Tuhy v. Tuhy

• Decision Date: 22 February 2018
• Docket Number: No. 20170214,20170214
• Citation: 907 N.W.2d 351
• Parties: Samantha TUHY, Plaintiff and Appellee v. Jason C. TUHY, Defendant and Appellant
• Court: North Dakota Supreme Court

907 N.W.2d 351

Samantha TUHY, Plaintiff and Appellee

v.Jason C. TUHY, Defendant and Appellant

No. 20170214

Supreme Court of North Dakota.

Filed February 22, 2018

Gary D. Ramsey, Dickinson, ND, for plaintiff and appellee.

Jami L. Arnold, Dickinson, ND, for defendant and appellant.

McEvers, Justice.

[¶1] Jason Tuhy appeals from a divorce judgment distributing marital property and awarding spousal support and attorney’s fees. We conclude the district court’s distribution of the parties’ remainder interests in property and award of spousal support are not clearly erroneous. We further conclude the court did not abuse its discretion when awarding attorney’s fees. We affirm.

I

[¶2] Jason and Samantha Tuhy were married on June 6, 2003, and had three children during their marriage. The parties separated in February 2016. In May 2016, Samantha filed for a divorce. The parties agreed on all issues regarding parental responsibility and entered into a stipulated parenting plan in February 2017. The district court held a trial on February 8 and 13, 2017 on issues regarding division of property and debts, spousal support, and attorney’s fees.

[¶3] The district court entered a memorandum opinion in March 2017. Jason filed a request for reconsideration and clarification of calculations in regard to the property and debts of the parties, as well as calculations used for determining spousal support and child support. The request for reconsideration did not include a request to modify the attorney’s fees awarded in the court’s first memorandum opinion. The order modifying and clarifying the court’s calculations was entered March 31, 2017. A proposed judgment along with the supporting documents were filed on May 1, 2017 by Samantha. Jason filed an objection to the proposed findings and judgment. Jason did not include a challenge to the award of attorney’s fees. The court filed a letter to counsel responding to the objection and directing Samantha’s attorney to prepare the revised documents. The judgment was entered on May 4, 2017.

[¶4] The judgment ordered Jason to pay Samantha child support in the amount of $2,439 per month and spousal support in the amount of $1,000 per month for four years. The district court ordered Jason to pay Samantha attorney’s fees in the amount of $5,956, the amount reflected in the property and debt listing. The court separately designated the parties’ remainder interests in real property and awarded them to the party whose family controlled the life estate. To balance the disparity, the court awarded Jason a larger portion of his retirement. The court awarded Samantha one-half of Jason’s non-vested shares of Whiting Oil stock. The court further awarded Samantha 25 percent of Jason’s 401(k) equaling $36,274. The court ordered Jason to pay Samantha $158,782.61, concluding that amount is equal to one-half the difference in the disparity of the net amount received by the parties. The judgment indicated Jason was to pay $50,000 of that amount within 60 days of the entry of judgment, with the remainder due within 10 years at an interest rate of 6.5 percent on the unpaid balance.

[¶5] Jason then filed a motion for stay of judgment on June 2, 2017, requesting the conveyance of property and payments be stayed pending an appeal to this Court. Jason filed a notice of appeal on June 6, 2017. Samantha filed a response to the motion. On July 18, 2017, the court held a hearing on the motion and denied it on July 21, 2017.

II

[¶6] As an initial matter, Samantha filed a motion to strike the first issue on appeal of whether the district court erred in its division of property and debts because she believed Jason accepted substantial benefits under the judgment before it was entered. Samantha argued the court’s memorandum opinion awarded Jason the marital residence and the award was confirmed in the judgment. Jason then listed the marital residence for sale and Samantha signed the listing agreement. Samantha further argued Jason was awarded financial assets which he continues to have custody, control, and use of. Therefore, Samantha argued by Jason accepting substantial benefits, he waived his right to appeal. Although Samantha argues she is not attempting to have the entire case dismissed on appeal, we have said that spousal support and the division of property are interrelated and intertwined and often must be considered together. Paulson v. Paulson , 2010 ND 100, ¶ 9, 783 N.W.2d 262. Despite her attempt to narrow the issue, Samantha relies on cases requesting dismissal of the case on appeal.

