Dufner v. Dufner, 20010163.

Decision Date12 March 2002
Docket NumberNo. 20010163.,20010163.
PartiesJoe M. DUFNER, Plaintiff, Appellant and Cross-Appellee, v. Kerry A. DUFNER, Defendant, Appellee and Cross-Appellant.
CourtNorth Dakota Supreme Court

Ward K. Johnson III, Johnson & Associates, P.C., Grand Forks, for plaintiff, appellant and cross-appellee.

Jay H. Fiedler, Pearson Christensen, Grand Forks, for defendant, appellee, and cross-appellant.

KAPSNER, Justice.

[¶ 1] Joe Dufner appeals from a divorce judgment, challenging the trial court's decision granting a divorce on the grounds of irreconcilable differences, its property division, and child support calculation. Kerry Dufner has appealed the custody determination. The trial court was not clearly erroneous in granting the divorce on irreconcilable difference grounds, in its property division, or custody determination. The trial court did err as a matter of law in calculating Kerry's child support obligation. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I

[¶ 2] Joe and Kerry Dufner were married in January of 1994. Joe is a farmer and Kerry is a medical coder at a hospital in Grand Forks. They have two minor children. In August of 2000, Joe accused Kerry of committing adultery with a doctor with whom she worked. On August 9, 2000, Joe filed for divorce on the grounds of adultery. Kerry counterclaimed, asking for a divorce on the grounds of irreconcilable differences. Both parties petitioned for custody of their children.

[¶ 3] In an interim order, Joe was awarded temporary custody of the children, with Kerry to pay child support. In another interim order, Joe was ordered to disburse $5000 from the marital assets to Kerry for litigation expenses. After being granted immunity from criminal prosecution for adultery, Kerry admitted to an extramarital affair.

[¶ 4] On May 31, 2001, the parties were granted a divorce on the grounds of irreconcilable differences. Joe was awarded custody of the two children, and Kerry's child support obligation was calculated to be $497 per month. Joe has appealed the grounds on which the divorce was granted, the property division, and Kerry's child support calculation. Kerry has appealed the custody determination.

II

[¶ 5] If a trial court grants a divorce on the basis of irreconcilable differences, that decision will not be overturned unless we determine the finding of fact is clearly erroneous. Rambel v. Rambel, 248 N.W.2d 856, 859 (N.D.1977). A finding of fact is clearly erroneous if induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made. Peterson v. Peterson, 1999 ND 191, ¶ 6, 600 N.W.2d 851.

[¶ 6] Joe argues he has a right to seek, and be awarded, a divorce on the grounds of adultery. Kerry admits committing adultery, but petitioned the trial court for a divorce on irreconcilable difference grounds. At the time of their divorce, adultery and irreconcilable differences were two of eight causes for divorce. N.D.C.C. § 14-05-03.1 If the evidence establishes one of the grounds for divorce, it is not necessary for the court to make findings on other available grounds. See Rambel, 248 N.W.2d at 859

.

[¶ 7] There is sufficient evidence to find the trial court's grounds for divorce are not clearly erroneous. The trial court found fault in the marital breakup was not monopolized by the defendant and her extramarital affair. The trial court noted the long hours Joe worked on his farming operation, and how these hours devoted to the farm instead of to his family led Kerry to feel neglected. Kerry testified at the divorce trial that as early as the winter of 1997 she confronted Joe about her dissatisfaction with the marriage and the amount of hours he was working. Kerry testified:

I told him that I was very unhappy and I didn't feel like I was being treated with respect. I had told him many times and begged him many times to be around more in certain instances in the winter time. For instance, he would work 60 hours a week. I had asked him to please take Saturdays off. Those were the days we were home. He said he would have to talk it over with his father. It happened one time. He said you don't understand where a dollar comes from and this is what I'm going to do. I still have to work it. I told him too that the kids need you Joe and I don't want to be a single parent. We're married. You have to be participating more with the children.

