*1
Kevin G. Defendant Appellant.
No. 20070070.
Supreme Court of North Dakota.
Jan. *2 Probst, Firm,
Paul M. Probst Law Mi- not, N.D., plaintiff appellee. Office, Slorby, Slorby P. Tom Law Mi- not, N.D., appellant. for defendant and SANDSTROM, Justice. appeals
[¶ 1] Kevin Overland
from a
judgment, arguing
divorce
the district
inequitably
court
divided
in favor
ex-wife,
of his
Brenda Overland. He also
the district court’s award of
support was erroneous. We affirm the
distribution,
and reverse and re-
spousal support.
mand the issue of
I
[¶ 2] Kevin and Brenda Overland were
January
married on
and had no
children
Brenda Ov-
in February
erland sued for divorce
grounds
on the
of irreconcilable differ-
September
ences. The case was tried in
The district
November 2006.
partial judgment granting
issued a
the di-
At
vorce December 2006.
the time of
divorce,
years
Brenda Overland was 47
old,
earning
yearly, and Kevin Ov-
old,
years
jurisdiction
erland was 51
with an annual
The district court had
VI,
8,§
under
art.
income of
N.D. Const.
§
N.D.C.C.
27-05-06. Kevin Overland’s
entered into a limited
4(a).
appeal
timely
N.D.R.App.P.
under
*3
agreement, which the
property settlement
jurisdiction
This Court has
under N.D.
accepted.
district court
The court divided
VI,
§§
Const. art.
2 and
and N.D.C.C.
remaining property
the
and debt
in its
§ 28-27-01.
fact,
January
findings
of
conclusions
law,
judgment.
of
for final
and order
II
remaining
court found the
marital estate
the
contained assets of
and debt of
dividing
district court erred in
the marital
$155,744 for a net marital estate of
estate that remained following
parties’
the
$165,296.
agreement.
settlement
Under
Brenda Overland was awarded
14-05-24(1),
§
N.D.C.C.
the district court
$104,402,
property worth
less debt of
shall
equitable
make an
distribution of the
$22,665, and Kevin Overland received property
and debts of the
after
$27,138,
property worth
less debt of granting a divorce. When a court distrib
party
Each
also received one-half utes marital
all
property,
parties’
of
proceeds
the net
from the
assets must be considered to ensure the
sale
their home.
Dvorak,
equitable.
division is
Dvorak v.
¶ 21,
2005 ND
guidelines, CROTHERS, J., C.J., Brenda Overland’s and DANIEL J. regarding ed at trial for, ability to Kevin Overland’s need concur. Brenda in this case.
pay, spousal support MARING, Justice, part concurring for general request made Overland dissenting part. complaint. in her She spousal an affi- spousal requested also majori- I II of the part concur to Kevin Overland’s Mo- response davit in ty which concludes the opinion, de- The court for an Interim Order. tion marital was not court’s division of support, concluding interim nied clearly erroneous. I dissent from the re- ability to not have the did Overland I opinion. mainder of the would affirm It also found pay spousal support. be- trial court’s award she could draw had other assets cause it is not erroneous. There was no herself. upon recognized The trial court indicating cir- at trial presented evidence § Section governs. N.D.C.C. 14-05-24.1 the interim changed had since cumstances 14-05-24.1, N.D.C.C., provides: order was issued. circum- Taking into consideration the Brenda Over- The court awarded the court parties, stances for the same reasons land require party pay spousal one distribution of unequal her an awarded any period of time. party to the other did not con- property. marital The court may modify spousal sup- The court need for Brenda Overland’s sider any port orders. not submit support, because she did *6 that need. The regarding at trial evidence correctly The trial court took into consid- to award as court seemed by parties eration the circumstances of the property to Bren- a method to award more guidelines. addressing the Ruff-Fischer However, will not this Court da Overland. Sack, See Sack rationale on the district court’s speculate support. Because awarding spousal Although trial court found the [¶ 26] regarding need for there was no evidence disadvantaged Brenda Overland was not ability pay marriage in sense that she did by the the trial, we are left with support presented remain out of the work force and did not made a firm a mistake has been conviction earning capacity, of her not suffer loss spousal sup- awarding Brenda Overland financially disadvantaged did find she therefore reverse and remand port. We by to Kevin Overland. The proceedings further the district court for trial court found that Brenda Overland for, and Overland’s need regarding Brenda $100,000 entered the with pay, spousal Kevin Overland’s Af- and no debt. property division and support. Because eight years ter she left the intertwined, the court spousal support are she marriage with the retirement assets division also reconsider vehicle, marriage, her earned to her on remand. of the net goods,
household one-half IV parties’ proceeds from sale Overland, $37,401. in the amount of Kevin part, affirm reverse We hand, mar- the other who entered the further on part, proceedings and remand for debt, virtually but riage property, with opinion. consistent with this $37,401 port, left the with of the home attempt Court will to do so.” proceeds personal property. and some The trial court awarded Brenda Overland court The trial found that there was no support in the amount per of $500 income-producing beyond month, sixty $30,000 for months or over years. $30,000 small amount of cash each received from five This award is the same proceeds of the home sale. The trial amount the trial court found Brenda Over- court found that this circumstance favored land had premarital used from her savings of spousal support to Brenda for the payment down on the home and for offset, “to degree, Overland to some the benefit of Kevin Overland. damage
