole members of a limited liability company, Just-In-Feeds.
The company consisted of a feed store that sold bulk livestock feed and a small line of seed for
growing crops. Justin and Elizabeth started the business in 2009 and reorganized the company into
a limited liability company in 2014. Justin and Elizabeth each owned 50 percent of the interest in
the company.
During the course of the divorce proceedings, the parties mutually agreed to hire Veritas
Professional Group, L.L.C., to perform a valuation of the business. The parties agreed to have the
business valued as of January 31, 2017. The calculation procedures were performed to determine
the fair value of an equity interest in the business for the purpose of calculating an equitable
distribution in the divorce. Using an Adjusted Net Assets Method, Veritas determined that the
value of Just-In-Feeds was $335,500. This valuation was conducted in conformity with the
Valuation Standards of the National Association of Certified Valuators and Analysts.
Elizabeth did not want the district court to assign the business to her because she was
already working another full-time job. Justin testified that he also did not want the district court to
assign the business to him as he would be unable to afford the resulting equalization judgment.
Justin testified that Just-In-Feeds had existing debts and the maximum loan amount he could obtain
from his bank was $40,000. Justin also believed he could not obtain the necessary credit to continue
to operate the business. Justin asked that the business be sold and the proceeds divided between
the parties.
The district court distributed Just-In-Feeds to Justin. In order to equalize the division of
assets and debts between the parties, the court entered an equalization judgment against Justin in
the amount of $139,891. Under the decree, Justin is to make annual installment payments toward
the judgment of $14,000, with interest.
Cash in Gun Safe.
The parties also disputed the value of cash that was located in a gun safe located in the
office of Just-In-Feeds. Based upon her view of the money in the safe, Elizabeth believed that there
was a total of $40,000 in the gun safe. According to Elizabeth, the cash was gathered in stacks and
there was handwritten numbers on the stacks of bills that she believed to represent the value of the
bills in each stack. She did not count the bills in the safe independently. Elizabeth stated that she
did not know whether the cash in the safe was property of the business or was marital property.
However, Elizabeth testified that she believed the cash was from a paint can where the couple had
previously kept cash in the house during the marriage.
Justin agreed that there was cash in the gun safe at Just-In-Feeds, but testified that it
belonged to the business from customers paying with cash. Justin believed that there was
approximately $10,000 in the safe. The valuation of the business by Veritas did not include any
cash as an asset of the business.
The district court did not make a specific finding regarding the amount of cash in the gun
safe at the Just-In-Feeds store. However, the court attributed a total value of $375,500 to the
business, which was $40,000 more than the valuation determined by Veritas.
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Child Support.
Justin and Elizabeth have two minor children. The parties agreed on a parenting plan
providing for the parties to have joint legal custody, with Elizabeth having sole physical custody,
and establishing parenting time with the children.
Justin testified that his sole source of income was Just-In-Feeds. According to Justin’s
testimony and tax documents from various years, income from Just-In-Feeds varied year to year
depending on the price of commodities. For example, in 2011, the company showed a net profit of
$13,125. In 2012, the company showed a net profit of $20,636. In 2013, the company showed a
profit of $34,373. In 2014, when Just-In-Feeds was organized into a limited liability company, it
had net profit of $45,634 and Justin’s K-1 form showed self-employment earnings of $28,865. For
2015, the company’s net profit was $54,374 and Justin’s K-1 form showed self-employment
earnings of $40,419. For 2016, the company’s net profit was $82,423 and Justin’s K-1 form
showed self-employment earnings of $70,496. Lastly, in 2017, the business income on the parties’
joint Schedule E was $35,211, and Justin’s K-1 reported $17,606 of self-employment income.
Justin testified that 2016 was an unusually good year, but that an average from 2011 through 2017
would give an accurate picture of his earnings.
Elizabeth was employed by the University of Nebraska extension in Grand Island,
Nebraska. Elizabeth was paid $5,349 gross per month. Through her employer, Elizabeth provides
health insurance for the parties’ minor children at a cost of $76 per month in addition to the $169
per month Elizabeth pays for her individual coverage. Prior to the separation, Elizabeth also
participated in Just-In-Feeds by working at the store on weekends or days off and preparing the
tax documents.
