Strankowski v. Strankowski, 890040

• Decision Date: 25 October 1989
• Docket Number: No. 890040,890040
• Parties: Sandra STRANKOWSKI, Plaintiff and Appellee, v. Charles STRANKOWSKI, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 323

447 N.W.2d 323

Sandra STRANKOWSKI, Plaintiff and Appellee, v. Charles STRANKOWSKI, Defendant and Appellant.

Civ. No. 890040.

Supreme Court of North Dakota.

Oct. 25, 1989.

Lundberg, Nodland, Schulz, Lervick & Tharaldson, Bismarck, for defendant and appellant; argued by Irvin B. Nodland.

Ottmar & Ottmar, Jamestown, for plaintiff and appellee; argued by Joanne H. Ottmar.

GIERKE, Justice.

This is an appeal by Charles Strankowski from a district court order which required that any proceeds from judgment or settlement arising from Charles' accident be placed with the court. We affirm.

Sandra Strankowski and Charles Strankowski were divorced on May 29, 1985. Custody of three children born of the marriage was awarded to Sandra. Pursuant to the divorce decree, child support was set at $50.00 per child per month for the period from June 1985 to December 1985. In January of 1986, the child support was to automatically increase to $125.00 per child per month.

After the divorce on July 9, 1985, Charles brought a motion to amend so that his child support payments would not increase automatically on January 1, 1986. His motion was denied by the district court judge. The following year on July 28, 1986, the district court ordered that the proceeds from the sale of Charles' house be placed in trust as security for child support payments in an amount equal to one year's support. Upon sale of the house, $4,500.00 was placed in trust for the children's support. One year later, the trust account was depleted as Charles failed to make any additional child support payments voluntarily.

On November 20, 1987, Charles was brought to court on an Order to Show Cause by the Child Enforcement Agency. The Referee found Charles in contempt and ordered him placed in jail. However, upon being taken over to the Law Enforcement Center, Charles was able to pay his child support arrearages. Further, during the proceeding, the Referee found that Charles had gambled away insurance proceeds in the amount of $800.00, had jointly purchased a $1,600.00 bird with his girlfriend, and had been able to immediately post a $1,000.00 bond when he was involved in an aggravated assault incident.

Following several motions brought by Charles to amend his child support payments, Charles' child support payments were reduced to $100.00 per child per month effective March 1988. However, Charles failed to make his payments and, once again, was brought into court on an Order to Show Cause for contempt for failure to pay child support. The Referee found that the only support payment Charles had voluntarily paid since the divorce was on February 12, 1988, in the amount of $100.00. Further, testimony at the hearing revealed that at the time of their divorce, Charles had told Sandra that "it will be a battle to get me to pay my child support." Charles was found in contempt of court and, upon failing to pay his past due child support obligations, was sentenced to 30 days in jail.

This appeal centers around an insurance settlement Charles was negotiating with American Family Insurance as a result of a personal injury he sustained in an automobile accident. Sandra became aware of these negotiations when Fred Frohlich, an adjuster for American Family, contacted her concerning any pre-existing injuries that Charles may have had at the time of the accident. ¹

After learning of Charles' negotiations with American Family, Sandra brought a motion to provide security for support payments pursuant to Section 14-05-25, N.D.C.C. ² Sandra motioned the district court to enter an order directing that any monies received or payable to Charles as a result of the automobile accident be paid directly to the district court to be held as security for Charles' past and future child support payments. At the time of the October 13, 1988 motion, Charles was $3,425.00 in arrears on his child support obligation. ³

Resisting the motion, Charles testified that the reason he had not adequately fulfilled his child support obligation was simply because he was unable to pay. During 1986, he had invested in three businesses which, subsequently, turned out to be poor investments. ⁴ He further testified that since the beginning of 1988 to the time of the hearing October 24, 1988, he had paid himself only $1,000.00 with the majority of his living expenses coming from his girlfriend, who lived with him.

The district court granted Sandra's motion noting that, with regard to past arrearages, both parties on the record had stipulated "that once the defendant [Charles] had settled his personal injury action with the insurance company, he would become current on his child support arrearage." ⁵ With regard to future support payments, the court stated that Charles should post security for his future child support payments. The court recognized that, while Charles' businesses continued to fail, the needs of the children continued. Thus, the court ordered that once a sum certain was ready to be paid by American Family to Charles, American Family would initially pay Charles' reasonable attorney's fees with the remaining balance of the proceeds being deposited with the court. From this balance, Sandra would then receive the total sum of money owed her for past due child support payments. Finally, the court stated that after the past due arrearages had been paid out, the court would hold a hearing to determine what portion of the money would be held as security for Charles' future child support obligations.

The issue on appeal is whether the trial court erred in purporting to impose an equitable lien against any settlement or judgment Charles may receive as a result of the automobile accident in which he was involved. Charles contends that an equitable lien cannot attach to the proceeds of any settlement or judgment which he may receive. We disagree.

Charles relies upon Martian v. Martian, 399 N.W.2d 849 (N.D.1987), to support his position that ...