Allmon v. Allmon, 20160324

CourtUnited States State Supreme Court of North Dakota
Citation894 N.W.2d 869
Docket NumberNo. 20160324,20160324
Parties Angela R. ALLMON, Plaintiff and Appellant v. Aaron D. ALLMON, Defendant and Appellee
Decision Date16 May 2017

Robert S. Rau, Minot, ND, for plaintiff and appellant.

Aaron D. Allmon, self-represented, Canyon Lake, TX, defendant and appellee.

Kapsner, Justice.

[¶ 1] Angela Allmon appeals from a judgment granting her a divorce from Aaron Allmon, granting her primary residential responsibility for their child, ordering him to pay child support, and distributing their marital property. We affirm in part, but reverse the child support award and remand for the district court to correctly apply the Child Support Guidelines.


[¶ 2] In May 2013, the parties were married in Arizona and a child was born to the couple later that year. Both parties were employed by the military, but Angela Allmon left military service after a 16–year career to accompany Aaron Allmon when he was relocated to Minot. The parties' relationship soon soured. Aaron Allmon committed domestic violence during the marriage, and he was convicted of sexual misconduct and served 30 days in a military jail. Despite the conviction, Aaron Allmon would be allowed to retire and retain his pension and other military benefits.

[¶ 3] Angela Allmon commenced this divorce action in November 2014. In February 2015, the parties and their attorneys appeared at an interim hearing where agreements were reached on several issues including Angela Allmon's request to relocate with the child outside of North Dakota. After the interim hearing, Aaron Allmon did not cooperate or take part in any of the proceedings, his attorneys were allowed to withdraw from representing him, and in March 2016, he was ordered to pay $1,500 in attorney fees for failing to comply with discovery requests.

[¶ 4] The divorce trial was held in July 2016. Failing to keep the district court apprised of his current residential or mailing address, Aaron Allmon did not receive notice or appear at the trial. Angela Allmon appeared through the Interactive Video Network system from her residence in Germany. Following the trial, the court awarded Angela Allmon primary residential responsibility for the parties' child and ordered Aaron Allmon to pay child support in the same amount specified in the February 2015 interim order. The court awarded each party the property in their possession along with any associated debts and ordered Aaron Allmon to pay Angela Allmon $25,000 as part of the property distribution. The court refused to grant Angela Allmon's requests for spousal support and attorney fees.


[¶ 5] Angela Allmon challenges the district court's decisions on property distribution, spousal support, child support, and attorney fees.


[¶ 6] Angela Allmon argues the property distribution is inequitable because the district court failed to divide Aaron Allmon's military pension between the parties.

[¶ 7] Under N.D.C.C. § 14–05–24(1), the district court is required to make an equitable distribution of the marital estate, including all of the parties' assets and debts, whether held jointly or individually, and the court must determine the value of the entire marital estate before making an equitable distribution. See Gabaldon–Cochran v. Cochran , 2015 ND 214, ¶ 6, 868 N.W.2d 501 ; Lorenz v. Lorenz , 2007 ND 49, ¶ 6, 729 N.W.2d 692. Equitable division of the marital estate is governed by the Ruff Fischer guidelines, which requires consideration of the following factors:

[T]he respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material. The trial court is not required to make specific findings, but it must specify a rationale for its determination.

Rebel v. Rebel , 2013 ND 116, ¶ 7, 833 N.W.2d 442 (quoting Kosobud v. Kosobud , 2012 ND 122, ¶ 6, 817 N.W.2d 384 ); 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).

[¶ 8] In Gabaldon–Cochran , 2015 ND 214, ¶ 7, 868 N.W.2d 501, we explained:

A property division does not need to be equal to be equitable, but a substantial disparity must be explained. Feist [v. Feist ], 2015 ND 98, ¶ 6, 862 N.W.2d 817. "We have often said that while a long-term marriage generally supports an equal division of property, a court may unequally divide property in a short-term marriage and award the parties what each brought into the marriage." Fugere [v. Fugere ], 2015 ND 174, ¶ 8, 865 N.W.2d 407 (quoting Dieterle v. Dieterle , 2013 ND 71, ¶ 25, 830 N.W.2d 571 ). Economic fault and a party's dissipation of assets also may be relevant factors for the court to consider and are grounds for an unequal distribution. Lorenz , at ¶ 6 ; see also Crandall v. Crandall , 2011 ND 136, ¶ 18, 799 N.W.2d 388.

