Schatke v. Schatke, 930367

• Decision Date: 24 August 1994
• Docket Number: No. 930367,930367
• Citation: 520 N.W.2d 833
• Parties: Rudy SCHATKE, Plaintiff and Appellant, v. Gail SCHATKE, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 833

520 N.W.2d 833

Rudy SCHATKE, Plaintiff and Appellant, v. Gail SCHATKE, Defendant and Appellee.

Civ. No. 930367.

Supreme Court of North Dakota.

Aug. 24, 1994.

Wefald Law Office, Ltd., Bismarck, for plaintiff and appellant; argued by Robert O. Wefald. Appearance by Rudy Schatke.

Spaeth, Thelen, Dearstyne & Van Voorhis, Grand Forks, for defendant and appellee. No appearance. Submitted on brief.

NEUMANN, Justice.

Rudy Schatke appealed from an order denying his motion to amend a divorce judgment dividing the marital estate and awarding child support. We conclude the trial court abused its discretion in refusing to amend the judgment, and we reverse and remand for further proceedings.

Rudy and Gail were married in 1980 and have three children. They purchased a home in Michigan, North Dakota. After Rudy retired from the Army, he and Gail purchased a business, Schatke Enterprises, Inc., a combination bar and restaurant, which they have operated together for two years. During that time it has been their primary source of income.

In 1993 the court dissolved Rudy and Gail's marriage on the ground of irreconcilable differences. The trial was divided into two hearings, the first on November 13 and 24, 1992, following which the court found that both parties had the capacity and disposition to provide love and care for the children, and awarded custody of the children and use of the family home in Michigan to Gail.

The second part of the parties' divorce trial was conducted on May 12, 1993. By memorandum dated July 13, 1993, and judgment entered August 10, 1993, the court awarded Gail property totaling $99,448 including the parties' home and business. The court awarded Rudy property with a value of about $59,114. The court also ordered "to more closely approximate the division of property" that Rudy receive a two year credit against paying child support. The court valued the credit at $600 per month ($200 per month per child) for a total credit of $14,400 over the two year period. The court further ordered that Rudy would be obligated to pay child support commencing in July 1995 "at the amount then applicable under the North Dakota Child Support Guidelines."

Acting pro se, Rudy filed a motion to amend the final judgment. The trial court treated it as a timely motion under Rule 59(j), N.D.R.Civ.P., but denied it. After securing counsel, Rudy filed an appeal from the denial of the motion to amend the judgment, but he did not appeal from the judgment itself.

The decision on a motion to amend a judgment under Rule 59(j), N.D.R.Civ.P., rests in the trial court's sound discretion and will not be reversed unless there is a manifest abuse of discretion. Erdmann v. Rants, 442 N.W.2d 441 (N.D.1989). A trial court abuses its discretion if it misinterprets or misapplies the law. Id.

Rudy asserts on appeal that the trial court's valuations of the parties' home and business are too low and that it was inequitable for the trial court to award Gail 63 percent, but Rudy only 37 percent, of the marital estate. Rudy also asserts that the child support credit was not computed in accordance with the child support guidelines. Rudy argues the credit is an erroneous attempt by the trial court to soften the disparity of the inequitable property division.

In dividing marital property the trial court must equitably distribute the parties' assets, and an equitable distribution can only be made if the trial court first determines the net worth of the assets. McAdoo v. McAdoo, 492 N.W.2d 66 (N.D.1992). Rudy contests the trial court's valuation of the parties' home and business.

The court valued the parties' home at $41,500, with an outstanding contract for deed balance of $10,954, resulting in a net value of $30,546. The court valued the business at $87,000, with a debt against the business of $47,000, for a total net value of $40,000. These values are clearly supported by the evidence in the record and will not be disturbed on appeal.

Rudy also complains that the property division is inequitable, because the property Gail received has substantially higher total value than the property awarded to Rudy. A property division need not be equal to be equitable, but a substantial disparity must be explained by the trial court. Gaulrapp v. Gaulrapp, 510 N.W.2d 620 (N.D.1994). The trial court's net property award to Gail of $99,448 compared to Rudy's net award of $59,114 constitutes a substantial, not a de minimis, disparity. See Sateren v. Sateren, 488 N.W.2d 631 (N.D.1992). The trial court offered the following explanation for the disparity:

"The above division of property gives the Defendant a greater proportion of the property, but she is awarded the property with the most speculative values, including a home and business in a small town, which may or may not be readily saleable in the future. Moreover, the success of the business will depend upon her own efforts to keep it going.

