Holbach v. Holbach

• Decision Date: 30 June 2010
• Docket Number: No. 20090319.,20090319.
• Citation: 784 N.W.2d 472,2010 ND 116
• Parties: Larry J. HOLBACH, Plaintiff and Appelleev.Randolph S. HOLBACH, Mitchell D. Holbach, Cynthia E. Strong, Christopher S. Holbach, and all persons unknown, claiming any estate or interest in or lien or encumbrance upon the real estate described in the Complaint, DefendantsRandolph S. Holbach, Appellant.
• Court: North Dakota Supreme Court

784 N.W.2d 472

2010 ND 116

Larry J. HOLBACH, Plaintiff and Appelleev. Randolph S. HOLBACH, Mitchell D. Holbach, Cynthia E. Strong, Christopher S. Holbach, and all persons unknown, claiming any estate or interest in or lien or encumbrance upon the real estate described in the Complaint, DefendantsRandolph S. Holbach, Appellant.

No. 20090319.

Supreme Court of North Dakota.

June 30, 2010.

COPYRIGHT MATERIAL OMITTED

Thomas M. Jackson (on brief) and Samuel G. Larson (argued), Bismarck, ND, for plaintiff and appellee.

Mark V. Larson (on brief) and Leo F.J. Wilking (argued), Minot, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Randolph Holbach appeals a district court's award of summary judgment to Larry Holbach, granting him quiet title to two quarters of land. We reverse, holding Larry Holbach's title is subject to the conditions set forth in the divorce judgment entered between himself and Judith Holbach.

I.

[¶ 2] Larry Holbach and Judith Holbach married in 1960 and had four children together. In 1976, Larry Holbach and Judith Holbach entered a contract for deed to purchase two quarters of land as joint tenants from Larry Holbach's parents. Judith Holbach and Larry Holbach divorced in 1983. The divorce judgment, which was entered upon the parties' stipulation, detailed their plan for the two quarters:

With respect to the property purchased on the Contract for Deed dated April 12, 1976, the parties agree as follows:

1. Defendant [Larry Holbach] shall have the right to farm the land until the Contract for Deed is paid in full. Defendant may keep all income from said property and shall pay all expenses, including payments as they come due on the Contract for Deed and all real estate taxes.

2. If Defendant shall cease to actively participate in the farming of the above land prior to the completion of the payments on the Contract for Deed, the parties shall lease said land. The parties agree to split the net income after payment of taxes and payments on the contract for deed and any other expenses connected with said property, as follows: to Plaintiff [Judith Holbach]-50%; to Defendant-50%.

3. Upon completion of the payments on said Contract for Deed and so long as Defendant is actively participating in the farming of said land, the Defendant shall have the right to continue farming said land. From the gross profits Defendant shall be paid for farming said land at the going rate at the time for each farming operation, which includes, but is not limited to the cropping, spraying, fertilizer, summer-fallowing and harvesting. That after payment to Defendant for farming said land there shall be deducted all taxes, insurance and other expenses relating to said land. The net profits or losses, if any, shall be divided and borne as follows: Plaintiff-50%; Defendant-50%.

4. That in the event Plaintiff and Defendant should mutually desire to sell all or any portion of said land during their lifetimes, the proceeds from said sale shall be divided as follows: to Plaintiff-30%; to Defendant-30%; and to the children-40%, unless otherwise mutually agreed between Plaintiff and Defendant.

5. Upon payment of the last installment due on said Contract for Deed, the parties agree that they shall retain title to the following property as joint tenants:

SW 1/4 of Sec. 33, Twp. 155N, Rge. 83W, Ward County, North Dakota.

NE 1/4 of Sec. 33, Twp. 155N, Rge. 83W, Ward County, North Dakota.

The parties agree that they shall by separate agreement contract to devise said property to their four children, namely, Christopher Scott, Randol[ph] Steven, Cynthia Elizabeth, and Mitchell David, in equal shares.

6. Upon the death of either party, the survivor shall receive 100% of the net income (all income, less all expenses, taxes and payments which may be due) during the remainder of the survivor's natural life. Upon the death of the survivor the property shall be distributed to the children in accordance with the separate agreement above mentioned.