financial she suffered Perhaps the court could have or- marriage.” dered pay Kevin Overland to this amount $30,000 The trial further found of from his share of the home sale that Brenda put However, Overland as a proceeds. ordering spousal sup- payment home, down on paid actually the marital port benefits Kevin Overland be- $3,000, off Kevin Overland’s boat for payments made cause the are tax deductible payment $2,000, a down camper on the him and made years. over five See Ness Ness, gave approximately (N.D.1991); (2000). jobs while he was between §§ doubt “[n]o I.R.C. 71 and 215 The amount money given there was other to Kevin Kevin present Overland will value during the marriage.” The trial court terms is much than less found Kevin ap- Overland had received Also, in the division of the mari- proximately of Brenda Overland’s by court, tal estate assets of premarital savings. home, personal were the prop- Brenda Overland erty, was not re- and Brenda Overland’s retirement stored to her pre-marriage condition assets. parties stipulated to the divi- through division. She did sion of other property and to the exclusion not receive proceeds from the home sale of that from consideration down she had made. trial court. accepted The trial court The net from the sale of the stipulation. The trial court found that *7 split home were between the parties Brenda Overland’s retirement assets had 50/50. addition, Kevin Overland received the been prior accumulated to marriage. camper boat and the personal property. as The net difference in value between what Brenda Overland was awarded as The trial court found: “To the and what Kevin Overland was awarded extent that Kevin allowed Brenda to de- in of favor Brenda Overland. benefit, plete savings her for his he has That represented by sum was Brenda Ov- ability reduced her support herself out premarital erland’s premarital savings.” $80,907. Therefore, which totaled Brenda The trial court found that Brenda Over- Overland did not even receive the total land should recover her down sum of all of her retirement assets she the home. The trial court concluded that accumulated to the marriage in the division of property, “[t]he and consider- division of the marital estate. The un- spousal ations of support are intertwined equal property remedy division did not 181, concepts. Hagel Hagel, v. “financial disaster” the trial court found Therefore, 721 1.” N.W.2d the trial court marriage this was for Brenda Overland. concluded that the extent “[t]o Court can restore pre- Brenda to some The trial court found Brenda Ov- through spousal sup- condition economically disadvantaged by erland was
74
significance
to the
finding
a trial
this
relates
have never said
marriage. We
erroneous,
it
but
earnings disparity,
is
to the
spousal support
not award
court could
if it
to the fact that both
relates
disadvantaged spouse.
economically
an
years
number of
roughly
have
the same
division and
[property
We have said
and each
age
normal retirement
work to
interrelated, and the
are
spousal
work,
appears
correct.
can continue
apply
also
when
guidelines
Ruff-Fischer
spousal
determining whether
a
Another
factor
Ruff-Fischer
Heinz,
v.
2001
Heinz
should be awarded.
awarding spousal
court must consider
(citation
147, 11,
443
632 N.W.2d
ND
there is an award of
support is whether
775,
omitted);
Ruff, 78 N.D.
52
v.
v.
income-producing property.
Ruff
Schiff
Fischer,
(1952);
v.
139
Fischer
42,
N.W.2d
191.
Schiff, 2000 ND
611 N.W.2d
(N.D.1966).
have affirmed
We
N.W.2d 845
specifically
found
“[t]here
support where
beyond
awards of
income-producing property
disadvantaged by
economically
spouse was
amount of cash that each will receive
small
a
permanent
reason of
of the home sale are
once the
under rail
benefits
divided.”
reduction
survivor’s
contributions
greater
road retirement and
trial court
It is evident that the
marital ex
joint
accounts to
toward
award to ad-
crafted
Ness,
467 N.W.2d
717-18.
penses. See
financial disadvantage
particular
dress the
mar
recognized that while
Our Court has
a result
that Brenda Overland suffered as
factor, spousal support
a
riage duration is
With
even when
appropriate
is sometimes
earning
year,
a
and with
Weigel Weigel,
duration was short. See
than Brenda Over-
and less debt
462. The
ND
604 N.W.2d
land,
pay.
he has the
Brenda
all of the
trial court must consider
Overland,
hand,
on the other
earns
Ruff-
specifical
but need not
guidelines,
Fischer
$37,401 in
year
a
and has
the same
findings.
in its
See
ly address each one
no other evidence of
the bank. There is
DeMers, 2006 ND
DeMers v.
property in this record.
income-producing
a substantial
have held
We
factors
appropriate
con
disparity
income is
award of
here. The assets
support.
minimal
awarding spousal
income-producing.
and not
sideration
Wald,
disparity
296-97 There is
substantial
Wald
(N.D.1996).
parties.
earning capacity
“Questions
divi
into
brought
substantial
cannot be consid
sion
did not.
vacuum,
in a
but must
separately
ered
economically
Brenda Overland has been
*8
together, espe
be examined and dealt with
disadvantaged, and the trial court found
cially
large
when there is a
difference
she should be awarded
spouses.”
