Lead Opinion
[¶ 1] Kathleen Dvorak appeals and Bob Dvorak cross-appeals from a divorce judgment, entered after remand in Dvorak v. Dvorak,
I
[¶2] Bob and Kathleen Dvorak were married in 1990, after they lived together for two and one-half years on a family farm near Dickinson, which Bob Dvorak brought into their relationship. They had five children during their relationship and marriage. At the time of the March 2004 divorce trial, Bob Dvorak was a 43 year-old self-employed farmer and rancher with a tenth grade education. Kathleen Dvorak was 46 years old and had a general equivalency degree, a dental assistant degree, a two-year business degree, and a degree in massage therapy. When the couple met, Kathleen Dvorak was working full-time at the Social Security Office in Dickinson. After the birth of the couple’s second child in March 1991, Kathleen Dvorak quit her job at the Social Security Office and assumed the primary responsibility of caring for the children.
[¶ 3] In 2002, Kathleen Dvorak was accepted into massage therapy school in Albuquerque and Bob Dvorak signed a document that said she could take their five minor children to New Mexico while she pursued her massage therapy degree. She moved with the children to New Mexico in December 2002. According to Kathleen Dvorak, she intended to move back to North Dakota in August 2003, after she received her massage therapy degree.
[¶ 4] Bob Dvorak sued Kаthleen Dvorak for divorce in March 2003, while she was pursuing her degree and living in New Mexico with the children. The district court entered an interim order allowing Kathleen Dvorak to remain in New Mexico with the children during the divorce proceeding. The court subsequently granted the parties a divorce, awarded Kathleen Dvorak custody of the minor children, and granted Bob Dvorak reasonable visitation. The court denied Kathleen Dvorak’s request to relocate with the children to New Mexico and distributed the parties’ marital estate, which the court found had a total net worth оf $890,409.92. The court awarded $881,744 worth of property to Bob Dvorak and $8,715.92 to Kathleen Dvorak. The court said the parties had experienced an increase in net worth of $237,097 since their relationship began in 1988, and to make the distribution equitable, the court awarded Kathleen Dvorak an offsetting monetary award of $114,190. The court also ordered Bob Dvorak to pay Kathleen Dvorak spousal support of $1,000 per month for four years and child support of $510 per month.
[¶ 5] In Dvorak,
[¶ 6] On remand, the district court made further findings on the relocation factors and again denied Kathleen Dvorak’s request to relocate with the children to New Mexico. The district court also made further findings on the distribution of the parties’ marital property, and the court ultimately awarded Kathleen Dvоrak $6,000 in attorney’s fees for the previous appeal.
II
[¶ 7] Kathleen Dvorak initially claims the district court failed to hold an eviden-tiary hearing on remand. She claims she “informally” requested and was denied an opportunity to present new evidence.
[¶ 8] In Kautzman v. Kautzman,
[¶ 9] In Dvorak,
Ill
[¶ 10] Kathleen Dvorak argues the district court clearly erred in denying her request to change the children’s residеnce to New Mexico. She argues the court did not give due weight to the continuity and stability of the custodial family and to other non-economie factors. She also claims the court clearly erred in giving more credibility to Bob Dvorak’s testimony than to a custody investigator’s testimony.
[¶ 11] A district court’s decision on relocation is a finding of fact, which will not be reversed on appeal unless it is clearly erroneous. See Stout,
[¶ 12] Section 14-09-07, N.D.C.C., provides, “[a] parent entitled tо the custody of a child may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent.” In Stout,
[¶ 13] In Dvorak,
1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move,
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4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each parent will comply with such alternate visitation.
[¶ 14] Under the first factor, a district court must weigh the advantages of the move “while recognizing the importance of maintaining continuity and stability in the custodial family.” Tibor v. Tibor,
[¶ 15] In the prior appeal, we remanded because the district court only discussed a portion of the first factor relating to the economic benefit of the move without making findings on the other three factors, and wе recognized the first factor includes not only the economic advantage of the move, but also the non-economic advantages for enhancing the custodial
[¶ 16] On remand, the district court discussed and analyzed all four relocation factors. The court found Kathleen Dvorak had not sustained her burden of proving there were non-economic advantages to the children living in New Mexico. The court said although the children were involved in activities in New Mexico, they also were involved in a substantial number of activities in North Dakota. The court also questiоned Kathleen Dvorak’s credibility and motive on some issues, including visitation and relocation. The court found Kathleen Dvorak had interfered with Bob Dvorak’s visitation, she would not let him talk to the children on the phone without listening to the conversation, she blocked phone calls from him for two weeks, he was unable to contact the children about 500 times while she had caller identification on her telephone, and she failed to inform him about the children’s activities. The court also found evidence of alienation. The court found Kathleen Dvorak’s motive for relocation was to frustrate Bob Dvorak’s visitation, and his motive for opposing the move was a genuine interest in being close to his children and having them involved with him on the farm. The court also found relocation would have a negative impact on Bob Dvorak’s relationship with his children. The court’s decision was based primarily on credibility assessments, including the court’s determination that Kathleen Dvorak’s credibility on visitation and relocation issues was questionable.
