Eberle v. Eberle, 20090332.

• Decision Date: 13 July 2010
• Docket Number: No. 20090332.,20090332.
• Citation: 2010 ND 107,783 N.W.2d 254
• Parties: John EBERLE, Plaintiff and Appelleev.Heidi EBERLE, Defendant and Appellant.
• Court: North Dakota Supreme Court

783 N.W.2d 254

2010 ND 107

John EBERLE, Plaintiff and Appelleev.Heidi EBERLE, Defendant and Appellant.

No. 20090332.

Supreme Court of North Dakota.

June 10, 2010.

Rehearing Denied July 13, 2010.

COPYRIGHT MATERIAL OMITTED

Paul Henry Myerchin, Bismarck, N.D., for plaintiff and appellee.

Donavin L. Grenz, Linton, N.D., for defendant and appellant.

KAPSNER, Justice.

[¶ 1]Heidi Eberle appeals from a divorce judgment, arguing the district court erred in distributing marital property belonging to her and John Eberle, in establishing the parties' parenting time for their children, and in denying her $1,816 in costs and disbursements for a prior appeal.We affirm the district court's distribution of marital property and designation of parenting time, and we reverse the court's denial of costs and disbursements for the prior appeal and remand for imposition of those costs.

I

[¶ 2] John and Heidi Eberle were married in 1996.During their marriage, John Eberle adopted Heidi Eberle's child from a previous relationship and the parties had three additional children.John Eberle is a farmer in rural Emmons County.Before the marriage, he farmed about 440 acres of land he had purchased from his parents, and in 2004, the parties executed a contract for deed to purchase another 1,000 acres of land from John Eberle's mother.Heidi Eberle was not employed outside the home during most of the marriage.Heidi Eberle and the children moved out of the parties' residence in February 2007.When Heidi Eberle left the residence, she took the parties' 2001Ford Winstar minivan, some clothing, some household items, some personal property, and $5,000 from the parties' joint bank account.

[¶ 3]The parties initially entered into a settlement agreement to dissolve their marriage and to resolve issues about custody, child support, property division, and debt allocation.Under the agreement, the parties received joint legal custody of the children, with Heidi Eberle receiving primary legal custody and John Eberle receiving liberal visitation.Both parties waived any right to receive spousal support.The agreement divided the parties' marital property, with Heidi Eberle receiving the 2001Ford Winstar minivan, her checking account, any furniture and other personal property in her possession, and any personal clothing or other personal effects remaining in the marital residence.The agreement awarded John Eberle all the real property, including the residence and farmland, a 2001 pickup, all farm equipment, machinery and tools, his checking account, the household goods and furnishings remaining in the marital residence, and all other personal property in his possession.Under the agreement, John Eberle assumed all the debt related to the farm, the parties divided the Capitol One credit card debt, and Heidi Eberle assumed all other credit card debt.In March 2007, the district court entered a judgment incorporating the parties' settlement agreement and granting them a divorce.

[¶ 4] In January 2008, Heidi Eberle moved for relief from the judgment.She also sought sole custody of the children and a specific visitation schedule.After an October 2008 evidentiary hearing, the district court found the parties' settlement agreement was free from mistake, duress, menace, fraud, and undue influence, the agreement was not unconscionable, and the agreement was binding on the parties.In Eberle v. Eberle,2009 ND 107, ¶¶ 1, 37, 43, 766 N.W.2d 477, we held the parties' settlement agreement was procedurally and substantively unconscionable, and we reversed the order denying Heidi Eberle relief from that judgment and remanded to the district court for an equitable distribution of the parties' marital property.

[¶ 5] On remand, the district court granted Heidi Eberle $125 in costs for filing fees for her prior appeal to this Court, but denied her $1,816 in costs for the preparation of a transcript and for the electronic filing of additional pages for her appellate brief and appendix.In distributing the parties' marital estate, the court said John Eberle worked hard during the marriage to provide for the family through his farming and dairy operation, which allowed the family to live comfortably and allowed him to make monthly payments for credit card debt accumulated by Heidi Eberle.The court found John Eberle assisted Heidi Eberle in raising the children, Heidi Eberle brought no property into the marriage, John Eberle paid off her existing debts when the relationship started, she was “fiscally irresponsible during the marriage,” and the “marriage essentially ended due to Heidi's extra-marital affairs.”The court adopted John Eberle's valuations of the parties' marital property and debt.The court found the Eberle farm constituted substantially all of the parties' property and Heidi Eberle brought nothing more than debt into the marriage.The court decided it would be inappropriate to divide the third-generation family farm and delineated the issue as how much debt John Eberle should bear to make an equitable monetary payment to Heidi Eberle.The court specifically found Heidi Eberle lied about the circumstances of the execution of the parties' settlement agreement and lied during a bankruptcy proceeding about her financial demands in this divorce proceeding.The court explained Heidi Eberle's fiscal irresponsibility and other conduct justified her receiving substantially less property than John Eberle in the distribution of the parties' marital estate.

