Martha Ann Cosgriff RUDH, Plaintiff and Appellee, v. Lawrence William RUDH, Defendant and Appellant.
Civ. Nos. 930253, 930342
Supreme Court of North Dakota
June 15, 1994
517 N.W.2d 632
Michael S. McIntee, McIntee Law Firm, Towner, for respondents and appellees. Appearance by Elizabeth Voeller.
PER CURIAM.
Gary Hoffart appealed from a summary judgment entered in county court denying Hoffart‘s petition to probate a codicil to the will of Joseph Voeller, entered on a “Motion for Summary Judgment on Petition for Probate of a Codiсil,” filed by Voeller‘s children. Distribution of the estate has not been approved; discharge of the personal representative is not final; no
The appeal is dismissed.
VANDE WALLE, C.J., and SANDSTROM, NEUMANN, LEVINE and MESCHKE, JJ., concur.
Patrick W. Fisher of McConn, Fisher, Olson & Daley, Grand Forks, for plaintiff and appellee.
LEVINE, Justice.
Lawrence W. Rudh appeals from judgment granting a divorce to his former spouse, Martha Ann Cosgriff Rudh, and from the trial court‘s order granting Martha temporary spousal support and attorney fees to defend this appeal. We affirm in part and reverse in part and remand.
Lawrence and Martha were married on November 25, 1983, in Fargo. On November 21, 1983, Martha and Lawrence entered into a premarital agreement, which purported to remove Lawrence‘s lake home from the couple‘s marital property. Three children were born during the marriage. Lawrence and Martha separated in January 1992 and were divorced on July 19, 1993.
During trial, Lawrence offered into evidence the premarital agreement. Martha objected, arguing that Lawrence had failed to raise thе premarital agreement as a defense in his answer to the complaint, and had failed to disclose the premarital agreement in his answers to Martha‘s interrogatories. The trial court received the premarital agreement into evidence, subject to Martha‘s objection. In its memorandum decision and order, the trial court stated that by failing to assert the premarital agreement as a factor affecting property distribution in his answers to Martha‘s interrogatories, and because Martha was not represented by counsel when she signed the agreement, Lawrence had “waived his right to rely on the [premarital] agreement,” and thus the trial court refused to enforce it.
The trial court awarded physical custody of the three children to Martha and ordered Lawrence to pay child support. The trial court did not order spousal support, but expressly reserved jurisdiction to award spousal support in the future, should it become necessary. The trial court accepted Martha‘s valuation and allocation of the couple‘s
I. Findings of Fact
Lawrence challenges the trial court‘s valuation of the marital estate, division of property, and determination of child support.1 We hold that these determinations are not clearly erroneous, and accordingly, affirm under
II. Temporary Spousal Support
In its memorandum opinion accompanying the divorce judgment, the trial court found that Martha and the children required $4,500 a month to maintain the standard of living to which they had become accustomed. See Bagan v. Bagan, 382 N.W.2d 645, 646 (N.D. 1986). The triаl court awarded this amount to Martha in the form of income from the property awarded to her and child support. When the trial court granted a stay of the judgment, it also ordered Lawrence to pay temporary support, $2,623 per month in spousal support and $1,877 per month in child support, to provide for Martha‘s and the children‘s living expenses during the pendency of this appeal.
Lawrence argues that the trial court should have correlated the award of temporary spousal support with the income Martha would receive from the property awarded her in the judgment to avoid “double recovery” if we affirm. On the other hand, Martha‘s attorney assures us that the trial court will credit Lawrence for support payments in its accounting. It is not clear from the record who is right. In any event, it is clear to us that the trial court awarded temporary child and spousal support to counteract the effect of the stay, which prevented Martha from receiving income from the assets awarded her during the pendency of the appeal. The trial court obviously did not intеnd Martha to receive double payments during the pendency of the appeal, nor does Martha so argue. Therefore, we remand so that the trial court can offset the amount of the temporary spousal support payments against Martha‘s right to the income from her assets during that time.
