Amsbaugh v. Amsbaugh

• Decision Date: 14 January 2004
• Docket Number: No. 20030059.,20030059.
• Citation: 2004 ND 11,673 N.W.2d 601
• Parties: Suzanne M. AMSBAUGH, Plaintiff and Appellant v. Terry A. AMSBAUGH, Defendant and Appellee.
• Court: North Dakota Supreme Court

673 N.W.2d 601

2004 ND 11

Suzanne M. AMSBAUGH, Plaintiff and Appellant v. Terry A. AMSBAUGH, Defendant and Appellee.

No. 20030059.

Supreme Court of North Dakota.

January 14, 2004.

Rehearing Denied February 25, 2004.

Robert S. Rau of Bosard, McCutcheon & Rau, Ltd., Minot, ND, for plaintiff and appellant.

Paul M. Probst, Probst Law Firm, Minot, ND, for defendant and appellee; submitted on brief.

SANDSTROM, Justice.

[¶ 1] Suzanne Amsbaugh appeals a Northwest Judicial District Court divorce judgment awarding her less than one-half of the marital estate and denying her spousal support and attorney fees. Suzanne Amsbaugh argues that the district court erred in improperly valuing the marital property; in awarding her less than one-half of the marital estate; in reducing the amount of property she was to receive by deducting guardian fees, child support payments made by Terry Amsbaugh, and credit card debt; and in failing to award her spousal support or attorney fees. We affirm with adjustment, concluding the district court's decision was not clearly erroneous and the court did not abuse its discretion.

I

[¶ 2] Suzanne and Terry Amsbaugh were married in May 1975. Suzanne Amsbaugh sued for divorce in February 2001, and the couple separated on July 1, 2001. At the time of the hearing, the parties had been married for 27 years, and both were 46 years old. Suzanne Amsbaugh currently resides in an apartment in Minot, while Terry Amsbaugh resides in the marital home with the parties' minor son. In 1999, Suzanne Amsbaugh began working at Trinity Hospital in Minot as the coordinator of the sewing and crafts department. At the time of the hearing, she was working 40 hours a week and earning $10.00 per hour. In 1999, Terry Amsbaugh and two partners started a marketing firm, Results Unlimited, in Minot. At the time of trial, Terry Amsbaugh was earning $25,000-$26,000 per year.

[¶ 3] On September 24, 2001, an interim order granted the parties divided and split custody. Suzanne Amsbaugh was granted the care, custody, and control of the parties' son from the first day of each month through 6:00 p.m. on the fifteenth day. Terry Amsbaugh was granted the care, custody, and control from 6:00 p.m. on the fifteenth day through the last day of the month at 6:00 p.m. Reasonable visitation was granted to both parties. The district court also ordered Terry Amsbaugh to pay interim child support and spousal support for a combined total of $300 per month.

[¶ 4] In May of 2002, Terry Amsbaugh moved to amend the interim order. He sought to terminate his child support obligation, claiming the parties' son was residing exclusively with him. Because of disputed facts, the district court denied the order; however, it reserved the right to offset the property settlement if it became apparent at the hearing that the motion should have been granted.

[¶ 5] A hearing was held on November 1 and continued on December 16, 2002. The district court granted the parties a divorce on the grounds of irreconcilable differences. The district court granted the parties joint custody but granted Terry Amsbaugh primary physical care and control. The district court initially had a property split of roughly 50 percent in mind, but the court modified this amount to reflect child support overpaid by Terry Amsbaugh, debts incurred solely by Suzanne Amsbaugh after the parties had separated and while Terry Amsbaugh was continuing to pay the marital debts, and half of the $944 in guardian ad litem fees Terry Amsbaugh was ordered to pay. The district court explained that these items, combined with Suzanne Amsbaugh's drinking and lack of attempts to address her alcohol problem, justified the offset.

[¶ 6] The district court found Suzanne Amsbaugh has had a number of jobs over the years and had left some under less than favorable conditions. The district court found she was an honorably discharged veteran and she had worked as a waitress, as a secretary, and as a salesperson. The district court also found she had advanced schooling in horticulture. The district court found Suzanne Amsbaugh, although capable of more, would probably remain at her current status in her career.