[¶ 6]The court awarded John Eberle the personal property in his possession and the family farming and dairy operation, which the court found had a net worth of about $852,000, and awarded Heidi Eberle personal property in her possession and a $150,000 cash payment within 90 days from John Eberle.In response to motions seeking the establishment of a schedule for parenting time, the court held an evidentiary hearing and thereafter established the parties' parenting time for their children.

II

[¶ 7]Heidi Eberle argues the district court erred in denying her $1,780 in costs for the transcript and $36 in costs for the electronic filing fee for additional pages in her appellate brief and appendix in the prior appeal.She argues she was required to order a transcript for the prior appeal under N.D.R.App.P. 10(b)(1), and she was entitled to recover those costs under this Court's mandate and N.D.R.App.P. 39.She claims although she may not have cited the transcript in her appellate brief in her prior appeal, the transcript supported her statement of the facts in that brief.

[¶ 8]This Court's mandate in Eberle ordered that “Heidi Eberle have and recover from John Eberle costs and disbursements on this appeal under Rule 39, N.D.R.App.P., to be taxed and allowed in the court below.”On remand, the district court decided Heidi Eberle was not entitled to $1,780 in costs for the preparation of a transcript for the prior appeal because “the transcript was not used as contemplated in NDCC 28-26-06(4)” and she was not entitled to $36 in costs for electronic filing of additional pages in her appellate brief and appendix because the additional filing fee was due to her “own failure in filing.”

[¶ 9]Rule 39(e), N.D.R.App.P., provides:

(e) Costs on Appeal in Civil Cases Taxable in District Court.The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs:

(1) the preparation and transmission of the record;

(2) the transcript, if necessary to determine the appeal;

(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal;

(4) the fee for filing the notice of appeal.

[¶ 10]Rule 10(b)(1), N.D.R.App.P., requires an appellant to provide a transcript of the proceedings on appeal.Sabot v. Fargo Women's Health Org., Inc.,500 N.W.2d 889, 891-93(N.D.1993).We have held that an appellant challenging a district court's findings of fact has the burden of demonstrating those findings are clearly erroneous under N.D.R.Civ.P. 52(a).Rosendahl v. Rosendahl,470 N.W.2d 230, 231(N.D.1991).“When an appellant raises issues on appeal regarding the findings of fact, it is difficult, if not impossible, for us to discuss the merits of the appeal without a transcript.”Rosendahl,at 231.If the record does not allow for a meaningful and intelligent review of alleged errors, we may decline to review those assertions.Id.

[¶ 11]Heidi Eberle's prior appeal challenged findings of fact issued after an evidentiary hearing.SeeEberle,2009 ND 107, ¶¶ 19-37, 766 N.W.2d 477(reviewing findings of fact).If she had not ordered the transcript for her prior appeal, she would have assumed the risk that the record precluded meaningful and intelligent review of claimed errors involving those factual issues and the risk that this Court would decline to review those claimed errors.SeeSabot,500 N.W.2d at 891-94.

[¶ 12] Under N.D.C.C. § 28-26-06(4), “the clerk of district court shall tax as a part of the judgment in favor of the prevailing party the following necessary disbursements ... [t]he legal fees of the court reporter for a transcript of the testimony when such transcript is used on motion for a new trial or in preparing a statement of the case.”The plain language of N.D.C.C. § 28-26-06(4) applies to “disbursements” for court reporter fees for a transcript used for a motion for a new trial, or for preparing a statement of the case.In Fowler v. Delzer,177 N.W.2d 756, 764(N.D.1970)(on petition for rehearing), this Court discussed N.D.C.C. § 28-26-06(4) in the context of an order awarding fees to the defendants for transcript preparation in a case in which the defendants, as appellants, prevailed in a prior appeal on an issue requiring the transcript.This Court explained that “disbursements” under N.D.C.C. § 28-26-06 are allowable as a matter of right, but “costs” are discretionary, and fees for a transcript for appellate reversal of a trial court's order granting a...