582 N.W.2d 6 (N.D. 1998), 970376, Wilhelm v. Wilhelm

Docket Nº:Civil No. 970376.
Citation:582 N.W.2d 6, 1998 ND 140
Opinion Judge:[6] The opinion of the court was delivered by: Opinion of the Court by Sandstrom, Justice.
Party Name:Judy Ann WILHELM, Plaintiff and Appellant, v. Jeffrey Dean WILHELM, Defendant and Appellee.
Attorney:Carol S. Nelson and Bradley A. Cruff, Valley City, for plaintiff and appellant; argued by Bradley A. Cruff., Irvin B. Nodland, Irvin B. Nodland, P.C., Bismarck, for defendant and appellee.
Case Date:July 16, 1998
Court:Supreme Court of North Dakota
 
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Page 6

582 N.W.2d 6 (N.D. 1998)

1998 ND 140

Judy Ann WILHELM, Plaintiff and Appellant,

v.

Jeffrey Dean WILHELM, Defendant and Appellee.

Civil No. 970376.

Supreme Court of North Dakota.

July 16, 1998

Page 7

Carol S. Nelson and Bradley A. Cruff, Valley City, for plaintiff and appellant; argued by Bradley A. Cruff.

Irvin B. Nodland, Irvin B. Nodland, P.C., Bismarck, for defendant and appellee.

SANDSTROM, Justice.

¶1 Judy Wilhelm appeals from a judgment setting child support, ordering spousal support, dividing property, and ordering the parties to pay their own attorney fees. We affirm the trial court's child support determination, valuation of in-kind income, and denial of attorney fees. Because the trial court incorrectly calculated the marital estate before dividing the property, we reverse and remand the trial court's division of property and order for spousal support.

I

¶2 Judy and Jeffrey Wilhelm were married on February 12, 1988. Judy Wilhelm was 21 years old, and Jeff Wilhelm was 30; both had previous marriages. They have two children: a daughter born February 23, 1988; and a son, born March 11, 1989. The parties separated permanently in 1995. The trial court granted a divorce based on irreconcilable differences.

¶3 The parties agreed Judy Wilhelm should have custody, and the trial court set a visitation schedule. The trial court calculated $1,400 per month in child support and required Jeff Wilhelm to provide medical insurance and to pay all of his children's uncovered medical expenses. The trial court ordered Jeff Wilhelm to pay Judy Wilhelm spousal support of $250 per month for 48 months. The trial court awarded Jeff Wilhelm his minority interests in three family-owned corporations and the undistributed income of the corporations, ordered the marital home sold and the proceeds evenly divided, awarded Jeff Wilhelm the contract for deed on the "Taylor property" valued at $100,000, awarded Judy the Susag contract-for-deed payment and the tax refunds, awarded the parties their respective 401(k) plans, awarded each party numerous items of personal property, required each to pay certain debts, and ordered the parties to pay their own attorney fees.

¶4 Judy Wilhelm appeals from the October 27, 1997, notice of entry of judgment, which references the October 24, 1997, judgment of the Stutsman County District Court. The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 28-27-02. The appeal is timely under N.D.R.App.P. 4(a).

II

¶5 Judy Wilhelm argues the trial court erroneously valued Jeff Wilhelm's in-kind income, in the form of items owned by the corporations and used by Jeff Wilhelm, for the purpose of calculating his child support obligation.

Page 8

A

¶6 "Child support determinations are findings of fact, governed under the 'clearly erroneous' standard of review." Hogue v. Hogue, 1998 ND 26, p 22, 574 N.W.2d 579. "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on the entire record, we are left with a definite and firm conviction that a mistake has been made." Edwards v. Edwards, 1997 ND 94, p 4, 563 N.W.2d 394.

B

¶7 The trial court used a five-year average of Jeff Wilhelm's income to decide his child support obligation because it concluded his position as a minority shareholder made him more like a self-employed person than an employee. Using the five-year average, it found a child support obligation of $1,315. See N.D. Admin. Code § 75-02-04.1-10 (showing $4,600 in net income equals $1,315 in child support under the guidelines). The trial court recognized Judy Wilhelm's argument Jeff Wilhelm was able to use the corporation's "toys" and increased the child support to $1,400 because of this in-kind income.

¶8 Judy Wilhelm contends this $85 increase in child support means the trial court found the value of Jeff Wilhelm's in-kind income to be $300. See N.D. Admin. Code § 75-02-04.1-10 (showing $4,900 in net income equals $1,400 in child support under the guidelines). Judy Wilhelm argues this increase is insufficient in light of Jeff Wilhelm's use of "a brand new 'demo' vehicle, a 1966 Stingray Corvette, a 1984 Jeep CJ-7, a 1974 Volkswagen bug convertible, a 1989 Bayliner boat, motor and trailer, a jet boat, two Arctic Cat snowmobiles and trailer and a 4 wheel all terrain vehicle. All insured by the corporation and used by Jeff at no cost to him." Judy Wilhelm contends Jeff Wilhelm's "in-kind income should be valued at $2,000 per month" for a total child support obligation of $1,879. See N.D. Admin. Code § 75-02-04.1-10 (showing $6,600 in net income ($4,600 + $2,000) equals $1,879 in child support under the guidelines).

¶9 Judy Wilhelm's appellate brief, however, acknowledges "these items are inventory that is held for sale or investment," "[t]here was no testimony as to the type of 'demo' that Jeff drives," and "[t]here was no testimony regarding the value of the use of this stable of toys." In addition, Judy Wilhelm submitted to the trial court proposed findings of fact in which she proposed child support of only $1,484 per month--well below the $1,879 she seeks on appeal. Because the trial court had no evidence before it of the value of the items Judy Wilhelm seeks to have included as in-kind income, Judy Wilhelm's assertion the trial court's valuation of the in-kind income is clearly erroneous is without merit. 1 We affirm the trial court's child support determination.

III

¶10 Judy Wilhelm contests the level of spousal support ordered to be paid by Jeff Wilhelm and also contests the trial court's division of property.

A

¶11 "[P]roperty division and spousal support are interrelated, and often must be considered together." Lohstreter v. Lohstreter, 1998 ND 7, p 16, 574 N.W.2d 790. In Hogue v. Hogue...

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