Rudh v. Rudh

• Citation: 517 N.W.2d 632
• Decision Date: 15 June 1994
• Docket Number: 930342,Nos. 930253,s. 930253
• Parties: Martha Ann Cosgriff RUDH, Plaintiff and Appellee, v. Lawrence William RUDH, Defendant and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 632

517 N.W.2d 632

Martha Ann Cosgriff RUDH, Plaintiff and Appellee, v. Lawrence William RUDH, Defendant and Appellant.

Civ. Nos. 930253, 930342.

Supreme Court of North Dakota.

June 15, 1994.

R. Lee Hamilton of Hamilton, Juntunen & Cilz, Grand Forks, for defendant and appellant.

Patrick W. Fisher of McConn, Fisher, Olson & Daley, Grand Forks, for plaintiff and appellee.

LEVINE, Justice.

Lawrence W. Rudh appeals from judgment granting a divorce to his former spouse, Martha Ann Cosgriff Rudh, and from the trial court's order granting Martha temporary spousal support and attorney fees to defend this appeal. We affirm in part and reverse in part and remand.

Lawrence and Martha were married on November 25, 1983, in Fargo. On November 21, 1983, Martha and Lawrence entered into a premarital agreement, which purported to remove Lawrence's lake home from the couple's marital property. Three children were born during the marriage. Lawrence and Martha separated in January 1992 and were divorced on July 19, 1993.

During trial, Lawrence offered into evidence the premarital agreement. Martha objected, arguing that Lawrence had failed to raise the premarital agreement as a defense in his answer to the complaint, and had failed to disclose the premarital agreement in his answers to Martha's interrogatories. The trial court received the premarital agreement into evidence, subject to Martha's objection. In its memorandum decision and order, the trial court stated that by failing to assert the premarital agreement as a factor affecting property distribution in his answers to Martha's interrogatories, and because Martha was not represented by counsel when she signed the agreement, Lawrence had "waived his right to rely on the [premarital] agreement," and thus the trial court refused to enforce it.

The trial court awarded physical custody of the three children to Martha and ordered Lawrence to pay child support. The trial court did not order spousal support, but expressly reserved jurisdiction to award spousal support in the future, should it become necessary. The trial court accepted Martha's valuation and allocation of the couple's property and household furnishings. Lawrence appealed from the divorce judgment and moved for a stay of execution of the judgment. Martha moved for temporary spousal support and child support, and for attorney fees for the appeal. The trial court granted the stay and ordered Lawrence to pay monthly spousal support of $2,623 and child support of $1,877 from September 1993 through the pendency of the appeal, and $6,000 in attorney fees for the appeal. Lawrence then appealed from the trial court's order of monthly spousal support and attorney fees. Lawrence's appeals were consolidated.

I. Findings of Fact

Lawrence challenges the trial court's valuation of the marital estate, division of property, and determination of child support. ¹ We hold that these determinations are not clearly erroneous, and accordingly, affirm under NDRAppP 35.1(a)(2).

II. Temporary Spousal Support

In its memorandum opinion accompanying the divorce judgment, the trial court found that Martha and the children required $4,500 a month to maintain the standard of living to which they had become accustomed. See Bagan v. Bagan, 382 N.W.2d 645, 646 (N.D.1986). The trial court awarded this amount to Martha in the form of income from the property awarded to her and child support. When the trial court granted a stay of the judgment, it also ordered Lawrence to pay temporary support, $2,623 per month in spousal support and $1,877 per month in child support, to provide for Martha's and the children's living expenses during the pendency of this appeal.

Lawrence argues that the trial court should have correlated the award of temporary spousal support with the income Martha would receive from the property awarded her in the judgment to avoid "double recovery" if we affirm. On the other hand, Martha's attorney assures us that the trial court will credit Lawrence for support payments in its accounting. It is not clear from the record who is right. In any event, it is clear to us that the trial court awarded temporary child and spousal support to counteract the effect of the stay, which prevented Martha from receiving income from the assets awarded her during the pendency of the appeal. The trial court obviously did not intend Martha to receive double payments during the pendency of the appeal, nor does Martha so argue. Therefore, we remand so that the trial court can offset the amount of the temporary spousal support payments against Martha's right to the income from her assets during that time.

