Evenson v. Evenson

20060148 Shelly Evenson, Plaintiff and Appellant
v.
John T. Evenson, Defendant and Appellee
Appeal from: District Court, Northeast Judicial District, Walsh County
Judge M. Richard Geiger
Nature of Action: Child Cust & Support (Div.\other)
Counsel:
Appellee: Carter McDonagh, P.L.L.P.
Appellant: Fleming, DuBois & Fleming, PLLP
Term: 09/2007   Argument: 09/13/2007  10:00am
ND cite: 2007 ND 194
NW cite: 742 N.W.2d 829

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Issues: Appellant's Statement of the Issues:
1. The trial court erred in using a multiplier of one times gross commissions and valuing the insurance agency referred to as Tri-County Insurance for $135,000.
2. The trial court erred by not requiring John Evenson to pay all or a greater part of Shelly Evenson's attorneys' fees.
3. The trial court erred by not including income earned by John Evenson at Cenex Harvest States in calculating income for child support purposes.
4. The trial court erred by denying Shelly Evenson's motion for new trial based upon newly discovered evidence, i.e. the 2004 tax return.
5. The trial court erred regarding property distribution and by not requiring John Evenson to account for an account, which account is evidenced as Plaintiff's Exhibit No. 24(d).
6. The trial court erred as to the amount of spousal support awarded to Shelly Evenson.

Appellee's Statement of the Issues:
1. The trial court was not clearly erroneous in using a multiplier of one times gross commissions and valuing the insurance agency at $135,000.00.
2. The trial court did not abuse its discretion in not ordering John to pay Shelly's attorney's fees.
3. The trial court was not clearly erroneous for failing to include the income earned by John from Cenex Harvest States in calculating John's child support obligation.
4. The trial court did not abuse its discretion in denying Shelly's Motion for New Trial based upon newly discovered evidence.
5. The trial court was not clearly erroneous in its property distribution as John accounted for the asset in plaintiff's exhibit 24(d).
6. The trial court was not clearly erroneous in awarding Shelly spousal support in the amount of $700.00 per month for 4 years and spousal support of $400.00 per month for an additional two years after the initial 4 year period.


