Barth v. Barth

• Citation: 593 N.W.2d 359
• Decision Date: 19 May 1999
• Docket Number: No. 980241,980241
• Parties: Nancy A. BARTH, Plaintiff and Appellee, v. Dale W. BARTH, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

Page 359

593 N.W.2d 359

1999 ND 91

Nancy A. BARTH, Plaintiff and Appellee, v. Dale W. BARTH, Defendant and Appellant.

No. 980241.

Supreme Court of North Dakota.

May 19, 1999.

Melvin L. Webster, of Webster & Engel, Bismarck, N.D., for plaintiff and appellee.

John J. Mahoney, of Mahoney & Mahoney, Center, N.D., for defendant and appellant.

NEUMANN, Justice.

¶1 Dale W. Barth appealed the judgment, and an order amending the judgment, in a divorce action brought by Nancy A. Barth. We affirm.

¶2 Nancy A. Barth and Dale W. Barth married in 1988. Three children were born to the parties--Danica Oberlander in 1981, Desirae Barth in 1988, and Deriann Barth in 1992. The parties lived in a mobile home on Dale's parents' farmstead. Dale, a farmer, leased cropland and equipment from his father, Otto Barth, for $20,000 per year. The parties separated in February 1997, when Nancy and the children left the family home.

¶3 The trial court awarded Nancy a divorce from Dale, awarded Nancy custody of the children, awarded Dale four hours of supervised visitation with the children on the first and third weekends of each month, and ordered Dale to pay child support of $452 per month. The trial court awarded Nancy property valued at $13,193 and debt of $8,902, for a net award of $4,291. The trial court awarded Dale property valued at $69,375 and debt of $31,250, for a net award of $38,125. "To equalize property and debts," the trial court ordered Dale to pay Nancy "$16,917.00 on or before July 1, 1998." The court ordered Dale to pay Nancy's attorney fees of $4,976. After the judgment was entered, the trial court ordered it amended by ordering Dale "to pay $719.97 in court costs in this action" and that "Dale is to be credited for $1,150 he has already paid toward Nancy's attorney's fees."

¶4 Dale contends the trial court's division of property and calculation of Dale's income are clearly erroneous. Dale requests we reverse the judgment and "adjust[ ] the property division to exclude or limit from any award to Nancy the value of the three quarters of property which was paid for by Otto Barth, and adjust the calculation of Dale's income to properly establish his child support and attorney fee obligations."

I

¶5 Dale's complaint about the property distribution revolves around three quarters of land which Dale and Otto purchased on a contract for deed in 1991, payable over five years, which became paid for in 1995, and Nancy's interest, with her siblings, in one quarter of land, which she brought into the marriage. The trial court found the parties owned a one-half interest in the land purchased in 1991 and valued it at $43,200, which it included in the property distribution. When the land in which Nancy had a premarital interest was sold in 1997, Nancy received $11,000, which the trial court did not specifically address in the property distribution.

¶6 Dale contends "consideration must be given to the fact that Dale's father paid the entire purchase price for the contracted three quarters of land. Any interest owned by Dale was 'gifted' at best." Dale contends, "There is no evidentiary support to justify awarding any benefit to Nancy in this land." As to Nancy's premarital interest in one quarter of land, Dale contends, "The court erred as a matter of law in not including this property in the marital estate and making determinations as to its source and distribution."

¶7 A trial court's determinations on valuation and division of marital property are treated as findings of fact and will be reversed on appeal only if they are clearly erroneous. Gregg v. Gregg, 1998 ND 204, p 13, 586 N.W.2d 312; Kautzman v. Kautzman, 1998 ND 192, p 8, 585 N.W.2d 561; Linrud v. Linrud, 1998 ND 55, p 7, 574 N.W.2d 875; Grinaker v. Grinaker, 553 N.W.2d 204, 208 (N.D.1996). "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence the reviewing court is left with a definite and firm conviction a mistake has been made." Kautzman, at p 8. A trial court's findings of fact are presumed correct. Kautzman, at p 8; Grinaker, at 208. The burden is on the complaining party to demonstrate on appeal a finding of fact is clearly erroneous. Linrud, at p 7.

