*1 unnecessary it to address the beyond a reasonable we deem harmless error constitutionality of these Rules. doubt, review the entire the court must determine, all light and record
evidence, alleged of the effect probable Ill rights. Id. at the defendant’s upon error hold the introduction of the [¶ 32] We constitutional error 7. A federal videotape testimony violated Blue’s consti- if the court is convinced harmless declared right to confrontation in violation tutional to the did not contribute the error and the violation not was Crawford Id. verdict. beyond a reasonable harmless doubt. four-year-old Greger- statement of the videotaped of the The admission son, the forensic interviewer with Chil- consid- testimony in this case cannot be Center, testimonial, Advocacy dren’s beyond a reasonable harmless error ered not for cross- the child was unavailable videotape was the central doubt. The and Blue did not purposes, examination jury. Al- of evidence before piece opportunity have an to cross-examine other corroborative evi- though there was If videotape child at trial. is to be dence, from the child’s including testimony evidence, Blue must have an introduced the child’s state- physician, mother and opportunity to cross-examine the child at to the forensic interviewer ments trial. reverse and remand for further We Advocacy provided Center Children’s proceedings not inconsistent with this the incident and detailed account of most opinion. jurors only opportunity afforded the child happened had from the hear what WALLE, GERALD W. VANDE not videotape If the allowed herself. C.J., SANDSTROM, DALE V. evidence, seen jury into have CROTHERS, JJ., concur. DANIEL J. would have the child and the conviction hearsay statements from been based on in the result. MARY concur We cannot conclude people. other MUEHLEN MARING. beyond harmless error was
Craivford reasonable doubt.
E argues Blue also N.D.R.Ev. ND 133 (child’s 803(24)(b)(ii) statement about sexu- ULSAKER, Larry Plaintiff witness) unavailable as a al abuse when Appellee (residual are exception) and N.D.R.Ev. holding light unconstitutional parties agree Both these rules Crawford. Bright WHITE, Defendant C. True they unconstitutional as relate testi- Appellant. argues The State
monial statements. No. 20050207. remain as useful tools deal- rules should statements, be- ing with nontestimonial of North Dakota. Supreme Court cause, extent a nontestimonial state- to the 29, 2006. June issue, problem does ment is Crawford already Having not exist. determined violated, rights
Blue’s constitutional
Ulsaker, and the award of inadequate off-set the Because the dis- unequally the property trict court divided *3 adequately its distribu- explaining without tion, we reverse and remand.
I Bangkok, in couple first met
Thailand, eventually in and were Columbia, Missouri, in married on October years. lasted 16 divorce, At the time Ulsaker old, healthy, years living on his and years ranch near Medora. White was 66 old, healthy, living and in Dickinson. Both degrees: hold advanced Ulsaker degree in and a has a master’s soil science in a plant physiology; White has doctorate guidance in counsel- degree master’s and a doctor- ing and substantial hours toward in ate communications. lifestyles. couple lived eclectic universities and taught various
Ulsaker develop- agricultural overseas on worked currently operates He a projects. ment approxi- ranch near Medora and receives per mately government benefits security and civil ser- from social month income is average yearly gross His vice. $77,000. guid- was a White approximately sys- in the Denver school ance counselor tem, a and fabrication design started dress Denver, design- and continued business Columbia, clothes in Mis- selling ing Nordsven, Mary Hardy, E. Maus & continued clothing Her souri. business Nordsven, P.C., Dickinson, ND, plain- Dakota, but was moved to North when she appellee. tiff and in Dickin- successful when she lived not as ND, Buresh, Dickinson, Eugene F. currently She receives and Minot. son appellant. defendant in- a month rental approximately $600 receives from she owns and come KAPSNER, Justice. security than social less $100 expenses approximately Her appeals True month. Bright C. White average yearly month. Her judgment arguing property per from a divorce $20,000. Larry approximately income is gross in favor of inequitably divided Q. marriage, Okay. very Before their White And from the beginning, very beginning, despite from sign prenuptial agree- asked Ulsaker Larry sign fact that didn’t ment, pre- he refused to do. When nuptial agreement your he followed why sign prenuptial he did not asked request kept separate assets stated: “I didn’t agreement, Ulsaker see your from assets? it, any going keep we were reason for things anyway and that’s our generously A. him did ask for his. to, it so what difference what