563 N.W.2d 804 (N.D. 1997), 960195, Zuger v. Zuger

Docket Nº:Civil No. 960195.
Citation:563 N.W.2d 804, 1997 ND 97
Party Name:Mary H. ZUGER, n/k/a Mary C. Haunson, Plaintiff, Appellee and Cross-Appellant, v. William P. ZUGER, Defendant, Appellant and Cross-Appellee.
Case Date:May 23, 1997
Court:Supreme Court of North Dakota

Page 804

563 N.W.2d 804 (N.D. 1997)

1997 ND 97

Mary H. ZUGER, n/k/a Mary C. Haunson, Plaintiff, Appellee

and Cross-Appellant,


William P. ZUGER, Defendant, Appellant and Cross-Appellee.

Civil No. 960195.

Supreme Court of North Dakota.

May 23, 1997

Page 805

[Copyrighted Material Omitted]

Page 806

¶3 When they were married, Bill practiced in a law firm started by his father, and Mary worked as a secretary for Bill. Bill later opened his own practice. Mary earned degrees in Spanish and secondary education and, at the time of the divorce, was teaching Spanish at Dickinson State University.

¶4 Mary sued Bill for divorce. The trial court divided the marital property and ordered Bill to pay $100 per month in permanent spousal support and $5,000 for Mary's attorney fees. The court ordered joint legal custody of the children, but placed primary physical custody with Mary. Bill was given visitation each Wednesday evening, every weekend except one each month, and nearly seven weeks during the summer. Mary was given ultimate authority to decide educational matters affecting the children, while Bill had ultimate authority to decide non-emergency medical matters.


    ¶5 Bill challenges various financial aspects of the divorce decree, contending the trial court erred (1) by including Bill's fee in one contingent fee case in the marital estate; (2) in valuing Bill's law-office money-market account; (3) by awarding Mary part of Bill's future share in a trust set up by his father;(4) by awarding permanent spousal support; and (5) by awarding attorney fees to Mary.


    ¶6 Bill contends several of the trial court's findings on property division are erroneous. In Grinaker v. Grinaker, 553 N.W.2d 204, 207-208 (N.D.1996), we summarized our standard for reviewing a trial court's valuation and distribution of marital property:

    The trial court must make an equitable distribution of the marital property, based upon the facts and circumstances of each individual case. NDCC 14-05-24; Volson v. Volson, 542 N.W.2d 754, 756 (N.D.1996). The court's determinations on valuation and division of property are findings of fact that will only be reversed on appeal if they are clearly erroneous. Volson, 542 N.W.2d at 756; Braun v. Braun, 532 N.W.2d 367, 370 (N.D.1995). A finding is clearly erroneous only if the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been made. Buzick v. Buzick, 542 N.W.2d 756, 758 (N.D.1996). As Buzick, 542 N.W.2d at 758, and Fenske v. Fenske, 542 N.W.2d 98, 102 (N.D.1996), explain, the trial court's findings of fact are presumptively correct, and the complaining party bears the burden of demonstrating on appeal that a finding of fact is clearly erroneous.


    ¶7 Bill argues that the trial court erred by including in the marital estate a contingent fee he earned in a case acquired and settled while the parties were separated. Bill says Mary made no contribution toward this case and therefore the earned fee should be excluded from the marital estate.

    ¶8 To make an equitable distribution of property under NDCC 14-05-24, the trial court must include in the marital estate all of the parties' assets, regardless of source. Linrud v. Linrud, 552 N.W.2d 342, 344 (N.D.1996); Bell v. Bell, 540 N.W.2d 602, 604 (N.D.1995). A spouse need not make a direct contribution to the acquisition of an asset for it to be included in the marital estate. See, e.g., Berg v. Berg, 490 N.W.2d 487, 492 (N.D.1992); Bullock v. Bullock, 354 N.W.2d 904, 909-910 (N.D.1984). An asset accumulated after the spouses have separated, but while the marriage still exists, is includable in the marital estate. Keig v. Keig, 270 N.W.2d 558, 560 (N.D.1978). As Linrud, 552 N.W.2d at 344, and van Oosting v. van Oosting, 521 N.W.2d 93, 96 (N.D.1994), illustrate, the source of the property is only one factor for the court to consider in making an equitable distribution.

    ¶9 In this case, although Mary did not make a direct contribution to this contingent fee, it was accumulated during the marriage. The trial court therefore properly included the fee in the marital estate.


    ¶10 Bill argues the trial court erred in valuing the money market account for his

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    law office with the value given at trial, rather than at the time of distribution several months later. We recently addressed the timing of valuation of fluctuating assets in Grinaker. In that case, there was a six-month delay between trial and entry of the judgment. The husband sought to introduce evidence that the value of certain mutual funds and annuity accounts had substantially changed since trial. We said:

    Common sense dictates that marital property be valued as of the date of trial, rather than the date of distribution. The trial court hears the evidence on value at trial, and the evidence will ordinarily give a current value for the property. When valuing items like the mutual funds and variable annuities here, any evidence presented at trial on value for some future date would have been purely speculative. The difficulty with the procedure attempted by Gary in this case is evident. Parties would be free to file further "evidence," not subject to cross-examination, whenever they believed a marital asset had changed in value. This procedure would certainly lead to a never-ending trial by affidavit, with parties continually submitting account statements and other materials with each fluctuation of the financial markets.

    Grinaker, 553 N.W.2d at 208-209. We conclude the trial court's finding on the value of this money market account is not clearly erroneous.


    ¶11 Bill argues...

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