The district court ultimately used an average of the last 3 years of income earned by the
business in determining Justin’s child support obligation. The district court used the total business
income for Just-In-Feeds (rather than Justin’s share), because Justin was awarded all interest in
the business and would be the one receiving all future distributions. The court set forth the business
income figures as: $35,211, $47,488, and $82,423, for a total of $165,122 (divided by 3 = $55,040
average annual income). Based on this income, together with Elizabeth’s current income, Justin
was ordered to pay $980 per month in child support when there are two children subject to the
order, and $694 per month when there was only one child subject to the order.
ASSIGNMENTS OF ERROR
Reordered, Justin assigns that the district court erred by abusing its discretion in (1)
assigning Just-In-Feeds to Justin and entering an equalization judgment against him, (2) finding
that the value of the cash located at Just-In-Feeds was $40,000, and (3) requiring Justin to pay
child support in the amount of $980.00 per month.
STANDARD OF REVIEW
In an action for the dissolution of marriage, an appellate court reviews de novo on the
record the trial court’s determinations of custody, child support, property division, alimony, and
attorney fees; however, these determinations are initially entrusted to the trial court’s discretion
and will normally be affirmed absent an abuse of that discretion. Dooling v. Dooling, 303 Neb.
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494, 930 N.W.2d 481 (2019). A judicial abuse of discretion exists if the reasons or rulings of a
trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just
results in matters submitted for disposition. Id.
ANALYSIS
Distribution of Just-In-Feeds.
The ultimate test in determining the appropriateness of the division of property is fairness
and reasonableness as determined by the facts of each case. Rohde v. Rohde, 303 Neb. 85, 927
N.W.2d 37 (2019). Under Neb. Rev. Stat. § 42-365 (Reissue 2016), the equitable division of
property is a three-step process. The first step is to classify the parties’ property as marital or
nonmarital, and setting aside the nonmarital property to the party who brought that property to the
marriage. The second step is to value the marital assets and marital liabilities of the parties. The
third step is to calculate and divide the net marital estate between the parties in accordance with
the principles contained in § 42-365. Rohde, supra. As a general rule, a spouse should be awarded
one-third to one-half of the marital estate, the polestar being fairness and reasonableness as
determined by the facts of each case. Osantowski v. Osantowski, 298 Neb. 339, 904 N.W.2d 251
(2017).
A court in a dissolution action may provide for the sale of all or part of the parties’ assets
in lieu of dividing them, if to do so is reasonable in the light of the facts, the circumstances of the
parties, and the nature of their property. Thiltges v. Thiltges, 247 Neb. 371, 527 N.W.2d 853
(1995); Kellner v. Kellner, 8 Neb. Ct. App. 316, 593 N.W.2d 1 (1999). Such action, of course, must
be within the statutory dictate that the division of the assets be reasonable, having regard for the
circumstances of the parties as provided in § 42-365, and that it satisfy the ultimate test of fairness
and reasonableness articulated by case law. Kellner, supra.
Justin argues that the court should have ordered the sale of Just-In-Feeds, with the proceeds
from the sale distributed to the parties. Despite Justin’s desire to sell the business, there is no
evidence that any effort was made to locate a buyer. In its valuation report, Veritas determined the
fair value of an equity interest in the business. The report indicated that the term “fair value”
applicable to a divorce valuation is defined as “the amount that will fairly compensate an owner
who was involuntarily deprived of the benefit of an asset where there is neither a willing buyer nor
a willing seller.” Justin also argues that the district court’s order placed him in a position where he
could not operate the business due to “inability to obtain the necessary credit and simultaneously
having a large judgment against him,” which he argues would be inequitable and unfair. We
disagree. The debts of the business were taken into consideration in the valuation by Veritas.
Further, the district court gave Justin a fairly significant amount of time to pay the judgment, at
the rate of $14,000 per year, plus interest.
Under the facts and circumstances in this case, we cannot say that it was unreasonable to
decline to order the sale of the business. Selling the company would eliminate Justin’s sole source
of income, especially where the record does not show that he has made efforts to look for other
work. Justin, as the sole owner of the business going forward, could sell the business if he
determines that to be the best course of action.
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The district court did not abuse its discretion in assigning Just-In-Feeds to Justin instead of
forcing a sale of the company.
Valuation of Cash in Gun Safe.
