Horner v. Horner, 20030367.

Decision Date31 August 2004
Docket NumberNo. 20030367.,20030367.
Citation2004 ND 165,686 N.W.2d 131
PartiesGilbert S. HORNER, Plaintiff and Appellant, v. Edwina M. HORNER, Defendant and Appellee.
CourtNorth Dakota Supreme Court

Richard B. Baer, Richard B. Baer, P.C., Bismarck, for plaintiff and appellant.

Donavin L. Grenz, Linton, for defendant and appellee.

NEUMANN, Justice.

[¶ 1] Gilbert S. Horner appealed from a judgment granting him a divorce from Edwina M. Horner and dividing their marital property. We conclude the district court's division of marital property is not clearly erroneous, and we affirm.


[¶ 2] Gilbert, age 43 at the time of trial, and Edwina, age 39, met and began dating during the late 1990s. Gilbert has a high school education and Edwina has attended "some college." Gilbert was farming with his father near Kintyre under an informal one-quarter crop-share partnership and also worked part-time for two area livestock markets. Gilbert also owned cattle he kept on his parents' farm. Edwina was living in Bismarck with her young daughter from a previous relationship and working for Vintage Guitar, Inc. Edwina had been working full-time for several years as the shipping manager at Vintage Guitar and was earning $9.75 per hour, or about $21,000 per year, plus medical benefits. Edwina was also in the preliminary stages of attempting to purchase a home. However, the couple became engaged and Edwina agreed to "move out to the farm, help out on the farm and work a part time job." In September 1999, Edwina quit her job at Vintage Guitar and moved to Linton with her daughter so the child could begin school there. Edwina was employed part-time at a variety of Linton area jobs, earning substantially less than she had earned in Bismarck. Gilbert eventually purchased a double-wide trailer in March 2000, moved it to his parents' farmstead, and Edwina and her daughter moved from Linton to the farm.

[¶ 3] Gilbert and Edwina were married on September 30, 2000, in Linton, and Gilbert paid off about $11,000 of Edwina's debts. Edwina continued to work at a Linton grocery store during the early part of the marriage until Gilbert asked her to quit, insisting that she stay home on the farm. Edwina performed the household chores, cared for Gilbert and her daughter, and also helped out with farm chores. She had an accident with a 4-wheeler while checking cattle and aggravated injuries she had received in a 1995 automobile accident. Marital problems developed and the couple separated at the end of August 2001 for a four-month period. They reunited during Christmas 2001, and lived together for ten additional months, until Gilbert told Edwina to leave the marital home and sued her for divorce in October 2002.

[¶ 4] Around this time, Gilbert began making gifts and payments to his father. He sold two grain hopper bins valued at more than $7,500 to his father for $1 each, and bought him a bull. He sold calves and gave his father a cattle proceeds check for $21,700 and paid the Production Credit Association $28,500 on his father's loan for a new piece of farm equipment. Gilbert also cashed in two life insurance policies. In the meantime, Edwina had moved back to Bismarck with her daughter, found an apartment, and attempted to support herself and her daughter on $370 per month child support payments from the child's father and from approximately $6,000 in her daughter's savings account. Edwina currently works part-time, 28 hours per week, as a clerk at a Bismarck medical center earning $8.35 per hour. She suffers from arthritis and back and neck pains, but has been unsuccessful in applying for social security disability benefits. The district court ordered that Gilbert pay $1,000 per month in interim spousal support pending the divorce trial, $983 to reimburse Edwina for new tires on her pickup and moving expenses, $1,500 for Edwina's partial attorney fees, and $80 for reimbursement of payment of Gilbert's divorce filing fee.

[¶ 5] The only contested issues during the trial were the distribution of the marital property and Edwina's request for spousal support. Edwina proposed, at a minimum, that she receive more than $40,000 "for her lost earnings and benefits which she gave up to become Plaintiff's wife," rehabilitative spousal support in the amount of $1,000 per month for two years, and her attorney fees and costs. Gilbert sought an "unequal equitable division of the property of the parties based upon the facts that much of the assets involved in this case were owned by the Plaintiff prior to marriage and that they were originally acquired with the Plaintiff's personal funds." Gilbert argued spousal support should be terminated or substantially reduced as to the amount and period of payments, and that Edwina receive only "liquid assets ... limited to ... what the court believes would further be necessary to restore her to pre-marital status."