¶8 Under N.D.C.C. § 14-05-24, "the court must consider all of the property accumulated by the parties, both jointly and individually owned," Hoge v. Hoge, 281 N.W.2d 557, 561 (N.D.1979), "regardless of source," Zuger v. Zuger, 1997 ND 97, p 8, 563 N.W.2d 804. "We have repeatedly held that property brought into the marriage by one party, and separate property acquired by gift, inheritance, or otherwise, must be included in the marital estate and is subject to distribution." Grinaker, 553 N.W.2d at 208. " '[O]nly after all assets are included in the marital estate can a trial court apply the Ruff-Fisher [sic] guidelines and consider the sources of the property in making an equitable distribution.' " Linrud v. Linrud, 552 N.W.2d 342, 344 (N.D.1996) (quoting Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 621 (N.D.1994)). A trial court may properly consider property to be marital property, if supported by evidence, even though a party claims it is owned by a nonparty. See Dinius v. Dinius, 448 N.W.2d 210 (N.D.1989). Marital property ordinarily will be valued as of the date of trial. Grinaker, 553 N.W.2d at 208-09. "An equal division of marital property is a logical starting point in a long-term marriage." Linrud, 1998 ND 55, p 7, 574 N.W.2d 875. Thus, "we begin with the view that marital property should be equally divided and substantial disparities must be explained." Kautzman, 1998 ND 192, p 21, 585 N.W.2d 561.

a. Contract for Deed Land

¶9 Nancy testified the three quarters of land purchased on a contract for deed during the marriage were paid for "[t]hrough cattle. When they sold the calves, grain." She testified, "To my knowledge, Dale and Otto Barth both" "made the payments on the contract for deed." She testified, "I am sure Otto wrote the checks, because Dale doesn't own or take care of a checking account."

¶10 Nancy introduced as an exhibit a contract for deed executed on December 30, 1991, for the sale and purchase of three quarters of land in Oliver County, described as "NW 1/4, NE 1/4, and SW 1/4, Section 16-142-83," for $86,400, with a down payment of $25,920, and the balance payable in four installments due on December 1 in the years 1992-1995. The contract for deed recites it is "by and between KENNETH PORSBORG and DARLENE PORSBORG, husband and wife (hereinafter 'Seller'), ... and OTTO BARTH and DALE BARTH, father and son, (hereinafter 'Purchaser')."

¶11 Ellen Leinus, Oliver County abstracter, did a search on the three quarters of land, starting with the "contract for deed, document number 73776, which was filed December 30, 1991 at 2:00 p.m." Leinus testified that, since then, on March 24, 1997, a quitclaim deed was entered, "in which the grantor was Otto Barth and Barbara Barth, husband and wife, and the grantee was Barbara Barth," and there have been no other conveyances of title.

¶12 Dale testified he does not own any land. Dale testified Otto Barth made all the payments on the three quarters of land "by checks written," Dale made none of the payments, the land is not under his control, and Otto Barth pays the taxes on the land. Dale testified his name was put on the contract for deed "for secondary name. The way that was wrote up was for a contract for deed. If there is a default on a payment, that my dad would not have been able to make a payment on it in any way, the land would have went back to Porsborgs."

¶13 A choice between two permissible views of conflicting evidence is not clearly erroneous. Gregg, 1998 ND 204, p 7, 586 N.W.2d 312. We conclude the trial court's findings of fact on the ownership, valuation, and distribution of the three quarters of land purchased by Dale and Otto Barth in 1991 are not clearly erroneous.

b. Nancy's Land

¶14 Dale contends the trial court erred in not including in the marital estate a quarter of land in which Nancy had an interest before the marriage. The land was sold in 1997 and Nancy received $11,000 for her interest in it. Nancy no longer owned the land at the time of trial and had spent much of the proceeds. The trial court did not specifically address Nancy's premarital interest in the land or her disposition of the proceeds of her share of its sale.

¶15 The financial status of divorcing parties, as it existed at the time of the commencement of the action, ordinarily should be maintained until the court has had an opportunity to appraise the evidence and determine the rights of the parties to the marital property, so, without a prior order of the court, neither party should dispose of or encumber marital property except in the normal course of business or personal affairs. We recognize a spouse will sometimes have an immediate need to cover expenses arising in the transition from married to single life, such as replacing household items, purchasing a car, or moving to another residence. "We have often said, however, a disadvantaged spouse is not required to deplete her property distribution in order to live." Fox v. Fox, 1999 ND 68, p 24.

¶16 Where a party transfers marital assets, resulting in dissipation of marital assets, inclusion of the value of the transferred assets in the dissipating party's share of the marital property distributed is "an appropriate method of reaching an equitable property division in light of [that party's] economic fault." Halvorson v. Halvorson, 482 N.W.2d 869, 870-71 (N.D.1992). "A party's dissipation of marital assets is a particularly relevant factor in arriving at an equitable distribution of the property." Id. at 871. "The allocation of value of dissipated assets is to offset the improper disposition of those assets." Id. at 871. However, if a marital asset has been...