[¶ 17] On appeal, Kathleen Dvorak essentially asks this Court to reweigh the relocation factors and the witnesses’ credibility. However, we do not reweigh the evidence or reassess credibility of witnesses, and we will not reverse a district court’s decision merely because we may have reached a different result. Hentz,
IV
[¶ 18] Kathleen Dvorak argues the distinct court clearly erred in distributing the parties’ marital property. She argues the court erred in dividing the increase in net worth of the marital property during the marriage. She asserts the court should have started with an equal division of the parties’ net worth and made any adjustments from that figure. She concedes the court made findings for each Ruff-Fischer factor, but she аrgues the findings still do not support the substantial disparity in the court’s distribution of the property.
[¶ 19] When a divorce is granted, a district court must make an equitable distribution of the parties’ property and debts under N.D.C.C. § 14-05-24(1). Dvorak,
the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing caрacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.
Bladow, at ¶ 7.
[¶ 20] In Dvorak,
[¶ 21] On remand, the district court made findings on each Ruff-Fischer factor. The court found a substantial part of the marital estate was acquired before the marriage and an equal distribution of the property would be inequitable because it would destroy Bob Dvorak’s ability to earn a living and provide necessary support to Kathleen Dvorak and the children. The court explained it has been difficult for Bob Dvorak to earn a living from the farm and ranch operation and his living expenses have come from the equity in the property. The court found the increase in net farm worth during the parties’ relationship and marriage was $223,757. The court’s findings of fact state that Bob Dvorak
owned 1760 acres of land prior to the marriage and acquired 1,640 after the marriage for a total marital estate of 3,400. Real estate has a current value of $269.71 per acre. If that is applied to the property acquired during the marriage, the property would have a current value of $442,324, without the debt. The marital share of the debt for the 1,640 acres would be $176,021. Considering all the factors, findings and trаnsfers, the Court awards total cash of $213,000 to [Kathleen Dvorak], which considers [her] contribution to the martial [sic] estate. Previously the Court awarded her $114,000. This would be an additional $98,981.
[¶ 22] Although the parties dispute the number of acres acquired after they began their relationship, the record generally reflects the land was acquired by trade and gifts between Bob Dvorak and members of his family. Although the exact number of acres acquired during the parties’ relationship and marriage is not clear and varies between the court’s memorandum decision and findings of fact, the findings of fact govern. See Stillwell v.
V
[¶ 23] Kathleen Dvorak argues she is entitled to attorney’s fees for this appeal. Bob Dvorak has not responded to her request for attorney’s fees, and instead he argues he should be awarded his attorney’s fees for this appeal. In her reply brief, Kathleen Dvorak again requests her attorney’s fees for this appeal and also claims she should be awarded $1,000 in sanctions for Bob Dvorak’s failure to cite to the record in his appellate brief.
[¶ 24] Wе deny Kathleen Dvorak’s request for sanctions. Under N.D.C.C. § 14-05-23, attorney’s fees may be awarded for an appeal in a divorce action. Simburger v. Simburger,
VI
[¶ 25] Although Bob Dvorak has cross-appealed from the judgment, in his appellate brief he states “that appeal is now moot.” We therefore dismiss his cross-appeal.
VII
[¶ 26] We affirm the district court’s relocation decision and property distribution, and we remand for consideration of attorney fees.
Concurrence Opinion
concurring in part and dissenting in part.