Larry Holbach and Judith Holbach never executed the “separate agreement” referenced in paragraph 5 to devise the property to their four children. In September 2001, Larry Holbach's parents forgave the outstanding debt on the property and issued a quit claim deed, conveying it to Larry Holbach and Judith Holbach as joint tenants with the right of survivorship.

[¶ 3] In March 2002, Judith Holbach, then Judith Slorby, died. She had executed a will in February 2002 that attempted to convey her interest in the property to the four children by representation. In March 2003, Randolph Holbach, acting as personal representative of Judith Holbach's estate, issued a deed of distribution attempting to convey Judith Holbach's interest in the property to himself and his three siblings. Larry Holbach then brought a quiet title action against the four children. Randolph Holbach denied his father had a right to quiet title to the property, arguing the children had an interest in the property. Larry Holbach moved for summary judgment.

[¶ 4] The district court granted the motion and issued a judgment quieting title in Larry Holbach. The district court concluded Judith Holbach and Larry Holbach owned the property as joint tenants. The district court stated the joint tenancy was originally created by the 1976 contract for deed, affirmed by the parties in the 1983 divorce judgment, and again confirmed by the 2001 quit claim deed. Because they owned the property as joint tenants, the district court held that, when Judith Holbach died, title immediately passed to Larry Holbach as the surviving joint tenant, and the provision of Judith Holbach's will attempting to convey her interest in the property was inoperative. In addition, the district court found Larry Holbach's title was not restricted by the stipulation for divorce. The district court stated the stipulation demonstrated Judith Holbach and Larry Holbach agreed to execute a separate agreement to devise the property to their four children. However, because they never executed a separate agreement, the district court determined Larry Holbach was not bound to devise the property to the children.

[¶ 5] Randolph Holbach now appeals the summary judgment, arguing the stipulation constitutes a valid contract obligating Larry Holbach to devise the property to the four children. Larry Holbach requests double costs and attorney fees, arguing Randolph Holbach's appeal is frivolous and Randolph Holbach inappropriately included the stipulation, which was not in the record below, in the addendum to his brief.

II.

[¶ 6] This Court has outlined the standards governing summary judgment under N.D.R.Civ.P. 56 as follows:

Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.

Barbie v. Minko Constr., Inc., 2009 ND 99, ¶ 5, 766 N.W.2d 458 (quoting Farmers Union Oil Co. v. Smetana, 2009 ND 74, ¶ 8, 764 N.W.2d 665 (citations omitted)). If the moving party meets its initial burden of proving the absence of a genuine issue of material fact, the party opposing the motion for summary judgment must present competent admissible evidence to show the existence of a genuine issue of material fact. Barbie, at ¶ 6. “[M]ere speculation is not enough to defeat a motion for summary judgment.” Id. (quoting Heart River Partners v. Goetzfried, 2005 ND 149, ¶ 8, 703 N.W.2d 330).

[¶ 7] Randolph Holbach argues the stipulation between his parents constitutes a valid contract that obligates Larry Holbach to devise the property to his four children. Larry Holbach contends Randolph Holbach should be precluded from making this argument because the stipulation was not part of the record before the district court.

[¶ 8] While the stipulation was not part of the record below, the divorce judgment was. “[A] settlement agreement that is wholly incorporated into the divorce judgment is merged into that judgment and ceases to be independently viable or enforceable.” Slorby v. Slorby, 2009 ND 11, ¶ 4, 760 N.W.2d 89 (quoting Sullivan v. Quist, 506 N.W.2d 394, 399 (N.D.1993)); see also Botner v. Botner, 545 N.W.2d 188, 190 (N.D.1996) (“[W]hen a stipulation is incorporated into a divorce judgment, we are concerned only with interpretation and enforcement of the judgment, not with the underlying contract.”). “[A] judgment rendered in accordance with a stipulation entered between the parties in a marriage dissolution action is to be regarded and construed as a contract.” 24 Am.Jur.2d Divorce and Separation § 388 (2008). Randolph Holbach's attorney agreed at oral argument before this Court that the judgment is the controlling document. Thus, because the divorce judgment was part of the record below, and the stipulation is wholly incorporated therein, we hold Randolph Holbach is not precluded from arguing the stipulation constitutes a valid contract that obligates Larry Holbach to devise the property to his four children upon his death.

[¶ 9] This Court has previously held contracts to devise property are enforceable and become irrevocable...