* * * * * *

"On the other hand, the Plaintiff is receiving almost all of the liquid cash assets. There is little or no risk of loss of these assets. The Plaintiff is an astute business person and he should be able to reinvest these funds...."

Our difficulty with this explanation is that the earning potential, risk of loss, and saleability of an asset normally is already included in the determination of the asset's value. The appraisal and evaluation of property is not an exact science, and a court can properly consider the speculation inherent in the appraisal of a particular asset. However, if the liquidity or saleability of an asset was not sufficient to alter its valuation by the court, that factor by itself normally would not justify a large disparity in the total value of property distributed to each party. To rely on these characteristics as independent justification for a substantial disparity, after they already have been factored into the property's value, is to count them twice. While the court ought not to consider asset values and property distribution in a vacuum, Heley v. Heley, 506 N.W.2d 715 (N.D.1993), and therefore properly considered the speculative nature of the values it placed on the Schatke home and business, this consideration, without more, would fail to explain the $40,000 disparity in this property division.

In this case, however, there is more; there are the additional factors of Rudy's child support obligation and his plan to obtain additional education and training. The trial court stated:

"In order to more closely approximate the division of property, the Court will grant [Rudy] a credit for child support for the next two (2) years, commencing in July, 1993 and extending through the month of June, 1995. During that time, he shall not be required to pay any child support (or spousal support) to [Gail]. During each month of the two years, he shall be credited with a payment of child support equivalent to $200.00 per month per child, or a total of $600.00 per month. Over two years, that would amount to $14,400.00. Child support will be payable, commencing in July, 1995, at the amount then applicable under the North Dakota Child Support Guidelines. Either party may schedule a motion at that time for the setting of child support so that the Judgment may be amended accordingly."

Gail claims on appeal that this "credit for child support" is not a form of property division or child support, but simply a "deferment" that does not have to be reduced to present value or computed according to the child support guidelines. We disagree. In effect, the trial court ordered Gail to pay $600 for 24 months to Rudy as property distribution installments, and ordered Rudy to pay an offsetting amount to Gail for child support. ¹

Standing alone, these property installments, totalling $14,400, would greatly reduce the disparity in the property division. See Heley, 506 N.W.2d at 718 (offsetting monetary award). However, because these payments were treated as prepayment of child support and never sent to Rudy, we must also determine whether Rudy's child support obligation was properly computed.

Section 14-09-09.7, N.D.C.C., authorizes the Department of Human Services to promulgate child support guidelines and creates a rebuttable presumption that the amount of support designated in the guidelines is correct. The child support guidelines provide a schedule of monthly payments based on an obligor's net income and the number of children for whom support is sought. Section 75-02-04.1-10, N.D.A.C. An obligor's net income is based on a projection of future income supported by the evidence presented to the court, including current wages or salary, Section 75-02-04.1-01(2), N.D.A.C., the use of property at a reduced or no charge, Section 75-02-04.1-01(3), N.D.A.C., and imputed income from assets, Section 75-02-04.1-07, N.D.A.C., as well as any other source of income recognized by the guidelines which the evidence might disclose.

After arriving at a child support amount determined through application of the guidelines, the court may find from a preponderance of the evidence, applying criteria referred to in Section 14-09-09.7(3), N.D.C.C., that the amount is insufficient. If that proves to be the case, the trial court may make a specific finding in compliance with Section 14-09-09.7(3), N.D.C.C., that the presumption has been rebutted, and may impose a greater child support obligation based upon application of the criteria which rebut the presumption. A child support award is clearly erroneous if it departs from the guidelines and the court does not expressly find that the support amount established under the guidelines has been rebutted by a preponderance of the evidence. Heley, 506 N.W.2d at 721-722.

In this case, the trial court, finding that Rudy was attempting to rehabilitate his earning potential by enrolling in a two year respiratory care training program at St. Alexius in Bismarck, tried to help Rudy by not requiring him to make child...