Mellum v. Mellum, No. 990174

Decision Date21 March 2000
Docket Number No. 990174, No. 990205.
Citation2000 ND 47,607 N.W.2d 580
PartiesDebra A. MELLUM, Plaintiff and Appellee, v. John E. MELLUM, Defendant and Appellant.
CourtNorth Dakota Supreme Court

William E. McKechnie of William E. McKechnie & Associates, P.C., Grand Forks, for defendant and appellant.

Jay H. Fiedler of Pearson Christensen, Grand Forks, for plaintiff and appellee.

KAPSNER, Justice.

[¶ 1] John Mellum appealed from an order of contempt requiring him to pay $4,500 and from a divorce judgment dividing the parties' property. We hold the trial court did not abuse its discretion in issuing the order of contempt and did not clearly err in dividing the property. We therefore affirm.

I

[¶ 2] Debra and John Mellum married in 1972. A few years later, John began a construction business and Debra acquired a degree in education. During the marriage, John worked for the construction business and built several rental properties. Debra raised their four children and sometimes assisted with the construction business. She also worked in recent years as a paraprofessional for the public school district.

[¶ 3] Problems arose during the marriage. John had two extramarital affairs. Both parties committed some physical and emotional abuse. Around 1990, the parties saw a marriage counselor. John, however, terminated the counseling.

[¶ 4] In 1997, John began working with Jennifer Owens. Debra thought John and Owens were having an affair and requested John stop working with Owens. John refused, and Debra asked him to move out. John then moved in with Owens. Debra sought a divorce.

[¶ 5] An interim order was entered in September 1998. The order provided Debra would use income from the parties' rental properties to pay all bills related to those properties. It also indicated Debra and John each would be responsible for personal expenses. John unsuccessfully sought to amend the interim order.

[¶ 6] In early 1999, John intercepted rent checks from tenants at the parties' rental properties. He collected approximately $8,700 and used approximately $4,500 of those funds to pay expenses unrelated to the parties' rental properties. Upon discovering John's actions, Debra moved for an order of contempt. John asserted he had used the money from the rent checks to "pay bills for the rental properties, as well as other regularly-incurred business expenses." The trial court determined John intentionally disobeyed the interim order by intercepting the rent checks and entered an order of contempt requiring John to pay $4,500 to Debra in order to avoid further sanctions. John appealed the order.

[¶ 7] After trial on the divorce action, the trial court indicated "[t]he main contention here is how to value and divide the parties['] extensive property" and acknowledged the Ruff-Fischer guidelines as controlling. The trial court found Debra maintained the household and served as primary caregiver to the couple's four children; Debra assisted throughout the marriage in the construction business; although Debra acquired an education degree shortly after the marriage, she did not work outside the home or the construction business until 1983 and she never acquired a full-time teaching position; John had extramarital affairs in 1981 and 1990; John terminated marital counseling sessions; John acknowledged a relationship with Owens and moved in with her immediately after Debra asked him to move out; using the equipment of the construction business, John helped Owens with some of her construction projects and John and Owens were building a home which they expect to sell for as much as $400,000.

[¶ 8] The trial court granted a divorce and distributed property valued at approximately $742,000, including five rental properties, to Debra. John received property valued at approximately $407,000, including two rental properties. Considering Debra's wages from paraprofessional work during the school year, a minimum wage during the summer and income from the rental properties awarded to her, the trial court projected her future annual gross income would be $51,600. Considering John's potential income as a full-time construction superintendent1 and income from the rental properties awarded to him, the trial court projected his future annual gross income would be $53,160. The trial court indicated "[w]ith this allocation, [it] will not award Debra spousal support." Judgment was entered on June 17, 1999, and John appealed. John's appeal of the order of contempt was joined with his appeal of the divorce judgment.

II

[¶ 9] John contends several of the trial court's findings are erroneous. A trial court's findings of fact will not be reversed unless they are clearly erroneous. Fox v. Fox, 1999 ND 68, ¶ 7, 592 N.W.2d 541. 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. Id.