amounted Q. you kept your The two of paper make?” At the time piece does a separate, you did not? marriage, believed she had *4 Yes, A. we did. Ulsaker, par- more assets than but neither parties enjoyed a comfortable ty complete understanding a had living during standard of marriage, their spouse. total of the other This frugal expenditures. were with their separation through- finances continued The combined assets of the marriage. parties kept prop- out the Both In substantial. the N.D.R.Ct. 8.3 names, erty paid in their own their own listing, and debt claimed the White taxes, and filed tax re- $6,123,949.78 had and Ulsaker claimed the couple turns. The did share household $5,526,214.31. actually amount was expenses through joint checking a account. explicit court did not make an find- parties’ described the understand- ing on property. the value of the marital ing marriage. at the time of Approximately one million dollars worth of Q. Now, apparently you came to this name, assets were in White’s with the
marriage understanding that Lar- remaining four to million five dollars at- ry’s mother father were tributable to Ulsaker. The assets of both wealthy? parties included inherited property. The parties reported no debt. A. Yes. trial, After a bench the court 6]
Q. you That’s correct? And Idid hear granted separately their owned on, testify early understanding that ' property. Consistent with Ulsaker’s rec- family wealthy, that his it was ommendation, the court awarded White you[r] never intention to into come $1,000 spousal support the amount of get family’s to at his life, per month for until or she remarried. wealth? $250,000 The court also awarded aWhite A. purpose That was the pre- the payment. cash payment Part of the cash nuptial agreement that he never re- $100,000 represent- was a return of sponded to. ed the value of Medtronic stock. The re- So, Q. very beginning you at the never maining help was to White “re- Larry’s intended family’s establish her life.” The of Med- you? wealth would come to stock, $10,000, originally tronic valued at promised, yes. A. I even given to White from Ulsaker’s mother. Q. You even promised Larry? that to White testified she transferred the stock to Ulsaker to show that she did not come No, family, Larry, A. to his whole to marriage looking money. into the did not come into marriage the look- ing money and I order, made that clear Following the Ulsaker re- ensuing years my the fifteen quested a trial on newly new the basis of money. discovered evidence. Ulsaker discovered Neidviecky testi- that demonstrated White’s evidence Neidviecky, stock that she transferred the mony guidelines, a 255. Under was incorrect. The court issued Ulsaker ne- is to consider: stating: “When truth is order brief required.” trial is Howev- glected, new parties, respective ages their er, facts that parties stipulated ability, mar- earning the duration new trial presented have been at a parties during and conduct of the riage pre- that the informing the court evidence marriage, their station in incorrect. original trial was sented each, necessities of circumstances and parties, stipulation Based on condition, physical their health and removing previous court amended its order financial circumstances as shown from the value of the stock transfer time, value at property owned at its cash thus payment, amending cash time, income-producing capacity, its $250,000 $150,000. payment from any, if whether accumulated before or marriage, and such other mat- after The final distribution of [If may be material. The ters as trial court that Ulsaker will receive appears *5 specific required findings, is not to make five dollars the estate. four to million of specify it must a rationale for its mil- approximately will receive one White determination. pay- lion dollars from the a cash $150,000, support ¶ ment of of Horner, at 9.
month for
or until she remarried.
case,
court,
In
this
arguing the dis-
appealed
9] White
[¶
to the
without
reference
Ruff-Fischer
grant
to
trict
decision
each
gave
guidelines,
property
is
be-
separate property
inequitable
their
in his
own
that was
or her
name.
more as-
substantially
cause Ulsaker has
concluded:
Fur-
in his name than does
sets
White.
(and order):
Here’s what
think
thermore,
of
argues the award
this marriage
of them came into
Both
compen-
inadequate
is
separate
their
estates which neither
of
sate
And
co-mingle.
them intended to
of
believes the division
property. Ulsaker
they didn’t.
sepa-
is
equitable because
leave the mar-
Both of them should
throughout
marriage.
ration of
they brought along and
riage with what
they got
from their fami-
anything
II
per-
along
way.
And
own
lies
§ 14-
Under N.D.C.C.
property.
sonal
05-24(1),
make an
the district court must
conclusion on the
court based this
equitable distribution
lack
a marital estate.
perceived
Horner,
divorcing parties.
