Kosobud v. Kosobud

• Decision Date: 19 July 2012
• Docket Number: No. 20110296.,20110296.
• Citation: 2012 ND 122,817 N.W.2d 384
• Parties: Arnold KOSOBUD, Plaintiff, Appellant and Cross–Appellee, v. Teresa KOSOBUD, Defendant, Appellee and Cross–Appellant.
• Court: North Dakota Supreme Court

817 N.W.2d 384

2012 ND 122

Arnold KOSOBUD, Plaintiff, Appellant and Cross–Appellee,

v.Teresa KOSOBUD, Defendant, Appellee and Cross–Appellant.

No. 20110296.

Supreme Court of North Dakota.

June 13, 2012.

Rehearing Denied July 19, 2012.

Deborah Joan Carpenter, Bismarck, N.D., for plaintiff, appellant and cross-appellee.

Suzanne Marie Schweigert, Bismarck, N.D., for defendant, appellee and cross-appellant.

KAPSNER, Justice.

[¶ 1] Arnold Kosobud appeals and Teresa Kosobud cross-appeals from a judgment ¹ granting the parties a divorce, distributing their marital property, and ordering Arnold Kosobud to pay spousal support and attorney fees to Teresa Kosobud. We affirm, concluding the district court's findings of fact on property distribution and spousal support are not clearly erroneous and the court did not abuse its discretion in awarding attorney fees and in denying Arnold Kosobud's post-trial motions.

I

[¶ 2] The parties married in 1966 in North Dakota. They had three children, all now adults. The family moved numerous times to accommodate Arnold Kosobud's employment opportunities. Arnold Kosobud has a college degree in business education and Teresa Kosobud has a high school education and one year of training at a business college. The parties invested in real estate. In the early 1990s Teresa Kosobud had a savings account holding $71,000, which the parties had received from the sale of a home in Grand Forks before payment of about $21,000 in taxes. The parties separated in 1993 when Arnold Kosobud left the family in Sioux Falls, South Dakota, and moved to Bismarck with only his personal items and a pickup truck. He went through bankruptcy, but eventually obtained his real estate license and became a real estate agent and property manager. Arnold Kosobud did not seek a legal separation or divorce at that time. Instead, Arnold Kosobud continued to provide support for the family, and ultimately for Teresa Kosobud alone, ranging from $500 to $1,200 per month. He also paid Teresa Kosobud's auto insurance and replaced her vehicles when necessary.

[¶ 3] Arnold Kosobud ceased making the support payments when he commenced this divorce action in December 2009. At the time of trial, Arnold Kosobud was 64 years old, worked in the real estate business, had a five-year average income of $95,200, and owned a home and a rental property in Bismarck. Teresa Kosobud was 63 years old, worked at Macy's, had a five-year average income of $14,400, rented a townhouse in Sioux Falls, and had medical conditions including back pain and high blood pressure.

[¶ 4] Following a hearing, the district court issued an opinion on the divorce issues. Teresa Kosobud moved to amend the judgment under N.D.R.Civ.P. 60(a) and (b)(1) and (6), requesting correction of “clerical” mistakes and mistakes “arising from oversight or omission.” Arnold Kosobud moved for a new trial under N.D.R.Civ.P. 59, or in the alternative, for relief from the judgment under N.D.R.Civ.P. 60, challenging the property division and the award of spousal support. The court corrected parts of its decision, but otherwise denied the post-trial motions. The court ultimately awarded Arnold Kosobud $478,911 in marital assets and $282,800 of the debt, resulting in a total marital property distribution of $196,111. The court awarded Teresa Kosobud $30,430 in marital assets and ordered Arnold Kosobud to pay her $70,000 in cash. The court ordered Teresa Kosobud to pay her debts, including a $7,000 loan she had received from her family. The court also ordered Arnold Kosobud to pay a portion of Teresa Kosobud's attorney fees in the amount of $15,000 and to pay her $1,500 per month in spousal support until she begins drawing social security benefits, when the spousal support award will be reduced to $1,000 per month until she either dies or remarries.

II

[¶ 5] Both parties challenge the district court's distribution of marital property.

[¶ 6] In Crandall v. Crandall, 2011 ND 136, ¶¶ 17–19, 799 N.W.2d 388 (internal quotation marks and case citations omitted), we explained the principles to be considered in distributing marital property and our standard for reviewing marital property distributions:

Under N.D.C.C. § 14–05–24(1), a district court must make an equitable division of the parties' marital estate in a divorce action. In making an equitable distribution of marital property, a court must consider all of the parties' assets. After including all of the parties' marital assets in the marital estate, the court must consider the following factors emanating from Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952), and Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966), in its distribution of the parties' assets:

... 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.

