698 N.W.2d 259 (N.D. 2005), 20040236, Brandner v. Brandner

Docket Nº:20040236.
Citation:698 N.W.2d 259, 2005 ND 111
Opinion Judge:VandeWalle, Chief Justice.
Party Name:Cheryl Ann BRANDNER, Plaintiff and Appellee v. Allan Michael BRANDNER, Defendant and Appellant.
Attorney:William D. Schmidt, Schmitz & Schmidt, Bismarck, N.D., for plaintiff and appellee., Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, N.D., for defendant and appellant. [7] William D. Schmidt, Schmitz & Schmidt, P.O. Box 2076, Bismarck, N.D. 58502-2076, for plaintiff and appellee. [8] Kent M....
Judge Panel:[
Case Date:June 22, 2005
Court:Supreme Court of North Dakota
 
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Page 259

698 N.W.2d 259 (N.D. 2005)

2005 ND 111

Cheryl Ann BRANDNER, Plaintiff and Appellee

v.

Allan Michael BRANDNER, Defendant and Appellant.

No. 20040236.

Supreme Court of North Dakota

June 22, 2005

Page 260

[Copyrighted Material Omitted]

Page 261

William D. Schmidt, Schmitz & Schmidt, Bismarck, N.D., for plaintiff and appellee.

Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, N.D., for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Allan Michael Brandner appealed from a judgment granting Cheryl Ann Brandner a divorce, dividing their marital property, and setting his child support obligation for their two children. Cheryl cross-appealed from the part of the judgment setting the effective date of Allan's child support obligation. We conclude the trial court did not err in setting the effective date of Allan's child support obligation. We further conclude, however, the trial court erred as a matter of law in treating Allan's business debts as non-marital property and erred as a matter of law in calculating Allan's child support obligation. We affirm in part, reverse in part, and remand for reconsideration of the property distribution and for recalculation of Allan's child support obligation.

I

[¶ 2] Cheryl and Allan, ages 48 and 51 respectively at the time of trial, were married on October 5, 1985, in Herried, South Dakota. During the marriage, the couple had two children who were born in August 1987 and June 1990. When they married, Allan was working for the Soo Line Railroad where he had been employed since 1971. The couple lived in Aberdeen, South Dakota, and Allan commuted to work. In 1991, Allan became employed with DMVW Railroad as manager of right-of-way maintenance and the family moved to Bismarck. In 1995, Allan left his $38,000 per year job with the railroad and became employed with R & R Railroad Construction at an annual salary of $50,000. However, Allan left the railroad construction job after a few months and began working at a Bismarck livestock company. He later entered into a business relationship with and worked at East River Livestock in Linton, a livestock sales barn that eventually failed. At the time of trial, Allan had potential debts from this failed business venture in excess of $600,000. The debts included personal loans, a bond obligation and a small business loan for the sales barn. In the meantime, Cheryl had been working at a medical clinic in Bismarck since 1992 and had been doing part-

Page 262

time transcription work at home since 1996.

[¶ 3] Financial problems became a concern for the couple. Cheryl testified that Allan was primarily responsible for handling the family's financial affairs and Allan would not share any of his business information with her. Allan testified that when he attempted to discuss his business dealings with Cheryl, she refused and avoided the subject. Cheryl commenced this divorce action in April 2003 and learned that Allan had not filed the family's tax returns for the 1995 through 2003 tax years. Allan explained that he failed to file the tax returns because he "couldn't get all the documentation from Cheryl on her checking account" for purposes of claiming tax deductions. Cheryl contacted an accountant and filed tax returns for herself back to 1999, the earliest year allowed. Allan testified he was currently living with his parents on their farm in South Dakota and was receiving about $400 per month in income from them. After Cheryl commenced the divorce action, Allan provided no financial support for Cheryl or the children.

[¶ 4] In June 2004, the trial court granted the divorce. The court awarded Cheryl marital property with a net value of $43,747, and Allan marital property with a net value of $24,325. The court also awarded each party 50 percent of Allan's Tier II railroad retirement benefits of $450 per month when he retires or reaches retirement age. The court further found that "most of Allan's business debts were not related to the marital estate and are his own responsibility," and allocated those potential debts of $659,771 to Allan. The court awarded custody of the children to Cheryl and ordered Allan to pay child support in the amount of $723 per month. In calculating the child support obligation, the court found that Allan "is underemployed and that he is capable of earning $38,000 per year." Although Cheryl requested retroactive child support, the court ordered that, "[g]iven the debts Allan will be paying ... it [is] in the best interests of all concerned that the child support payments will begin with the month of June, 2004."

II

[¶ 5] On appeal, Allan argues the trial court's property and debt distribution...

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