[¶ 7] The district court found that Terry Amsbaugh was also a veteran. The district court found he was a one-third partner in an advertising and marketing firm, Results Unlimited. The district court also found his business, CTI, was basically finished. The district court found that Results Unlimited was just getting going but should continue to grow and recognized that its potential will be achieved only with a great deal of hard work. The district court also found there was no guarantee the business would be successful.

[¶ 8] The district court explained that both parties testified about the conduct of the other that they felt contributed to the divorce. Suzanne Amsbaugh testified that her husband sat around and played on the computer while she did the housework. Terry Amsbaugh testified that his wife had a drinking problem and that this problem was the primary reason for the divorce. He also accused her of having numerous affairs. The district court found that the affairs were not proven and that Suzanne Amsbaugh's accusations were exaggerated. The district court did find, however, that the concerns about Suzanne Amsbaugh's drinking were warranted. The district court found that her drinking and her combative nature when drunk did more than anything else to cause the dissolution of the marriage. The district court also found that it appears Suzanne Amsbaugh minimizes her drinking and is unwilling to take the necessary steps to change. The district court was also concerned about her use of Prozac for depression while she continued to drink.

[¶ 9] The district court found that Suzanne Amsbaugh was not a disadvantaged spouse entitled to spousal support. The district court explained that Terry Amsbaugh had supported her in continuing her education throughout the marriage. The district court also explained that if Suzanne Amsbaugh is not working to her full potential, it is because of her drinking and her work attitude. The district court further found each party will be responsible for his or her own attorney fees. Judgment was entered on January 24, 2003.

[¶ 10] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 11] Suzanne Amsbaugh argues the district court improperly valued the marital home and the business, Results Unlimited.

[¶ 12] "A trial court's valuation of property is a finding of fact that is presumptively correct and subject to the clearly erroneous standard of review." Hoverson v. Hoverson, 2001 ND 124, ¶ 13, 629 N.W.2d 573. The value given to marital property by the courts depends on the evidence presented by the parties. Fox v. Fox, 2001 ND 88, ¶ 22, 626 N.W.2d 660. "`Marital property valuations within the range of the evidence are not clearly erroneous.'" Id. at ¶ 19 (quoting Wald v. Wald, 556 N.W.2d 291, 295 (N.D.1996)). The owner of real property may testify as to the value of his land without any further qualification or special knowledge. Anderson v. Anderson, 368 N.W.2d 566, 569 (N.D.1985). The district court is in a better position to judge credibility and observe demeanor and to determine the true facts regarding property value. Hoverson, at ¶ 13.

A

[¶ 13] Suzanne Amsbaugh argues the district court improperly used Terry Amsbaugh's valuation of the marital home, because there was no basis for the court's decision. She claims her valuation, on the other hand, was based on the latest tax valuation statement of Ward County and on an insurance policy.

[¶ 14] Terry Amsbaugh testified at trial that he valued the house at $90,000 because of "its location and the close proximity to the trailer houses that are across the street, and the surroundings." He explained that the house was built for $63,000 and that there is nothing special in the home or outside the home. He also testified that his home had never been appraised and that no one from the county had been inside the home.

[¶ 15] The property valuation of the marital home was within the range of evidence presented; therefore, we conclude the valuation was not clearly erroneous.

B

[¶ 16] Suzanne Amsbaugh also argues the district court improperly valued the business, Results Unlimited.

[¶ 17] Suzanne Amsbaugh valued the business at $100,000. When asked how she came up with this figure, she explained:

What I came up with was I came up with a hundred thousand dollars because it shows on my husband's tax ret ... my husband's tax return that there was a profit that he made of $13,000, and I thought as far as a passbook savings account goes, you make three to five percent. This is a much riskier business, so I figured a ten percent rate of return on ten thousand dollars. That's where I came up with a hundred thousand.

[¶ 18] The district court valued the business interest in Results Unlimited at $1.00. Terry Amsbaugh claims that the court's valuation was "presumably" derived from financial statements of Results Unlimited that were put into evidence. The district court did not explain how it evaluated the business. In Anderson v. Anderson, this Court concluded the district court's valuation of property did not constitute reversible error despite the fact it did not approve of or condone the district court's method of evaluation. 504 N.W.2d 569, 571 (N.D.1993). In Anderson the district court was faced with choosing between incredible testimony and a questionable method of valuation. Id. In this case, the district court had to choose between Suzanne Amsbaugh's valuation, which appeared to be mere speculation on her part, and financial records indicating that the business operates at a loss and has negative worth. Under the...