Horner
it doubted “if there is
stated that
¶9,
All
165,
ND
686
131.
2004
in this
thing”
as a marital estate
such
assets,
or in
separately obtained
whether
due in
apparently
part
This was
case.
part
to be
property,
herited
considered
lived and
lives
Bladow,
Bladow v.
marital estate.
virtually
“parties accumulated
fact that the
¶ 6,
123,
When
2003 ND
riage can
in making
equi
be considered
an
ing point in a long-term marriage. Linrud
Bladow,
Linrud,
table division of property.
55, ¶7,
2003 v.
1998
574 N.W.2d
¶
123, 8,
However,
Thus,
Heley Heley, case, In it appears the *6 1993). district court misunderstood the law of this Thus, a trial court must state and thus misapplied by the law con start a presumption that all property cluding that not all property by held by held either whether jointly held was marital property. The or individually is to be considered marital apparently court believed that property property. The trial court must then deter by held the parties could be considered mine the total value of the marital estate non-marital property because majority order to make an division of property was listed under individual property Marital ordinarily will names, jointly rather than held. This is an be valued as of the date of trial. Grinaker interpretation erroneous of our caselaw. Grinaker, (N.D. v. 208-09 final [¶ 16] The property of 1996). After a fair prop evaluation of the appears to be that Ulsaker was to receive made, erty is the entire marital estate four to five million dollars of the estate. must equitably then be divided between White was to receive much less: approxi- under the guide Ruff-Fischer mately estate, one million dollars from the Neidviecky lines. Neidviecky, 2003 ND $150,000, a payment cash of monthly and a ¶29, 10, 657 255. N.W.2d disbursement of a month for or
[¶ 14] There is no set formula until court, she remarried. The district for dividing a marital but trial awarding property “brought to who [it] court must equitably divide property along,” created a disparity substantial of upon particular based circumstances of approximately four million dollars that was Horner, each case. Horner v. 2004 ND not adequately explained. large This fi- ¶ 165, 12, 686 An equal N.W.2d 131. disparity divi nancial aggravated by is the dis- sion property of marital a logical is start- trict court’s failure to make a finding as to
573 ¶¶ 11-12, 157. have We It is N.W.2d the marital estate. of the total value in earning a recognized had a clear difference if court the district unclear of value be when deter- power of the total should considered understanding approxi- mining support. was an Sommers v. spousal case. There this estate ¶ Sommers, 77, 17, in the gap par- dollar mately million one the entire spousal sup- of the value of division and Property ties’ estimation must ordinarily marital estate. be examined port together. at 15. dealt with Id. a have stated that [¶ We a equal, be substan division need findings, The district explained. must be Ams disparity tial issued before this Court’s deci- were ¶11, 23, Amsbaugh, baugh Sack, stated: “Neither for- sion findings fol adequate With N.W.2d 601. otherwise, career or opportunities, feited guidelines, lowing the Ruff-Fischer marriage.” consequence award this disparity in permanent court awarded But to the may appropriate. ex case month per appar- in the amount any findings court made tent district agreed pay ently Ulsaker had because case, insufficient consider they reversing Because we that amount. val variation of the substantial of property, court’s division district ues, explain the court’s ra insufficient may different division disparity in the tionale for the award and structure of influence the division, on the erroneous con and based re- spousal support, marital estate. of what constitutes the cept spousal support consider the award of misap- an equitable 18] Because when it reconsiders sufficiently remand, ex- and did not the court is to plied law On distribution. in the distri- disparity in de- plain guidelines substantial consider the Ruff-Fischer we and remand property, reverse spousal support bution termining what amount to the district court. appropriate. *7 Ill IV argues the award of $1000 [¶ 19] judgment of the district The [¶ 22] spousal support inadequate month in is
per
court is
and remanded.
reversed
for the
distribu-
compensate
tion of property.
WALLE,
W. VANDE
[¶ 23] GERALD
14-05-24.1, C.J.,
Section
MARY
MARING and
MUEHLEN
N.D.C.C.,
into
“[t]aking
CROTHERS, JJ.,
consider
provides,
concur.
DANIEL J.
parties, the
the circumstances of the
ation
SANDSTROM, Justice, dissenting.
pay spousal
one
require
court
record reflects
period
I dissent. The
any
support to the other
included all the
that
district court
is
time.” An award
dis-
in the marital estate. The
on consideration
to be based
Ruff-
Sack,
rationale
the division of
trict court’s
v.
guidelines.