[¶ 10] John asserts the trial court erred in intimating the existence of a sexual relationship between John and Owens prior to John and Debra's separation. The trial court, however, did not find John and Owens were having an affair prior to the separation. Rather, the trial court merely found a relationship existed between John and Owens. John admitted that after being confronted by Debra just prior to their separation, he told Debra "[Owens] is in my life." John testified he meant Owens was in his life because "everybody that I meet is in my life." Both John's testimony and Owens' testimony establish they had a business relationship prior to John and Debra's separation. The trial court thus did not clearly err in finding a relationship between John and Owens existed prior to John and Debra's separation.

[¶ 11] John next asserts the trial court erred in making findings that detailed Debra's contributions to the parties' construction business but did not note his own contributions.2 However, the trial court did recognize John's contributions to the construction business. The trial court noted John "started his own construction company" and "was primarily responsible for the construction" of the parties' home. The trial court referred to Debra's actions involving the construction business as "help[ing] John" or "assist[ing] John." Both parties testified Debra performed various tasks at construction job sites during the marriage. We accordingly conclude the trial court did not clearly err in noting Debra's contributions to the construction business or by ignoring John's contributions to the construction business.

[¶ 12] John alleges the trial court erred in intimating he was unwilling to save the marriage. John emphasizes the trial court found he was unfaithful during the marriage, and he agreed "to play along" with counseling but later terminated counseling sessions. John admitted he had two affairs during the marriage. He also testified he disagreed with the marriage counselor's approach but decided to "play along with this counseling." Both parties agreed John later terminated the counseling sessions. Because the trial court's findings are consistent with the evidence, they are not clearly erroneous.

[¶ 13] John finally argues the trial court erred in determining Debra's income because it did not impute income to Debra based on a teacher's salary.3 The trial court instead used Debra's wages as a paraprofessional for the school term and imputed a minimum wage for the summer months. Debra's ability to obtain a teaching position has decreased because, shortly after acquiring her degree, she opted to raise the parties' four children. Both John and Debra testified they agreed Debra would raise their children and John would work outside the home. During the approximately twenty-seven year marriage, Debra thus never acquired a teaching license and never pursued a full-time teaching career. In light of this evidence, we conclude the trial court did not clearly err by not using a teacher's salary to consider Debra's future income potential to support herself.

III

[¶ 14] John argues the trial court clearly erred in distributing approximately 65% of the property to Debra and approximately 35% of the property to him.4 A court must make such equitable distribution of divorcing parties' property as may seem just and proper. N.D.C.C. § 14-05-24. "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. "A property distribution need not be equal to be equitable, but a substantial disparity must be explained." Fox v. Fox, 1999 ND 68, ¶ 7, 592 N.W.2d 541. 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. Kautzman v. Kautzman, 1998 ND 192, ¶ 8, 585 N.W.2d 561.

[¶ 15] In distributing marital property, the trial court must use the Ruff-Fischer guidelines5 which indicate the following factors should be considered:

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 ¶ 9.

[¶ 16] John contends the trial court failed to explain its rationale for the unequal distribution. There must be some "indication of the rationale of the trial court in distributing the property." Linrud v. Linrud, 552 N.W.2d 342, 346 (N.D.1996) (citation omitted). Remand for clarification of...

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  • Johnson v. Johnson
    • United States
    • North Dakota Supreme Court
    • September 14, 2000
    ...property division are treated as findings of fact which this Court will not reverse unless clearly erroneous. N.D.R.Civ.P. 52(a); Mellum v. Mellum, 2000 ND 47, ¶ 14, 607 N.W.2d 580. There is no set formula for this division, but rather it should be based on the facts of the case. Mellum, at......
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    • North Dakota Supreme Court
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    ...and spousal support are interrelated, and often must be considered together.’ ” Dronen, 2009 ND 70, ¶ 41, 764 N.W.2d 675 (quoting Mellum v. Mellum, 2000 ND 47, ¶ 19, 607 N.W.2d 580). “ ‘A difference in earning power is an important factor in both spousal support and property division determ......
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    ...together, we have approved awards of a greater amount of property to disadvantaged spouses in lieu of spousal support. See Mellum v. Mellum, 2000 ND 47, ¶ 19, 607 N.W.2d 580; Bender v. Bender, 276 N.W.2d 695, 698 (N.D.1979). We have said a disadvantaged spouse is one who has foregone opport......
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