III. Future Spousal Support

Lawrence argues that the trial court erred in retaining jurisdiction over spousal support. The parties have not asked us, nor do we choose, to revisit Becker v. Becker, 262 N.W.2d 478 (N.D.1978). In Becker, we held that where a trial court makes no initial award of spousal support and fails to reserve expressly its jurisdiction, the trial court subsequently lacks jurisdiction to order spousal support. Here, a substantial portion of the marital estate is mineral interests. The trial court expressed its concern about the volatility and possible depletion of some of the income-producing assets awarded to Martha and expressly reserved jurisdiction should the changing conditions warrant an award of spousal support. Given the trial testimony and arguments on appeal regarding the fluctuating value of and income produced by the assets, we conclude that the trial court did not abuse its discretion in exercising caution and reserving its jurisdiction over spousal support.

IV. Premarital Agreement

Lawrence argues that the trial court erred in refusing to enforce the premarital agreement. The trial court refused to enforce the premarital agreement because Martha "was not represented by counsel, and the existence of the agreement was not asserted by [Lawrence] in answers to interrogatories as a factor affecting property distribution." We need not reach the issue of whether the premarital agreement was invalid solely for lack of counsel, as we conclude that the trial court did not abuse its discretion in refusing to enforce the agreement because of Lawrence's failure to disclose his reliance on it in his answers to interrogatories.

Martha submitted the following interrogatory to Lawrence:

"41. List any other factors which you claim the court should consider when making an 'equitable division' of your property so as to give you special consideration in the form of additional property, and state with particularity and not in general terms, your reasons or basis for such a claim."

Lawrence responded only by objecting to the interrogatory on the ground that it did not seek the disclosure of facts and invoking the attorney-client privilege. Lawrence did not disclose his intent to rely on the premarital agreement until his deposition, thirteen days before trial. ²

Although the trial court stated only that Lawrence had "waived his right to rely on the [premarital] agreement," Lawrence characterizes the trial court's refusal to enforce the premarital agreement as the imposition of a discovery sanction under NDRCivP 37. Rule 37(b) provides authority for a trial court to impose sanctions for a party's failure to answer interrogatories. ³ A party's evasive or incomplete answer to an interrogatory is treated as a failure to answer under the rule. NDRCivP 37(a)(3). It appears that Rule 37 addresses the situation at hand, because Lawrence's answer could be deemed evasive or incomplete. But a trial court may not impose sanctions under Rule 37(b) until a party violates a discovery order: "[I]f a party's discovery responses are inadequate, the party seeking discovery must apply to the court for an order to compel discovery and [Rule 37(b) ] sanctions cannot be invoked until that order is disobeyed." Production Credit Ass'n v. Foss, 391 N.W.2d 622, 624 (N.D.1986); see also Dakota Bank & Trust Co. v. Brakke, 377 N.W.2d 553, 555 (N.D.1985); Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1363 (2d Cir.1991) ["Provided that there is a clearly articulated order of the court requiring specified discovery, the district court has the authority to impose Rule 37(b) sanctions for noncompliance with that order."]. Because Martha did not move for an order to compel discovery and the trial court did not issue one, the trial court's refusal to enforce the premarital agreement is not a sanction under Rule 37(b). See Bachmeier v. Wallwork Truck Ctrs., 507 N.W.2d 527, 531-32 (N.D.1993) [concluding that trial court's order granting summary judgment could not have been invoked under Rule 37 because no discovery order was issued or violated]. ⁴

However, our analysis does not end there. The trial court's conclusion that Lawrence "waived" his right to rely on the premarital agreement and its refusal to enforce the agreement may be understood as the exercise of its inherent power to protect the integrity of its processes by imposing sanctions. See Bachmeier, supra at 532-35. We will overturn a trial court's sanctions based on this inherent power only upon a showing that the trial court abused its discretion. E.g., id. at 533.

We have not uncovered, nor have the parties cited, a case directly on point. On several occasions, however, we have upheld a trial court's exercise of its inherent power to impose sanctions for a party's failure to supplement its answers or to give correct answers to interrogatories. In Benedict v. St. Luke's Hosps., 365 N.W.2d 499, 503-04 (N.D.1985), we upheld the trial court's refusal to allow the plaintiffs to present evidence of specific hospital standards where the plaintiffs did not indicate in their answers to interrogatories that they intended to rely on those standards. The defendants did not move for an order to compel discovery, but objected to the plaintiffs' attempt to introduce such evidence at trial. We analyz...