Fischer
Sack
¶
57,
157;
consistent with
11,
Staley
v.
ND
711 N.W.2d
Ruff-Fischer
¶
view
trial
195, 8,
apparent.
‘We
guidelines is
Staley,
with one accumulated Further, included the marital estate. other, icantly than the more assets re- majority tells never us what marital quired equitable that division be property was not included in the marital fairly equal wealthy less spouse lest the estate. marital property What did the presents This case disadvantaged. two district court fail to distribute? mature, successful, wealthy adults who cases, In previous has Court
married later
each having been
specifically
known what
or debt
They
married before.
chose to keep their
the district
did not
include. See
separate,
wanting
neither
to seek
Brandner,
111, 10,
Brandner v.
other,
until they
assets of the
divorced.
(“The
[¶ has erroneously 26] (N.D.1994) (“the 620, 622 court’s decision concluded that the district court misap- gifts reveals that it treated the received plied the and did not sufficiently law ex- the Gaulrapps what plain majority perceives to be a excluded their from value the marital es disparity substantial the distribution of tate”); Heley Heley, (N.D.1993) (“we agree Vikki the trial court erred in excluding from the majority argues distribution, marital prior Lar *8 by ry’s $7,000 court law misapplied ‘pre-marital the not of including worth proper property by ”); Anderson, all the parties ty’ held the in v. the Anderson (N.D.1985) (the 566, marital It at 15: says estate. 569 district court “ found ‘that farm land case, In the and mineral appears this it the district interests which the defendant in [Charles] court the misunderstood law of this state herited from his father is misapplied by and thus the law not a marital conclud- ”); Hoge, asset’ ing property Hoge that not all 281 by the held the N.W.2d (N.D.1979) 561 parties property. (“Although was marital The court there was suffi that cient apparently property believed evidence before the court from held by parties the could be determine value of personal considered non- the the marital property the farm majority property, findings because of the reveal that the the property listed under court property individual based the on solely division
575 determination.” by reaching owned its State property real the value ¶45, 15, Bergstrom, 2006 N.W.2d parties.”). the case, however, the In dis- this 29] [If excluding said it was The facts of this case are unusu- [¶ court never
trict life, The in marital estate. later both parties from the al. married property this must having They assumes before. majority illogically been married all of it. prior court excluded and successful highly the district both educated mean findings pre- fact are as- marrying. Each owned substantial A district court’s correct, complaining and prior marriage. party the to the Each sumptively sets on that the appeal they must that had decided presented demonstrate evidence Linrud, clearly erroneous. and that findings keep their ¶ 7, 875. Under the other. N.W.2d neither wanted the presume we should at end of presumption, true Each had substantial assets parties’ dispar- included all the This a case of marriage. district court not older, If the in marital estate. dis- ity inequality. and Each secure, proper- all the financially relatively good had not included and in trict court health, it could dis- they in the marital how had themselves ty conducted district court property? during owners independent tribute property. recog- marriage. it had to consider all The district court knew said, “But our that specifically In its order it nized facts found the most be an law that there should in this unusual case says equitable case division ‘equitable’ away And of- to walk parties distribution. for both equitable be equal, not it equal. property. means Where it is ten with their own individual Rogue Judge.” clearly explained findings must be state district Therefore, logical more conclusion is for its decision: conduct rationale all included keeping the district their substantial marital and found separate contemplates in the estate that both be for the mar- most result would after keep should own own be riage. equal, each to take their not This decision light it
one cannot claim is Hoge, the known facts. See II (“There prop- requirement is no that a majority argues 30] The equi- erty equal in order be division sufficiently explain the sub did not table.”). Therefore, district court’s the distribution disparity stantial clearly erroneous. findings are findings, the making its property. When court must consider Ruff- Ill the dura guidelines, which include Fischer age, party’s tion of the district court. I would affirm conduct, ability, station ne earning Dale V. Sandstrom cessities, health, and circumstances. financial *9 Horner, 2004 ND Hor ner 131. The district findings. its provide a rationale for
must if they fact “Findings adequate Id. understanding with an provide this Court court’s factual basis used of the district