Werven v. Werven

• Decision Date: 15 March 2016
• Docket Number: No. 20150201.,20150201.
• Citation: 877 N.W.2d 9
• Parties: Laurita A. WERVEN, Plaintiff and Appellee v. Ralph M. WERVEN, Defendant and Appellant.
• Court: North Dakota Supreme Court

877 N.W.2d 9

Laurita A. WERVEN, Plaintiff and Appellee

v.Ralph M. WERVEN, Defendant and Appellant.

No. 20150201.

Supreme Court of North Dakota.

March 15, 2016.

Tracy L. Laaveg (argued), Park River, N.D., and Cameron D. Sillers (appeared), Langdon, N.D., for plaintiff and appellee.

Deanna F. Longtin, Cavalier, N.D., for defendant and appellant.

KAPSNER

, Justice.

[¶ 1] Ralph Werven appeals from a divorce judgment dividing the marital estate and awarding Laurita Werven spousal support. Ralph Werven also appeals from post-judgment orders denying his motion to alter or amend the judgment or for a new trial, denying his motion to stay the judgment, and holding him in contempt. We affirm the divorce judgment, the order denying the motion to alter or amend the judgment or for a new trial, and the order denying the motion to stay the judgment. The order holding Ralph Werven in contempt is affirmed as modified.

I

[¶ 2] Ralph Werven and Laurita Werven were married in 1993 and divorced in 2014. At trial, Ralph Werven was fifty-five years old and was a fifty percent owner and vice president of Grain Systems Repair, Inc. ("GSR") and earned approximately $64,000 annually. Laurita Werven was fifty-three years old, suffered from knee and back problems, and was not employed outside the home since 2002. The district court awarded Ralph Werven $657,748 in assets and $641,997 in debt, and awarded Laurita Werven $67,075 in assets and $30,360 in debt. Two specific items of property awarded to Laurita Werven were a parcel of real estate referred to as Parcel Three and a decal cutting machine she used to make custom vinyl decals for individuals and businesses. The court also awarded Laurita Werven $1,000 of spousal support per month until her 65th birthday, remarriage, cohabitation with another individual for longer than nine months, or the death of either herself or Ralph Werven, whichever occurs first.

[¶ 3] After the divorce judgment was entered, both parties filed post-judgment motions. Laurita Werven moved for an order to show cause against Ralph Werven for failure to pay spousal support on December 1, 2014, and for failing to convey Parcel Three and deliver the decal cutter.

[¶ 4] Ralph Werven filed a motion to alter or amend the judgment or for a new trial, requesting the court to reconsider its decisions on the property distributions and spousal support. He also moved to stay the judgment. In his affidavit supporting the motion, he stated that on the day after the trial ended, he was removed as an owner and vice president of GSR. He stated without his GSR salary, he no longer had the ability to pay spousal support. He stated he was unable to convey Parcel Three because his daughters were supposed to receive it under an earlier divorce judgment, and he could not deliver the decal cutter because it was owned by GSR.

[¶ 5] At a hearing on the motions in December 2014, Ralph Werven testified he was not removed from GSR. He testified GSR was struggling financially and he did not have the financial resources to take over GSR on his own. He testified he transferred his shares of stock and an interest in real property to the other owner of GSR. In exchange, the remaining owner of GSR agreed Ralph Werven would not be personally liable for any corporate debt. He also testified an upcoming shoulder surgery would further limit his ability to pay spousal support. The district court found Ralph Werven's transfer of his GSR stock was suspicious. At the conclusion of the hearing, the court ordered him to transfer the decal cutter and Parcel Three to Laurita Werven or he would be held in contempt. The court stated it would prepare a written order regarding spousal support following the hearing.

[¶ 6] In January 2015, Laurita Werven again moved for an order to show cause against Ralph Werven for failure to pay spousal support and failure to deliver the decal cutter. At a May 2015 hearing on the order to show cause, the district court indicated it failed to issue a written order after the hearing in December 2014. The court stated its intent was to deny Ralph Werven's post-judgment motions after the December hearing. The court heard testimony from Ralph Werven regarding his inability to pay spousal support and found his testimony was not credible. The court found he voluntarily transferred his GSR stock and deliberately failed to pay spousal support since entry of the divorce judgment. The court held him in contempt for failing to pay spousal support and failing to transfer the decal cutter to Laurita Werven. He was ordered to pay the overdue spousal support and deliver the decal cutter before June 2, 2015, or he would be arrested and incarcerated. The court also issued an order denying Ralph Werven's motion to alter or amend the judgment or for a new trial and motion to stay the judgment. The parties subsequently agreed Ralph Werven would pay $2,500 to Laurita Werven for the value of the decal cutter.