Kerry also testified of Joe's dismissive reaction to her pleas—"[h]e would tell me it's not that bad. He would more-or-less dismiss me and more-or-less say that I was kind of crazy for thinking what I was doing and how I felt was he didn't really care how I felt." Granting a divorce on the grounds of irreconcilable differences because conduct of both parties contributed to the breakdown of the marriage is not clearly erroneous.

III

[¶ 8] Under N.D.C.C. § 14-05-24, "[w]hen a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper...." "There is no set formula for dividing a marital estate, but the trial court must equitably divide the property based upon the circumstances of the particular case." Nelson v. Nelson, 1998 ND 176, ¶ 6, 584 N.W.2d 527. With property division, equitable does not mean equal, but a substantial disparity needs to be explained. Wald v. Wald, 556 N.W.2d 291, 294 (N.D.1996). "The trial court's determinations regarding division of property are treated as findings of fact and will not be reversed unless they are clearly erroneous." Mellum v. Mellum, 2000 ND 47, ¶ 14, 607 N.W.2d 580.

[¶ 9] When distributing property, the trial court is compelled to use the Ruff-Fischer guidelines, which require consideration of the following factors:

the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical conditions; their financial circumstances as shown by the property owned at the time; its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and such other matters as may be material.

Id. at ¶ 15. We have held the trial court must consider all property accumulated by the parties, whether jointly or individually owned. Barth v. Barth, 1999 ND 91, ¶ 8, 593 N.W.2d 359. "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 v. Grinaker, 553 N.W.2d 204, 208 (N.D.1996). After all assets are included in the marital estate, under the Ruff-Fischer guidelines the source of the property can be considered in making the equitable distribution. Barth, at ¶ 8.

[¶ 10] Joe's primary arguments are the land he brought into the marriage should first be offset when dividing the marital estate, and the legal fees paid to Kerry should be factored into the distribution.

[¶ 11] The trial court found the net marital estate to be $400,993. Kerry was awarded property equal to one-half of this amount, part of which consisted of a cash settlement payable over ten years with interest, and part of which consisted of her retirement account, her vehicle, and cash. Joe's award of one-half of the net marital estate consisted of the farmstead, farm land, and all farm assets. In one of its orders, the trial court awarded Kerry $5000 for litigation costs.

[¶ 12] When dividing the marital estate, one factor, of many, under the Ruff-Fischer guidelines is the source of the property. However, a party's acquisition of a parcel of land before marriage does not automatically mean that party is entitled to the same parcel upon distribution. This Court has never decreed property brought into a marriage by a party must be irrevocably set aside for the party. Freed v. Freed, 454 N.W.2d 516, 521-22 (N.D.1990). "Whether property was acquired by one spouse before the marriage is a consideration, but not controlling." Peterson, 1999 ND 191, ¶ 8, 600 N.W.2d 851. In this case, the trial court correctly included the previously acquired land in the marital estate and then made its distribution, allocating the land to Joe after considering its value in structuring the cash settlement to Kerry.

[¶ 13] The trial court attempted to award the parties nearly equal property awards based on the Ruff-Fischer guidelines. In addition, $5000 was awarded to Kerry for her litigation expenses. This $5000 was not included in the computation of the parties' net marital estate. Joe is not appealing the amount of the award, or even the award itself. Rather, he is arguing the litigation costs awarded to Kerry must be explained in the property division. "It is well-settled in our case law a property division does not need to be equal to be equitable, but a substantial disparity must be explained." Young v. Young, 1998 ND 83, ¶ 11, 578 N.W.2d 111.

[¶ 14] The trial court valued the marital estate at slightly over $400,000. While "an award of attorney fees is `inextricably connected' to the other financial provisions" in a divorce decree, the guiding concepts for an award of attorney fees are "the parties' needs and ability to pay." Emter v. Emter, 1999 ND 102, ¶ 17, 595 N.W.2d 16. Furthermore, a trial court has considerable discretion in awarding attorney fees, and an award will not be overturned absent an abuse of discretion. Id.

[¶ 15] Even though the court did not itemize the award of attorney fees in the computation of the marital estate, in this case Joe has failed to show the resulting property distribution was clearly erroneous. See Heinz v. Heinz, 2001 ND...

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