III. Future Spousal Support
Lawrence argues that the trial court erred in retaining jurisdiction over spousal support. The parties have not asked us, nor do we choose, to revisit Becker v. Becker, 262 N.W.2d 478 (N.D. 1978). In Becker, we held that where a trial court makes no initial award of spousal support and fаils to reserve expressly its jurisdiction, the trial court subsequently lacks jurisdiction to order spousal support. Here, a substantial portion of the marital estate is mineral interests. The trial court expressed its concern about the volatility and possible depletion of some of the income-producing assets awarded to Martha and expressly reserved jurisdiction should the changing conditions warrant an award of spousal support. Given the trial testimony and arguments on appeal regarding the fluctuating value of and income producеd by the assets, we conclude that the trial court did not abuse its discretion in exercising caution and reserving its jurisdiction over spousal support.
IV. Premarital Agreement
Lawrence argues that the trial court erred in refusing to enforce the premarital agreement. The trial court refused to enforce the premarital agreement because Martha “was not represented by counsel, and the existence of the agreement was not asserted by [Lawrence] in answers to interrogatories as a factor affecting property distribution.” We need not rеach the issue of whether the premarital agreement was invalid solely for lack of counsel, as we conclude that the trial court did not abuse its discretion in refusing
Martha submitted the following interrogatory to Lawrence:
“41. List any other factors which you claim the court should consider when making an ‘equitable division’ of your property so as to give you special consideration in the form of additional property, and state with particularity and not in general terms, your reasons or basis for such a claim.”
Lawrence responded only by objecting to the interrogatory on the ground that it did not seek the disclosure of facts and invoking the attorney-client privilege. Lawrence did not disclose his intent to rely on the premarital agreement until his deposition, thirteen days before trial.2
Although the trial court stated only that Lawrence had “waived his right to rely on the [premarital] agreement,” Lawrence characterizes the trial court‘s refusal to enforce the premarital agreement as the imposition of a discovery sanction under
However, our analysis does not end there. The trial court‘s conclusion that Lawrence “waived” his right to rely on the premarital agreement and its refusal to enforce the agreement may be understood as the exercise of its inherent power to protect the integrity of its processes by imposing sanctions. See Bachmeier, supra at 532-35. We will overturn a trial court‘s sanctions based on this inherent power only upon a showing that the trial court abused its discretion. E.g., id. at 533.
We have not uncovered, nor have the parties cited, a case directly on point. On several occasions, however, we have upheld a trial court‘s exercise of its inherent power to impose sanctions for a party‘s failure to supplement its answers or to give correct answers to interrogatories. In Benedict v. St. Luke‘s Hosps., 365 N.W.2d 499, 503-04 (N.D. 1985), we upheld the trial court‘s refusal to allow the plaintiffs to present evidence of specific hospital standards where the plaintiffs did not indicate in thеir answers to interrogatories that they intended to rely on those standards. The defendants did not move for an order to compel discovery, but objected to the plaintiffs’ attempt to introduce such evidence at trial. We analyzed the trial court‘s action as an exercise of its inherent power to impose sanctions for giving an incorrect response or for failing to supplement a response to an interrogatory. In Dewitz by Nuestel v. Emery, 508 N.W.2d 334, 338-40 (N.D. 1993), we upheld the trial court‘s exclusion of the defendant‘s expert witness as a discovery sanction for failing to supplement her answers to interrogatories within a reasonable time before trial. The plaintiffs did not move for an order to compel discovery, but moved for the exclusion of the expert witness upon receiving, thirty-nine days before trial, a supplemental answer listing the opinions to which the expert witness would testify. We construed the trial court‘s order granting the plaintiffs’ motion as a sanction based on its inherent authority.