An appellate court’s review of a trial court’s judgment in dissolution proceedings is de
novo on the record to determine whether there has been an abuse of discretion by the trial judge,
whose judgment will be upheld in the absence of an abuse of discretion. In such de novo review,
when the evidence is in conflict, the appellate court considers, and may give weight to, the fact
that the trial judge heard and observed the witnesses and accepted one version of the facts rather
than another. Huffman v. Huffman, 232 Neb. 742, 441 N.W.2d 899 (1999); Catlett v. Catlett, 23
Neb. Ct. App. 136, 869 N.W.2d 368 (2015). While the court did not make a separate finding in the
decree regarding the valuation of the cash in the gun safe, the court included an additional $40,000
in its valuation of the Just-in-Feeds business.
The parties disagreed on the amount of money in the gun safe; Elizabeth testified that there
was around $40,000 in cash, whereas Justin claimed that there was only around $10,000 in cash.
While both parties were not completely sure on the amount, Justin’s valuation was based on “just
a guess.” Although Elizabeth admitted she did not count the bills herself, she did have an
explanation for how she arrived at the amount. The district court clearly accepted Elizabeth’s
version of the facts over Justin’s.
Although the evidence is conflicting, we cannot say that the district court abused its
discretion in valuing the cash in the gun safe at $40,000.
Child Support.
The Nebraska Supreme Court has concluded that it is generally customary for Nebraska
courts to use a 3-year average to calculate a parent’s income to determine child support when the
parent’s annual income fluctuates. See Gress v. Gress, 274 Neb. 686, 743 N.W.2d 67 (2007). In
Gress, the court considered the number of years a court should use when averaging an income
pursuant to the Nebraska Child Support Guidelines. The court concluded that “both here and
elsewhere, a 3-year average tends to be the most common approach in cases where a parent’s
income tends to fluctuate. Second, even among the jurisdictions which permit an average of more
than 3 years, courts appear reluctant to use more than a 5-year average.” Gress, supra.
Justin argued that the district court abused its discretion and reached an untenable result by
using a 3-year average to calculate his income, rather than a 7-year average of income from 2011
to 2017. Specifically, Justin argues that a 3-year average that included income from 2016, a large
outlier, dramatically increased the calculation of his income.
Even where it is possible for a district court to calculate a more accurate assessment by
including more years of income for a child support calculation, the Nebraska Supreme Court has
held that it is not an abuse of discretion for a court to use a 3-year average. Gress, supra. Here, the
district court’s use of a 3-year average was not so clearly untenable that it deprives Justin of a
substantial right or denies him a just result.
The district court did not abuse its discretion in using a 3-year average to calculate Justin’s
income for the purposes of child support calculation. However, it appears that the district court
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incorrectly calculated the 3-year average. In our review of the record, the first figure used by the
court, $35,211, is the business income reported on the parties’ joint Schedule E for 2017. The third
figure, $82,423, is the 2016 net income figure set forth in the income summary contained in the
business valuation. This “Statement of Income Summary” prepared by Veritas contains a summary
of the income, deductions, and net income for Just-In-Feeds from 2012 through 2016. The second
figure in the court’s summary, $47,488, is actually an average of the 2012-16 net income on this
income summary. If the district court’s intention was to use the most recent 3-year average, it
appears that it should have used the 2015 net income, which according to the income summary
was $54,374. Using these figures, the 3-year average income was $57,336.
Although we have noted the error in the district court’s calculations, using the accurate
numbers amounts to only a slight change in the 3-year average income for Justin; from $55,040 to
$57,336. Since neither party complained of this error, and a correction would amount to only a
small change to the ultimate child support determination, we decline to note any plain error. See
State v. Kays, 289 Neb. 260, 854 N.W.2d 783 (2014) (plain error exists where there is error, plainly
evident from record but not complained of at trial, that prejudicially affects substantial right of
litigant and is of such nature that to leave it uncorrected would cause miscarriage of justice or
result in damage to integrity, reputation, and fairness of judicial process).
CONCLUSION
We conclude that the district court did not abuse its discretion in assigning Just-In-Feeds
to Justin, valuing the cash in the gun safe at $40,000, or using a 3-year average of the business
income to determine Justin’s child support obligation. We affirm the decree in its entirety.
AFFIRMED.
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