II

[¶ 7] As an initial matter, we address Laurita Werven's contention that Ralph Werven's appeal of the divorce judgment is untimely and not properly before this Court.

[¶ 8] The time for filing an appeal is governed by N.D.R.App.P. 4(a)(1)

. Under N.D.R.App.P. 4(a)(1), a party has 60 days from service of notice of entry of the judgment to file an appeal. Under N.D.R.App.P. 4(a)(3)(A), if a party timely files a post-judgment motion under N.D.R.Civ.P. 52(b), 59, or 60, "the full time to file an appeal runs for all parties from service of notice of the entry of the order disposing of the last such remaining motion." See also N.D.R.App.P. 4, Explanatory Note ("a post-judgment motion under any of the listed rules, whether titled as a motion to alter, amend, or vacate, for relief from judgment, or for reconsideration, will toll the time period to file a notice of appeal"). A post-judgment motion is timely if it is filed within 28 days after notice of entry of the judgment. See N.D.R.App.P. 4(a)(3)(A)(vi)

; N.D.R.Civ.P. 52(b), 59(j).

[¶ 9] The notice of entry of the divorce judgment was served on November 19, 2014. Ralph Werven's post-trial motion to alter or amend the judgment or for a new trial, requesting the court to reconsider its decisions on the property distributions and spousal support, was filed on December 4, 2014. The post-judgment motion was filed within 28 days of notice of entry of judgment, so the time to file an appeal from the divorce judgment was tolled until the motion was disposed of. The notice of entry of the order disposing Ralph Werven's post-judgment motion was served on May 12, 2015, and the notice of appeal was filed on July 9, 2015. We conclude Ralph Werven's appeal of the divorce judgment and post-judgment motion is timely.

III

[¶ 10] Ralph Werven argues the district court erred in its property distributions. He argues the court erred in awarding Parcel Three and the decal cutter to Laurita Werven.

[¶ 11] A district court's property distribution is treated as a finding of fact subject to the clearly erroneous standard of review. Kosobud v. Kosobud, 2012 ND 122, ¶ 6, 817 N.W.2d 384

. A finding is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if, based on the entire record, we are left with a definite and firm conviction a mistake has been made. Koble v. Koble, 2008 ND 11, ¶ 6, 743 N.W.2d 797.

A

[¶ 12] Ralph Werven argues the district court erred in awarding Parcel Three to Laurita Werven. He argues he should have been awarded Parcel Three because under an earlier divorce judgment entered in 1991, he was ordered to convey the property to his daughters and retain a life estate for himself. He failed to convey the property to his daughters after his divorce in 1991. In 2006, he conveyed Parcel Three to Laurita Werven and retained a life estate for himself. There is no evidence Ralph Werven's daughters sought to enforce the 1991 judgment. The record indicates Parcel Three was owned by Laurita Werven, subject to Ralph Werven's life estate. We conclude the district court's award of Parcel Three to Laurita Werven was not clearly erroneous.

B

[¶ 13] Ralph Werven argues the district court erred in awarding the decal cutter to Laurita Werven because it is owned by GSR. At the December 2014 and May 2015 post-judgment hearings, the court ordered him to deliver the decal cutter to Laurita Werven. After he was held in contempt for not paying spousal support and not delivering the decal cutter, the parties stipulated to a cash settlement, and Ralph Werven paid Laurita Werven $2,500 for the value of the decal cutter.

[¶ 14] All property owned by either party, whether jointly or individually, is considered marital property. Weigel v. Weigel, 2015 ND 270, ¶ 9, 871 N.W.2d 810

. As a corollary, property not owned by either party is not marital property. In cases where one spouse owns an interest in a corporation or other business entity, district courts generally value the business interest and include that value in the marital estate. See Nuveen v. Nuveen, 2011 ND 44, ¶ 7, 795 N.W.2d 308

; Sommers v. Sommers, 2003 ND 77, ¶ 9, 660 N.W.2d 586 ; Kluck v. Kluck, 1997 ND 41, ¶ 36, 561 N.W.2d 263.

[¶ 15] Here, the court valued Ralph Werven's interest in GSR and included it as part of the marital estate. The record indicates GSR owns the decal cutter. Laurita Werven testified the decal cutter was purchased by GSR, but she used it in the parties' home for many years. Laurita Werven had used the decal cutter to generate income in her signing business. The district court also acknowledged GSR's ownership of the decal cutter, but stated, "[t]here was no insistence that the decal machine could only be the corporation [']s, it was treated as a matter of personal property in the Werven household."

[¶ 16] In awarding the decal cutter to Laurita Werven, we conclude the court misapplied the law and erroneously treated the decal cutter as personal marital property and not as a business asset. However, this issue is now...