[¶ 28] I concur in parts I, II, III, and V of the majority opinion and respectfully
[¶ 29] “In reviewing a property distribution, we start with the assumption the property should be divided equally and, while a property division need not be equal to be equitable, the district court must explain any ‘substantial disparity.’ ” Linrud v. Linrud,
This creates a substantial disparity. In making the division, the Court has considered the Rujf-Fischer guidеlines, specifically, the Court has given weight to when the property ivas accumulated. According to the evidence, the plaintiff had a net worth of $644,647 in 1988, when they started to live together. It is appropriate for the Court to consider all the time the parties have lived together in dividing their marital property. Since 1988, his net worth has increased by $237,097. Thus, for there to be an equitable division, the defendant needs an offsetting monetary award of $114,190.00 to be paid within 90 days from the entry of the judgment.
(Emphasis added.) We held “[t]he district court did not articulate its reason for using the net income amоunts, and it did not explain why there was a substantial disparity in the property amounts.” Dvorak,
[¶ 30] The only additional explanation the district court gave for not dividing the property more equally was that “[i]t would be inequitable to divide the assets equally because it would destroy his ability to earn a living and provide the necessary support to Defendant and the children.” However, having made this finding, the district court then found: “As set forth in his testimony, it has been difficult for him to earn a living from this farm/ranch operation, and his living expenses have come from the equity in the property.” This does not indicate a well managed or viable operation. The district court also found that based on his 1999-2003 tax returns, Bob Dvorak has an average self-employment income for child support purposes of $16,413.40 per year. This finding also does not indicate successful operation of the farming enterprise as an economic unit. See Schoenwald v. Schoenwald,
[¶ 32] The district court also found that the total farm assets as of March 16, 2004, amounted to $1,252,026 and that the total farm liabilities amounted to $383,622 for a net worth of $868,404. This is a substantial net marital estate. The parties own 3,400 acres of land with equity of $533,378 ($917,100-$383,622), approximately of which half was purchased during the marriage. That leaves debt free all machinery, vehicles, equipment, crops, livestock and other farm assets which the court found valued at $334,926.00 as of March 16, 2004. With this amount of equity, it is difficult to understand the district court’s logic in concluding it would be inequitable to divide the assets more equally. Our Court has said, “[t]he goal of preserving a business, however, does not call for a windfall for one spouse.” Linrud,
[¶ 33] Preservation of a farming operation that is not generating enоugh income for Bob Dvorak to support himself let alone his five children is not a reason to refuse to divide more equally the property of the marriage. Bob Dvorak has an obligation to support his family and may need to get a job just like his former wife, Kathleen Dvorak will need to get a job.
[¶ 34] We have recognized that long-term marriages support an equal distribution of property. Schoenwald,
[¶ 35] The district court is required under the Ruff-Fischer guidelines to consider the circumstances of the parties financially, including whether they receive any income-producing property. Bladow v. Bladow,
[¶ 36] Finally, I am at a loss why the “farm assets” aside from the real estate are not part of the division of the marital estate. The award of property to Kathleen Dvorak is based on the district court’s calculation of the increase in the “farm net worth” from 1988 to 2004 of $223,757. I am of the opinion that the livestock, crops, hay and machinery were marital assets that should not have been considered by the district court in calculating what property Bob Dvorak brought into the marriage. A review of the machinery and equipment listed on the Rule 8.3, N.D.R.Ct., Property and Debt Listing indicates a significant amount was purchased after 1988. Also, the property listing indicates the parties owned $99,000 worth of breeding cows, 24 bulls worth $19,200, and 28 bred heifers worth $12,600. The parties also owned hay, straw oats, feed barley, and hard Red Spring Wheat valued at $60,350 at the time of the divorce. Although, it appears that Bob Dvorak brought into the marriage livestock, crops, machinery and equipment, these are the types of assets that are sold and replaced. The income from the sale of livestock and crops is used to provide the family income and to grow the farm operation. These are the types of assets that are difficult to trace and become co-mingled in the parties’ accounts and аfter acquired property. I am unable to find a list of the machinery and equipment in the record that Bob Dvorak brought into the relationship in 1988. If such were in evidence then it could be compared to the equipment listed on the Rule 8.3, N.D.R.Ct., listing and it could be determined whether any of that equipment or machinery is still in the parties’ possession. Bob Dvorak has not carried his burden of proof in that regard.
[¶ 37] After a review of this record and our case law, I am of the opinion the district court misapplied the Ruff-Fischer guidelines in determining the division of the parties’ property, and I am left with a firm and definite conviction a mistake has been made. I would reverse and remand for the district court to equally divide the marital estate between the parties.