[¶ 9] Our standard for reviewing a district court's property distribution is well established:

A district court's distribution of marital property is treated as a finding of fact, which we review under the clearly erroneous standard of review. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. This Court views the evidence in the light most favorable to the findings, and the district court's findings of fact are presumptively correct.

Feist , 2015 ND 98, ¶ 4, 862 N.W.2d 817 (quoting McCarthy v. McCarthy , 2014 ND 234, ¶ 8, 856 N.W.2d 762 ).

[¶ 10] Here, the marital estate had a negative net worth. The district court made detailed findings about each Ruff Fischer factor. The court noted both parties were born in 1976, and the age of the parties did not warrant a disparate distribution. Regarding the parties' earning ability, the court noted Angela Allmon was employed by the United States Veteran's Administration at the time of trial, and it was unclear from the evidence whether Aaron Allmon was still employed as a military photographer with the United States Air Force or had retired. Concerning Angela Allmon's argument that she should receive part of Aaron Allmon's military retirement, the court explained:

Although Angela provided information ... concerning Aaron's anticipated monthly disability pay and basic pay ..., the Court was not provided with verification as to the disposition of Aaron's criminal proceeding other than what Angela believed transpired. Absent independent, substantiated records or testimony from an individual with first hand knowledge of Aaron's military criminal proceedings, the Court cannot merely rely on Angela's belief as to [what] may have happened and what she believes Aaron may receive for retirement and disability pay. Accordingly, the Court cannot conclude that this factor ... warrants either party to receive more or less than he or she brought into the marriage.

[¶ 11] The district court found the marriage duration was "very short," and Aaron Allmon's conduct during the marriage entitled Angela Allmon to be reimbursed for medical services she paid on his behalf. The court found the parties' station in life did not warrant an increased allocation of the marital estate, nor did their health and physical conditions. The court found Angela Allmon separated from the military to accompany Aaron Allmon to North Dakota, and her present employment would not provide her with the benefits she would have received from the military. The court accordingly found the circumstances and necessities of each favored awarding Angela Allmon a portion of the marital estate larger than she had brought into the marriage. Regarding the financial circumstances of the parties at the time of the divorce, the court noted the "negative value for the marital estate" and found "if Angela were to receive one-third of Aaron's retirement and disability pay on a permanent basis, she would like[ly] receive funds well above and beyond any funds she may have expended during the parties' marriage."

[¶ 12] Weighing the Ruff Fischer factors, the district court awarded each party the property in their respective possession along with any debt associated with the property in an attempt to return the parties to their premarital state. The court further determined:

In addition and as a further division of property, Aaron shall pay to Angela the sum of $25,000.00, which sum is representative of $7,201.61 for medical expenses previously reimbursed by the United States Air Force and $2,884.24 for Aaron's share of medical expenses incurred on behalf of [the child] in Germany. The balance of $14,914.15 constitutes an additional allocation to Angela to account for and to balance the Ruff Fischer factors of: marriage duration and conduct during the marriage, the circumstances and necessities of each and other matters which may be material.

[¶ 13] Upon our review of the record, we conclude the district court's distribution of marital property and debt is not clearly erroneous.


[¶ 14] Angela Allmon argues the district court erred in failing to award her spousal support.

[¶ 15] Under N.D.C.C. § 14–05–24.1(1), the district court "may require one party to pay spousal support to the other party for a limited period of time" considering "the circumstances of the parties." In deciding whether to award spousal support, the court must consider the Ruff Fischer guidelines and the needs of the spouse seeking support and the ability of the other spouse to pay. See Kosobud , 2012 ND 122, ¶ 16, 817 N.W.2d 384 ; Becker v. Becker , 2011 ND 107, ¶ 28, 799 N.W.2d 53. " ‘Property division and spousal support are interrelated and...

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