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Docket entries:
105/15/2006 NOTICE OF APPEAL: 05/11/2006
205/15/2006 ORDER FOR TRANSCRIPT: 05/11/2006
305/16/2006 Acknowledgement of order for transcript
405/16/2006 RETENTION OF RECORD ON APPEAL: 07/31/2006
506/07/2006 Notice of Suspension of preparation of the transcript for failure to pay
606/12/2006 RECORD ON APPEAL (5 vols.) (Not rec'd: 171--Order; 347--Order, which clerk indicates she was
706/12/2006 not able to find)
806/13/2006 Supplemental Clerk's Certificate dated 6-12-06 (Entry Nos. 381 & 382)
906/14/2006 Copy of Order Lifting Suspension of Preparation of Transcript as payment was received
1006/14/2006 MOT. EXT/TIME TRANSCRIPT
1106/14/2006 ACTION BY TRIAL COURT. Granted: 07/31/2006
1206/14/2006 2nd Supplemental Clerk's Certificate dated June 13, 2006 (Entry Nos. 383 & 384)
1306/16/2006 MOTION For Remand and Stay of Briefing Schedule w/Brief in Support (E-filed)
1406/16/2006 E-FILED MOTION (Mot/Remand)
1506/19/2006 ACTION BY CHIEF JUSTICE (Remand). Granted
1606/19/2006 ORDER OF REMAND
1706/20/2006 Order of Remand mailed to parties
1807/31/2006 MOT. EXT/TIME TRANSCRIPT
1907/31/2006 ACTION BY TRIAL COURT (TRA). Granted: 08/20/2006
2009/11/2006 TRANSCRIPTS DATED October 27, 2003, March 5, 2004, March 29, 2004, April 8, 2004,
2109/11/2006 September 22, 2004, January 7, 2005, January 25 - 28, 2005, November 2, 2005
2209/11/2006 DISK - TRAs 10-27-03, 3-5-04, 3-29-04, 4-8-004, 9-22-04, 1-7-05, 1-25thru28-05, 11-2-05 (e-mailed)
2310/09/2006 Letter dtd 10-6-06 from Mr. Dubois re status of case
2410/10/2006 should not proceed or be dismissed
2510/16/2006 Copy of Substitution of Attorneys (Lawrence D. DuBois replacing Daniel M. Traynor)
2602/23/2007 Letter from Mr. DuBois advising of the status of the remand for new trial
2703/01/2007 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
2803/07/2007 Reset due date for ATB now that Judge Geiger has entered an Order denying Mot/New Trial
2903/07/2007 Reset due date for ATB now that Judge Geiger has rules on Mot/New Trial. Granted: 04/16/2007
3003/06/2007 RECORD ON APPEAL after remand (6 Vol) w/Trans.(Entry Nos.392-399)and Exhibits(Entry Nos. 420 & 421)
3103/06/2007 Not rec'd w/ROA [Entry No. 171 (order), 181 (no dkt entry or doc) & 347 (order clerk can't find)]
3203/12/2007 CLERK'S SUPPLEMENTAL CERTIFICATE OF RECORD DATED MARCH 8, 2007 (ENTRY NOS. 425-431).
3303/16/2007 Deputy Clerk's ltr w/clarification about Entry Nos. 171 & 181-Neither dkt entry have documents.
3403/23/2007 Clerk's Supplemental dated march 21, 2007 with entries 432-435
3504/09/2007 MOT. EXT/TIME APPELLANT BRIEF (faxed letter from Lawrence D. DuBois dated 4-9-07)
3604/09/2007 E-FILED MOTION (MAT) (faxed)
3704/09/2007 ACTION BY CLERK. Granted: 05/07/2007
3805/07/2007 APPELLANT BRIEF
3905/07/2007 APPELLANT APPENDIX
4005/15/2007 Corrected TOA & pages 10, 11, 12, 14, 20, 21, and 38 for ATB
4105/15/2007 DISK - atb
4205/17/2007 Corrected page 15 for atb
4306/01/2007 MOT. EXT/TIME APPELLEE BRIEF (faxed letter dtd 6-1-07)
4406/01/2007 E-FILED MOTION (faxed)
4506/01/2007 ACTION BY CLERK (MAE). Granted: 06/13/2007
4606/22/2007 APPELLEE BRIEF
4706/22/2007 2nd Supplemental Clerk's Certificate dated 6/11/07 with entries 437-451. Entry No. 436 not received
4806/25/2007 DISK - aeb
4906/25/2007 Affidavit of Service by Mail dated 6-22-07 of Appellee's Brief
5006/26/2007 Clerk's Supplemental Certificate of Record dated June 25, 2007 (Entry Nos. 452-456).
5107/09/2007 REPLY BRIEF of Appellant (e-filed)
5207/09/2007 E-FILED BRIEF (RYB)
5307/10/2007 APPELLANT SUPPLEMENTAL APPENDIX (e-filed)
5407/10/2007 E-FILED APPENDIX (Supplemental Appendix)
5507/10/2007 Certificate of Service dated 7-9-07 showing electronic service of RYB on opposing counsel
5607/10/2007 & Certificate of Service dated 7-10-07 showing electronic service of Supplemental Appendix on
5707/10/2007 opposing counsel
5807/17/2007 Received 7 copies of RYB from Central Duplicating
5907/17/2007 Received 6 copies of RYB Supplemental Appendix from Central Duplicating
6008/09/2007 Fourth Supplemental Clerk's Certificate dated 8-7-07 (Entry Nos. 459, 460, & 462 -- Not rec'd:
6108/09/2007 457--Order; & 458--Receipt
6208/24/2007 Fifth Clerk's Cert. of ROA dated August 21, 2007, with entries 458, 463-472
6308/27/2007 Sixth Supplemental Clerk's Certificate dated 8-24-07 (Entry Nos. 473-481)
6409/07/2007 Seventh Supplemental Clerk's Certificate dated September 5, 2007 (Entries 482 thru 493)
6509/13/2007 APPEARANCES: Neil W. Fleming; Alan M. McDonagh
6609/13/2007 ARGUED: Fleming; McDonagh
6709/13/2007 ORAL ARGUMENT WEBCAST
6809/14/2007 Eighth Supplemental Clerk's Certificate dated 9-11-07 (Entry Nos. 494-496)
6910/01/2007 Ninth Supplemental Clerk's Certificate of Record dated 9/27/07 (Entry Nos. 497-506)
7010/15/2007 Tenth Supplemental Clerk's Certificate dated October 11, 2007 (Entry nos. 508-519;
7110/15/2007 not received was entry no. 507)
7210/22/2007 Entry No. 507 (Receipt) (attached to Clerk's 10th Supplemental Certificate of Record)
7311/30/2007 11th Supplemental Certificate of Record dated 11-26-07 (Entry Nos. 520-524)
7412/07/2007 12th Supplemental Certificate of Record dated 12-6-07 (Entry Nos. 525-532)
7512/13/2007 DISPOSITION: AFFIRMED
7612/13/2007 SPLIT OPINION: Maring, Mary Muehlen
7712/13/2007 CONCUR IN THE RESULT: Sandstrom, Dale V.: CONCUR
7812/13/2007 COSTS ON APPEAL TAXED IN FAVOR OF APPELLEE
7912/14/2007 Judgment Mailed to Parties
8001/08/2008 MANDATE
8101/14/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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