[¶7] "A party moving to dismiss an appeal must clearly establish waiver of the right to appeal by the other party." Lizakowski v. Lizakowski , 2017 ND 91, ¶ 7, 893 N.W.2d 508 (quoting Sommers v. Sommers , 2003 ND 77, ¶ 5, 660 N.W.2d 586 ). "Generally, an individual that unconditionally, voluntarily, and consciously accepts a substantial benefit from a divorce judgment waives the right to appeal the judgment." Id.

This [C]ourt has sharply limited the rule in domestic cases to promote a strong policy in favor of reaching the merits of an appeal. Before a waiver of the right to appeal can be found, there must be an unconditional, voluntary, and conscious acceptance of a substantial benefit under the judgment. The party objecting to the appeal has the burden of showing the benefit accepted by the appealing party is one which the party would not be entitled to without the decree. There must be unusual circumstances, demonstrating prejudice to the movant, or a very clear intent on the part of the appealing party to accept the judgment and waive the right to appeal, to keep this [C]ourt from reaching the merits of the appeal.

Id. (quoting Sommers , at ¶ 5 ). Jason argues he should have been awarded more of the parties’ remainder interests. Samantha does not argue that he should have been awarded fewer remainder interests, or that she should have been awarded more of the remainder interests or the marital residence.

[¶8] Here, Samantha has not shown any unusual circumstances prejudicing her or a clear intent by Jason to accept the judgment and waive his right to appeal. We conclude Samantha has not clearly established Jason waived his right to appeal by accepting benefits of the divorce judgment, and deny Samantha’s motion to strike.

III

[¶9] Jason argues the district court erred by setting aside the parties’ remainder interests in real property when dividing the parties’ marital property and in awarding spousal support.

A

[¶10] Jason argues the district court erred by setting aside the parties’ remainder interests in real property when dividing the parties’ marital property.

The standard for reviewing marital property distributions is well-settled. "A district court’s distribution of marital property is treated as a finding of fact, which we review under the clearly erroneous standard of review." "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, after reviewing all of the evidence, we are left with a definite and firm conviction a mistake has been made." "This Court views the evidence in the light most favorable to the findings, and the district court’s findings of fact are presumptively correct."

A district court is required to make an equitable distribution of all the divorcing parties’ marital property and debts. "All property held by either party, whether held jointly or individually, is considered marital property, and the court must determine the total value of the marital property before making an equitable distribution." Marital property ordinarily is valued as of the date of trial. After the court values the property, it must then equitably divide the entire marital estate under the Ruff-Fischer guidelines, which require the court to consider the following factors in the division:

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.

McCarthy v. McCarthy , 2014 ND 234, ¶¶ 8–9, 856 N.W.2d 762 (citations omitted). "Under North Dakota law, it is well-established that a property distribution does not need to be equal to be equitable, but a substantial disparity must be explained so as to provide some indication of the rationale of the [district] court in distributing the property." Id. at ¶ 13 (citations and quotation omitted). "[T]he length of the marriage is relevant to the distribution of gifts and inherited property as part of the ‘equitable’ division of the marital estate." Bladow v. Bladow , 2003 ND 123, ¶ 8, 665 N.W.2d 724. "In general, a lengthy marriage supports an equal division of all marital assets." Id.

[¶11] Here, Samantha has a remainder interest in four properties, subject to her parents’ life estates. Jason has a remainder interest in two properties, along with his siblings, subject to his parents’ life estates. Jason argues the district court set aside the remainder interests in real property when dividing the marital property. However, upon reviewing the record, the court included all the property as marital property, but awarded the remainder interests in real property to the party in which the origin of the property belonged. See Bladow , 2003 ND 123, ¶ 8, 665 N.W.2d 724 (concluding the origin of the property is a factor to consider under the Ruff-Fischer guidelines).

[¶12] The district court indicated it relied on its analysis of the Ruff-Fischer guidelines in distributing property. The court relied on the following: (1) the interests came from their respective parents; (2) the acquisition of such interests bears no relationship to the...