A property division need not be equal to be equitable, but a substantial disparity must be explained. Generally, long-term marriage[s] support[ ] an equal distributionof [marital] property. However, financial misconduct and dissipation of assets are grounds for an unequal property distribution.

A district court's property distribution is treated as a finding of fact, and we will not reverse [the distribution] unless the district court's findings are clearly erroneous. 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 the reviewing court is left with a definite and firm conviction a mistake has been made. A trial court's choice between two permissible views of the weight of the evidence is not clearly erroneous, and simply because we may have viewed the evidence differently does not entitle us to reverse the trial court. On appeal, we do not reweigh conflicts in the evidence, and we give due regard to the trial court's opportunity to judge the credibility of the witnesses.

[¶ 7] Relying on caselaw from other jurisdictions, Arnold Kosobud argues the district court erred in valuing the parties' marital property at the time of the divorce rather than at the time the parties separated back in 1993. However, this Court has long held that assets accumulated after separation but prior to divorce are included in the marital estate. See Boeckel v. Boeckel, 2010 ND 130, ¶ 24, 785 N.W.2d 213;Lynnes v. Lynnes, 2008 ND 71, ¶ 14, 747 N.W.2d 93;Marschner v. Marschner, 2001 ND 4, ¶ 3, 621 N.W.2d 339;Kautzman v. Kautzman, 1998 ND 192, ¶ 10, 585 N.W.2d 561;Zuger v. Zuger, 1997 ND 97, ¶ 8, 563 N.W.2d 804;Keig v. Keig, 270 N.W.2d 558, 560 (N.D.1978). It is not particularly unusual for divorcing parties to have been separated and living apart for relatively long periods of time before their divorce is finalized. See, e.g., Peterson v. Peterson, 2010 ND 165, ¶ 15, 788 N.W.2d 296 (two-year separation); Lohstreter v. Lohstreter, 1998 ND 7, ¶ 2, 574 N.W.2d 790 (three and one-half year separation); Christmann v. Christmann, 1997 ND 209, ¶ 7, 570 N.W.2d 221 (“several years” separation); Van Klootwyk v. Van Klootwyk, 1997 ND 88, ¶¶ 6, 11, 563 N.W.2d 377 (five-year separation); Shulze v. Shulze, 322 N.W.2d 250, 251 (N.D.1982) (two-year separation). The sporadic nature of the parties' marriage is certainly a valid consideration for a court in making an equitable division of property under the Ruff–Fischer guidelines. See Hunt v. Hunt, 2010 ND 231, ¶ 11, 791 N.W.2d 164. But under our law the valuation must occur at the time of divorce, not at the time of separation.

[¶ 8] Moreover, although the 17–year separation here is lengthy, the record reflects that Arnold Kosobud provided monthly monetary support to Teresa Kosobud and provided other family assistance throughout the separation until he filed for divorce in late 2009. The district court specifically noted “the marriage continued without any indication that Mr. Kosobud did not want to continue in the marriage. He continued to support Ms. Kosobud.” These findings are supported by the record. We conclude the court did not err in refusing to value marital property at the time of the parties' 1993 separation.

[¶ 9] Teresa Kosobud argues the district court erred in valuing Arnold Kosobud's home in Bismarck at $235,000. In Eberle v. Eberle, 2010 ND 107, ¶ 17, 783 N.W.2d 254 (internal quotation marks and case citations omitted), we explained:

A district court's marital property valuations are not clearly erroneous if they are within the range of evidence presented. An owner of real property may testify as to the value of the land withoutany further qualification or special knowledge. The district court is in a better position than this Court to judge the credibility and observe the demeanor of witnesses and to determine property values.

In this case, Teresa Kosobud's expert appraiser valued the home at $250,000. Arnold Kosobud, the homeowner, valued the home at $234,800. The court's valuation of the home at $235,000 is within the range of the evidence presented and is not clearly erroneous.

[¶ 10] Both parties challenge the district court's valuation of Arnold Kosobud's rental property at $180,000. However, the court's valuation is well within the range of the evidence presented and also is not clearly erroneous.

[¶ 11] Arnold Kosobud argues the district court erred in using income averaging to compute his annual income because this case does not involve child support. Compare Doepke v. Doepke, 2009 ND 10, ¶ 7, 760 N.W.2d 131 (...