Braun v. Braun, 940271

• Decision Date: 31 May 1995
• Docket Number: No. 940271,940271
• Citation: 532 N.W.2d 367
• Parties: Patrick C. BRAUN, Plaintiff and Appellant, v. Beverly J. BRAUN, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 367

532 N.W.2d 367

Patrick C. BRAUN, Plaintiff and Appellant, v. Beverly J. BRAUN, Defendant and Appellee.

Civ. No. 940271.

Supreme Court of North Dakota.

May 31, 1995.

Rauleigh D. Robinson (argued), Mandan, for plaintiff and appellant.

Zuger, Kirmis & Smith, Bismarck, for defendant and appellee; argued by Patricia E. Garrity.

MESCHKE, Justice.

Patrick C. Braun appealed from that part of a divorce decree allocating marital debts and property. We affirm.

Patrick and Beverly J. Braun began living together in 1986, married in February 1988, and had two children. Michael was born on November 2, 1986, and Nicholas on August 8, 1988. In 1988, Patrick was 36 years old for his first marriage. Beverly was then age 34, had been married once before, and had two children from her prior marriage. To begin with, Patrick purchased a mobile home where they lived. In 1989, they sold it and moved into a Bismarck home.

Patrick has a high school education and has worked for the City Street Department since 1986. Beverly attended Bismarck State College into 1987 for a commercial art degree, and worked part-time while in college. She stayed home to care for Michael and Nicholas until 1990, when she began working part-time again. Since 1992, Beverly has worked full-time for St. Alexius Medical Center.

Patrick sued Beverly for divorce on October 26, 1993, but did not file the case. Because, when Patrick left, he removed property and changed some joint accounts to his name alone, Beverly filed the case two days later to get an interim order freezing assets.

Beverly soon requested amendment of the interim order for temporary custody of the boys and "family support" from Patrick. On December 16, 1993, the trial court ordered that, "[s]ince [Beverly] has custody of the children, is capable of supporting herself, and is willing to assume the basic expenses associated with the family home, I find this is an appropriate case for determining the obligation of the father for child support rather than 'family support.' " The court ordered Patrick to pay child support of $525 per month, allowed Patrick to use frozen funds for insurance payments, and scheduled Patrick's visits with the boys. The court vacated part of the interim order that "requires [Patrick] to return or not remove money from accounts," but ordered Patrick and Beverly "to make all future expenditures from their respective current incomes" and to "be prepared to account for any expenditures not made from current assets."

Beverly attempted again to amend the interim order, requesting that Patrick use family funds to make the home mortgage payment. On February 18, 1994, the trial court ruled Beverly's motion "deals with essentially the same problems that existed and were addressed in my decision," and "decline[d] to address this matter any further."

After a trial in June 1994 and two amendments of findings on the children's investments and visitation, the trial court entered a divorce decree in August that placed primary custody of the boys with Beverly, ordered Patrick to pay her $525 monthly for child support, and divided the marital debt and property. Patrick appeals.

Patrick does not contest custody or support, but challenges the division of marital debt and property. He claims that the trial court erroneously valued and unfairly divided certain property, including not putting him in charge of the children's investments, forced him to provide for Beverly's two children from her prior marriage, and did not fairly consider the amount of property he brought to the marriage. We are unconvinced.

Patrick argues that the trial court failed to properly adjust for Beverly not making the home mortgage payments expected in the interim order. He claims, while "he was contributing his appropriate share for the support of the children," "Beverly was simply disregarding the Court's order to make the house payments," and the net marital estate was thereby reduced. Beverly claims she "did not have the financial ability to make the house payments" and "tried to get help from the trial court on that very issue" by her attempts to amend the interim order.

The trial court found that neither Patrick's or Beverly's conduct "was ... so grievous or harmful that it must significantly affect the division of the marital estate, except that the Court does find that [Patrick] dominated [Beverly] relative to the financial affairs of the parties and showed a considerable lack of consideration and personal support relative to [Beverly]'s lack of business acumen." This finding answers Patrick's complaint about Beverly's interim conduct, too.

We will not reverse a trial court's marital property distribution, a finding of fact, unless it is clearly erroneous. van Oosting v. van Oosting, 521 N.W.2d 93, 96 (N.D.1994). Such a finding "is clearly erroneous if, although there is some evidence to support it, a reviewing court, on the entire record, is left with a definite and firm conviction a mistake has been made." Id. We do not believe a mistake was made here.

When Beverly and Patrick married, he had many investment accounts: an EF Hutton balance of $11,299 on December 31, 1986; an HIS Government Securities balance of $4,954 on December 31, 1986; 200 ounces of silver purchased in April 1987; an HIS Basic Value Series of $3,679 on December 31, 1987; an HIS Growth Series of $7,799 on December 31, 1987; and a Mass Financial International Trust-Bond Portfolio of $17,258 on May 30, 1986, partly redeemed to buy the mobile home. Patrick also owned a van, a Corvette, and two motorcycles. At the divorce, Patrick also still had a prior IRA then worth $5,089, a prior pension worth $17,058, and a current pension begun on May 7, 1986, worth $14,668. Besides these savings, their marital property included the personal property Patrick and Beverly each had in their possession, several vehicles, investment accounts for Nicholas and Michael, a $6,355 bank account, $20,263 net proceeds from sale of the marital home, and debts of $8,500, for a total marital estate of $72,687.

The trial court distributed the proceeds from the sale of the home and two-thirds of Patrick's City pension to Beverly. The court divided the vehicles, left each with the personal property in their possession, equally divided the bank accounts, and ordered the children's investments transferred to a trustee agreed upon by both parents. The court distributed all remaining investments, the IRA and prior pension, and one-third of the City pension to Patrick. The court ordered Patrick to pay family medical bills, Beverly to pay her student loan and credit card bill, and each to pay their own attorney fees. Beverly received net assets of $37,831, and Patrick received net assets of $43,355.

"[T]he court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper." NDCC 14-05-24. In distributing property,

the trial court must consider all relevant factors and should follow the Ruff- Fischer guidelines. The objective is to equitably divide property based on the circumstances of the case. In the total marital estate to be divided, the trial court must include all of the real and personal property owned by the parties, regardless of the source. Separate property, whether inherited or otherwise, must initially be included in the marital estate. The origin of the property can, however, be considered in making an equitable property division. A property division need not be equal to [be] equitable, but a substantial disparity must be explained.

van Oosting, 521 N.W.2d at 95-96 (citations omitted). See Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). Although Patrick received a larger share of the assets, he is dissatisfied.

Patrick argues that the trial court valued his pickup and the bank accounts closer to the amount Beverly listed than his listing. Beverly responds that the court valued Patrick's motorcycles below what Patrick himself had listed. A trial court's valuation of property is a finding of fact, "presumptively correct," and subject to the clearly erroneous standard. Heggen v. Heggen, 488 N.W.2d 627, 629 (N.D.1992). "The trial court, which had the opportunity to observe the demeanor and credibility of the parties, is in a far better position than an appellate court in ascertaining the true facts regarding the property's value." Freed v. Freed, 454 N.W.2d 516, 521 (N.D.1990). It is not usually wrong for a trial court to accept the valuations submitted by one spouse over the other's, or to weigh one spouse's value testimony more heavily. Id. This record supports the valuations by the court, and those valuations are not clearly erroneous.

Patrick urges that the trial court forced him to support Beverly's two children from her prior marriage. In its findings, the court said:

The two minor children of the parties and [Beverly] are part of a family of five, including the two minor children of [Beverly's] from a previous marriage. [Beverly] will be faced with...