[¶ 6] The district court ruled that Gilbert had "attempted to hide or wrongfully gift assets," and included those assets, along with the proceeds of the life insurance policies, in the marital estate. The court further found "[m]ost of their assets and debts have been accumulated during their marriage." The court awarded Gilbert his farm assets, financial accounts and household goods, totaling $186,939. The court awarded Edwina her vehicle, financial account, household goods and personal debt, for a net total of $5,681. The court ordered a further division was necessary, reasoning:

Eleven days before Edwina signed the Admission of Service, Gilbert cashed in a... Knights of Columbus insurance policy on October 7, 2002, and received cash proceeds in the amount [of] $7,125. He cashed in another Knights of Columbus insurance policy on November 21, 2002 [this, of course, was after he served his own Summons which required both parties not to dispose of any assets except for the necessities of life and the retention of counsel, and to account to the other spouse for the proceeds within 30 days], and received cash proceeds in the amount of $6,452. It appears there is a life insurance policy with Security International Insurance Company that is still in force with a cash value of $2,243. The total of these three items is $15,820, which shall be added to Gilbert's subtotal of $186,939 for a total of $202,759. The Court is reducing this amount by the total of the monthly support payments he has made to Edwina as required by the Interim Order in the amount of $1,000 per month, which was paid for eleven months, for a deduction of $11,000. The Court is also allowing a similar deduction for Gilbert for his living expenses for those same eleven months for another $11,000. Thus, the court is reducing the amount of Gilbert's share of the marital estate by $22,000 to $180,759. Although the Court has added in assets Gilbert attempted to hide or transfer, if he had not done so, they would have been in the family checking account and would have paid the maintenance expenses of the family unit in the interim. Since the Court has included all of these hidden assets, it has allowed the $22,000 in family expenses as an offset.
The difference between the award of a sub-total of $180,759 to Gilbert and the award of a sub-total of $5,681 to Edwina is $175,078. One-half of this amount paid to Edwina by Gilbert would make the distribution of the marital estate equal and equitable. One-half of the difference is $87,539.
As further division, Gilbert is ORDERED to pay Edwina the sum of $20,539 no later than December 31, 2003, and the sum of $1,000 per month for 67 months beginning with the month of January, 2004. Said payments are to be made on or before the 5th day of each month. With these funds, Edwina can pay her attorney fees and costs.

The court did not award Edwina any spousal support and left the parties responsible for payment of their own attorney fees. Gilbert appealed.


[¶ 7] Gilbert argues the district court erred in distributing the marital property.

[¶ 8] A district court's decision regarding division of property is a finding of fact reversible on appeal only if clearly erroneous. Hogan v. Hogan, 2003 ND 105, ¶ 14, 665 N.W.2d 672. A finding of fact is clearly erroneous if it is 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. Walker v. Walker, 2002 ND 187, ¶ 7, 653 N.W.2d 722.

[¶ 9] Under N.D.C.C. § 14-05-24(1), when a divorce is granted, the district court must make an equitable distribution of the property of the parties. When distributing marital property, all of the assets must be considered to ensure the division is equitable. Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 21, 673 N.W.2d 601. When all of the assets and debts have been included, the district court can apply the Ruff-Fischer guidelines. Neidviecky v. Neidviecky, 2003 ND 29, ¶ 10, 657 N.W.2d 255. Under these guidelines, the court considers:

"The respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material. The trial court is not required to make specific findings, but it must specify a rationale for its determination."

Bladow v. Bladow, 2003 ND 123, ¶ 7, 665 N.W.2d 724 (quoting Weigel v. Weigel, 2000 ND 16, ¶ 6, 604 N.W.2d 462).

[¶ 10] Gilbert first argues the district court's finding that most of the marital assets and debts were accumulated during the marriage is clearly erroneous.

[¶ 11] During trial, the parties did not focus on when the bulk of the marital assets and debts were acquired. The...

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