This case is not much different from Benedict and Dewitz. Although Lawrence‘s answer to Martha‘s interrogatories could be deemed evasive or incomplete and therefоre governed by
V. Attorney Fees
Lawrence argues that the trial court abused its discretion in awarding Martha $6,000 in attorney fees to defend Lawrence‘s appeal. This case is different from most of our cases involving attorney fees on appeal because here we are faced with review of a preliminary award of attorney fees, before any expenses have been incurred. Preliminary аwards of attorney fees are appropriate where necessary to finance the appeal. See Severson v. Severson, 482 N.W.2d 594 (N.D. 1992). “[M]any spouses or their attorneys may well have no real choice but to seek an early award in order to finance the appeal.” Id. at 595 n. 4. Although this court and the trial court have concurrent jurisdiction to award fees on appeal, we prefer that the trial court make the initial determination of attorney fees on appeal in a divorce action. Orwick v. Orwick, 152 N.W.2d 95, 97 (N.D. 1967). The trial court is in the superior position to consider the parties’ need for and ability to pay attorney fees under
In Pozarnsky v. Pozarnsky, 494 N.W.2d 148, 151 (N.D. 1992), we reversed the trial court‘s award of attorney fees in an action to modify custody and child support. We held that the party‘s affidavit, which was “not in the form of the financial statement prescribed by
Lawrence contends that “there is no evidence” to support the trial court‘s award of attorney fees to Martha. We disagree, to the extent that there was evidence of Martha‘s need for and Lawrence‘s ability to pay attorney fees. Although Martha did not provide a financial statement in accordance with
More troubling, however, is the lack of evidence to support the amount of attorney fees Martha would incur on appeal. Of course, a preliminary award of attorney fees involves some speculation, but it need not be,
Affirmed in part and reversed in part and remanded.
VANDE WALLE, C.J., and NEUMANN and SANDSTROM, JJ., concur.
MESCHKE, Justice, concurring.
I concur in the result of the majority opinion. While I agree with the majority that a party “who gives an incorrect, yet, unsupplemented, answer is properly subject to sanction,” I write separately to question the use of inherent powers, rather than the discovery rules, to justify the sanction imposed in this case. I would say that
There are limits to a court‘s inherent powers where rules of civil procedure apply. See Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 108 S.Ct. 2369, 2373, 101 L.Ed.2d 228 (1988) (holding that a court cannot rely on supervisory power to avoid the clear mandate of a procedural rule); United States v. One 1987 BMW 325, 985 F.2d 655, 661-62 (1st Cir. 1993) (where
Unless there has been a complete failure to respond or object to the interrogatory set, this court in prior decisions has avoided discussing the potential application of
Evasive or incomplete answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
The limiting clause in 37(a), “[f]or purposes of this subdivision,” contrasts with Rule
One commentator explains:
In the case of failure to answer interrogatories, or respond to a request for inspection, the question as to whether there has been a failure to answer is not always so easily decided. When no answers at all are forthcoming, the party served with the interrogatories or requests is obviously derelict and within the coverage of Rule 37(d). When the only response to a set of interrogatories was the statement “unable to respоnd,” the court held that such an answer was no answer at all and sanctionable under Rule 37 as a refusal to answer. Short of this, however, are answers which have been served but are false, evasive or inadequate, not sworn, or late. Further, since normally interrogatories and requests are served in sets, the party served with the set may serve answers, but for one reason or another fail to answer one or more individual items. The nice distinction between conduct warranting sanctions under (d) and conduct requiring an order of the court under (a) before sanctions can be applied, has not always been made, but is often unnecessary because only rarely is an action actually dismissed, or a default judgment entered, without giving the delinquent party an opportunity to answer. This matter was made less important by the 1970 amendments, for while it seems that relief as to failure to answer or object to a particular interrogatory or request falls under Rule 37(d) and permits the immediate imposition of sanctions, the range of sanctions is much wider.
4A Moore‘s Federal Practice ¶ 37.05, pp. 37-125 et. seq. (2d ed. 1994) (footnotes omitted). In a case like this, where there is absolutely no reason for the interrogating party to seek an order to compel an answer, Lawrence‘s spurious objection and claim of a non-existent privilege was more like “no answer at all” than an incomplete answer, when it failed to disclose a key item that Lawrence sought to rely on at the trial.
For these reasons, I would affirm the trial court‘s refusal to enforce the premarital agreement on
Notes
“(a) Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
“(2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 30 and 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. While taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.
“If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c).
“(3) Evasive or incomplete answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
“(b) Failure to comply with order.
“(2) Sanctions by court in which action is pending. If a party or an officer, director, superintendent, or managing agent of a party or a person designated under rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide [or] permit discovery, including an order made under subdivision (a) or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure that are just, and among others the following:
“(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in аccordance with the claim of the party obtaining the order;
“(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
“(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
“(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as а contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.”