Bilderback-Vess v. Vess
A-16-121
| Neb. Ct. App. | May 2, 2017Background
- Bonnie and Mark Vess divorced; while an appeal was pending they signed a stipulation (Aug 25, 2014) incorporated into a court order (Dec 2, 2014) requiring Bonnie to “fully participate” in filing amended joint tax returns for 2012 and 2013 and making Mark responsible for preparation costs and any remaining tax obligations.
- The parties had previously filed individual returns; amended 2012 joint return was filed and resulted in refunds and exhaustion of certain Heritage LLC net operating loss carryforwards.
- CPA testimony established that the amended 2012 joint return used up operating losses such that Bonnie’s original 2013 individual return would need correction and likely owe approximately $29,232 if amended.
- Mark filed the amended 2012 joint return but refused to file an amended 2013 joint return, citing concerns about alleged misconduct by Bonnie and possible criminal/civil exposure; Bonnie denied evidence of wrongdoing and testified allegations were resolved.
- The district court found Paragraph 3.0 unambiguous and that Mark willfully and contumaciously violated the court’s order by refusing to file the 2013 joint return; court allowed Mark to purge contempt by filing within 90 days or face 30 days incarceration.
- Mark appealed, arguing (1) he was not required to file a 2013 joint return and (2) his refusal was not willful because compliance could have exposed him to criminal liability.
Issues
| Issue | Plaintiff's Argument (Bonnie) | Defendant's Argument (Mark) | Held |
|---|---|---|---|
| Whether Paragraph 3.0 required filing amended joint returns for both 2012 and 2013 | Paragraph 3.0 plainly requires Bonnie to participate in amended joint returns for 2012 and 2013; Mark agreed to costs and obligations for both years. | Paragraph 3.0 benefits Mark and only Bonnie has affirmative duties; no obligation on Mark to file 2013 if no benefit remained. | The stipulation is unambiguous; Paragraph 3.0 requires filing amended joint returns for 2012 and 2013. |
| Whether extrinsic evidence should alter the plain meaning of the stipulation | Agreement must be enforced according to its clear terms; no ambiguity necessitating extrinsic evidence. | If ambiguous, the parties’ intent and surrounding facts show 2013 filing unnecessary once 2012 amendment exhausted carryforwards. | No need to consider extrinsic evidence because the clause is not ambiguous. |
| Whether Mark’s refusal to file the 2013 joint return was "willful" contempt | Willful means intentional violation of a court order; Mark intentionally refused to file despite agreeing to do so. | Refusal was not willful because compliance could have required attesting to potentially fraudulent information and exposed Mark to criminal liability. | Mark’s refusal was willful; he knowingly violated the clear court order and presented no evidence of impossibility or actual criminal risk. |
| Whether district court abused discretion in contempt determination and sanction | Contempt finding and purge condition are appropriate and supported by clear and convincing evidence. | Sanction or contempt finding was erroneous given facts about carryforwards and alleged misconduct. | No abuse of discretion; contempt finding and purge remedy affirmed. |
Key Cases Cited
- Hossaini v. Vaelizadeh, 283 Neb. 369 (civil contempt standard and burden of proof)
- Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 615 (contract construed as a whole)
- In re Estate of Balvin, 295 Neb. 346 (unambiguous contract enforced as written)
- Mansuetta v. Mansuetta, 295 Neb. 667 (appellate courts need not decide unnecessary issues)
- Locke v. Volkmer, 8 Neb. App. 797 (impossibility as defense to contempt)
- Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661 (overruling context cited for precedent)