Fox
earning power between
a
duration.
a small amount for
short
Fox,
68, ¶ 22,
75 Corbett, 103, 13, could herself in the interim and 2002 ND 646 N.W.2d v. presented that there no evidence indicating changed circumstances had spous- A trial determination of court’s since the interim order was issued. support, applies al to which it the Ruff- as a find- guidelines, Fischer is reviewed The record indicates Bren- if fact and will be overturned ing of monthly da living Overland established ex- clearly finding it erroneous. A of fact is affidavit, penses of in her financial is erroneous if it is induced an mortgage payment, with the law, erroneous view of the if there is no mortgage payment without the at the in- if, it, although evidence to terim hearing spousal for support. it, there some evidence to on trial court in on opinion spousal interim support stated: evidence there is a definite entire and firm a mistake has been conviction seriously disputed While it cannot be made. that Brenda is need interim [in] spousal support, the evidence indicates ¶ (citations omitted). 4 Id. at making payment that —after of all the Sack, 57, 711 In 2006 ND monthly obligations to assigned him— 157, we directed the focus will not have the to spousal support awards back to the Ruff- spousal support to Brenda on interim guidelines. It is for the trial court Fischer basis, and be his provide still able for weigh factors. Id. at (i.e., food, clothing, own basic needs majority opinion 11. The in its is at- etc.). shelter, care, medical The Court to return to a “minimalist” defini- tempting also observes that Brenda has other as- spousal support. tion of need for Our (i.e. quarter sets a of land located in adopted equitable Court doctrine has Dakota) Hettinger County, North which spousal support, rejecting the minimal- upon provide she be able to draw Fox, ist doctrine. 2001 ND Fox support for herself and her son in the recognized have N.W.2d 660. We Accordingly, interim. Kevin will not be that even if a can achieve spouse some required pay any amount of measure of self it does not fore support to Brenda in the interim. close an support. award of See determination, making the Court Weir, (N.D. Weir v. 374 N.W.2d required finds that Kevin will be to sat- 1985); Klootwyk Klootwyk, Van v. Van isfy following obligations from his 377; 1997 ND Moilan $3,400.00: monthly net income of ¶¶ Moilan, 15-16, Therefore, N.W.2d 81. even if Brenda monthly living
Overland could meet her income,
expenses year on her
does not follow under these circumstances cannot, discretion,
a trial court in its
spousal support. majority relies on the fact
that the trial court did not award Brenda
Overland interim to con-
clude did not have Kevin Overland added.) (Emphasis major- pay spousal support. The ity incorrectly findings draws the conclusion incorporated these the trial court found Brenda Overland into its Interim Order dated March clearly erroneous. I would any “If law and is not found: there and further judgment. affirm the with maintain- utility bills associated other are not included family home which ing the MARY MUEHLEN MAKING 41] [If list, Over- [Kevin in the Defendant those as required pay will be land] KAPSNER, Justice, in concurring part granted occupation The trial court well.” dissenting part. pendency family during home of the through join paragraphs I action to Brenda Overland. the divorce Maring’s paragraph 37 and 40 of Justice ordered Brenda Overland was join para- I separate opinion. do not insurance, her her auto payment,
vehicle graphs and 39 the facts dis- because bill, cable telephone cellular television/in- brought there were not to the cussed home, family supplied to ternet service trial, during and there is court’s attention her- clothing for provide and to food and trial court considered no indication the self and her son. those facts. by post-tri- made Although payments brought Brian Overland 39] [¶ al motions to reconsider both during pendency spousal support. The trial court reiterat- spousal sup- labeled the divorce were not applied ed it had factors for Brenda Over- port, they were spous- to decide both division land, family who lived support. al Contrary to of the divorce. pendency states, majority circum- opinion what the of the circumstances The “consideration parties” by the time of the called for 14- changed stances had at Section 05-24.1, NDCC, by is a consideration divorce; and the the home had been sold factors. Court and debt mortgage, mortgage, second first Ruff/Fischer believes that it did consider Court pro- from the paid were Citifinancial factors, sup these and made decision longer payments of the sale. The ceeds light of those ported the evidence by Kevin Overland. paid needed to be factors. had a home in longer Brenda Overland no of a mort- which to live without The trial court did not err gage or rent and utilities. Brenda Over- Sack, doing so. Sack v. living expenses had more
land therefore
and award of spousal the record and supported by
Overland is