Brew v. Brew

903 N.W.2d 72

Shawn D. BREW, Plaintiff and Appellant

v.Jennifer E. BREW, Defendant and Appellee

No. 20170073

Supreme Court of North Dakota.

Filed October 17, 2017

Dennis W. Lindquist, Dickinson, N.D., for plaintiff and appellant.

Patricia E. Garrity, Bismarck, N.D., for defendant and appellee.

McEvers, Justice.

[¶ 1] Shawn Brew appeals from a judgment granting him a divorce from Jennifer Brew, distributing their marital property, and ordering him to pay child support. Shawn Brew argues the district court's property distribution is inequitable, the court improperly calculated his child support obligation, and the court erred in ordering him to pay attorney's fees. We affirm.

I

[¶ 2] Shawn and Jennifer Brew were married in July 1997. They have two children together. The older child was born in 1998 and was still a minor at the time of trial. They owned a farming and ranching operation and a trucking business.

[¶ 3] In September 2015, Shawn Brew sued Jennifer Brew for divorce. In May 2016, Jennifer Brew moved to compel discovery, claiming she had made numerous attempts to get Shawn Brew to respond to interrogatories and demands for production of certain documents before seeking court intervention. The district court granted Jennifer Brew's motion to compel and ordered Shawn Brew to provide Jennifer Brew with certain requested documents. The court also ordered Shawn Brew to pay Jennifer Brew $500 in attorney's fees under N.D.R.Civ.P. 37(a)(5)(A) for failing to timely provide discovery responses.

[¶ 4] On August 7, 2016, Shawn Brew filed a pre-trial statement and requested the court award equal residential responsibility of the children. On August 8, 2016, a pretrial conference was held. On August 15, 2016, Jennifer Brew moved to bifurcate the issue of primary residential responsibility, claiming Shawn Brew disclosed for the first time at the pretrial conference that he intended to contest primary residential responsibility of the children and no discovery about the issue had been done. On August 16, 2016, the parties filed a stipulation, agreeing Jennifer Brew would have primary residential responsibility and decision-making authority of the children. A trial was held on the remaining issues, including property distribution, spousal support, and child support.

[¶ 5] The district court granted the parties a divorce. The court distributed the marital property, including 603 acres of farmland, and ordered Shawn Brew to receive a net award of $660,886 and Jennifer Brew to receive a net award of $732,258. The court awarded primary residential responsibility of the parties' children to Jennifer Brew and ordered Shawn Brew to pay $2,998 per month in child support for two children, which would be reduced to $1,949 per month after the older child turns eighteen or is no longer attending high school. The court found Jennifer Brew was in need of spousal support but Shawn Brew did not have the ability to pay, and the court reserved jurisdiction to potentially award spousal support in the future. The court ordered Shawn Brew to pay $5,000 in attorney's fees.

[¶ 6] Shawn Brew filed an "Opposition to Court's Property Distribution," arguing the property was not properly distributed and requesting the court reconsider its distribution of the farmland. The court treated Shawn Brew's filing as a motion to reconsider and denied the motion.

II

[¶ 7] Shawn Brew argues the district court erred in distributing the marital property. He claims the court relied on an unwarranted presumption and the distribution was not equitable.

A

[¶ 8] Shawn Brew claims the district court relied on an unwarranted presumption when it divided the parties' farmland. He contends the court announced at a pretrial conference that there was a presumption Jennifer Brew should be awarded most of the farmland because the land had been in her family for years and the court placed a burden of proof on him to rebut that presumption.

[¶ 9] Shawn Brew quoted portions of a transcript for a pretrial conference in his brief and included a page from the transcript in his appendix in support of his argument that the district court relied on a presumption. The transcript is not included in the record. Parties may only include items in the appendix that are part of the record. N.D.R.App.P. 30(a)(1). This Court will not consider documents in an appendix that are not in the certified record. Ihli v. Lazzaretto, 2015 ND 151, ¶ 21, 864 N.W.2d 483 ; State v. Williams, 2015 ND 297, ¶ 11, 873 N.W.2d 13. The appellant assumes the consequences and risks of failing to file a transcript. Cullen v. Williams Cty., 446 N.W.2d 250, 252 (N.D. 1989).

[¶ 10] Jennifer Brew moved to strike the parts of Shawn Brew's brief and appendix referring to the pretrial conference transcript, and she requested attorney's fees. This Court has discretion in deciding whether to administer sanctions for failing to comply with the Rules of Appellate Procedure. N.D.R.App.P. 13 ; Ihli, 2015 ND 151, ¶ 21, 864 N.W.2d 483. We grant Jennifer Brew's motion to strike, and we will not consider the documents in the appendix that are not included in the record or Shawn Brew's references to those documents, but decline to impose sanctions.

[¶ 11] "When the record does not allow for intelligent and meaningful review of an alleged error, the appellant has not carried the burden of demonstrating reversible error." Holden v. Holden, 2007 ND 29, ¶ 7, 728 N.W.2d 312 (quoting Linrud v. Linrud, 552 N.W.2d 342, 345 (N.D. 1996) ). Without the transcript of the pretrial conference there is no evidence in the record the district court relied on an improper presumption in distributing the farmland.

B

[¶ 12] Shawn Brew argues the property distribution is inequitable because Jennifer Brew received a net award worth $71,372 more than the property he was awarded. He contends the court erred by finding the farmland the parties purchased from Jennifer Brew's father was a gift and awarding Jennifer Brew 447 of the 603 acres of farmland.

[¶ 13] A district court's property division is treated as a finding of fact, which is reviewed under the clearly erroneous standard of review. Gabaldon-Cochran v. Cochran, 2015 ND 214, ¶ 5, 868 N.W.2d 501. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, 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. Id."The district court's choice between two permissible views of the evidence is not clearly erroneous." Rebel v. Rebel, 2016 ND 144, ¶ 9, 882 N.W.2d 256.

[¶ 14] When a divorce is granted, the district court is required to make an equitable distribution of the parties' assets and debts, whether held jointly or individually. N.D.C.C. § 14-05-24(1) ; Allmon v. Allmon, 2017 ND 122, ¶ 7, 894 N.W.2d 869. The court must apply the Ruff - Fischer guidelines in dividing the marital property and consider the following factors:

[T]he 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. The trial court is not required to make specific findings, but it must specify a rationale for its determination.

Allmon, at ¶ 7 (quoting Rebel v. Rebel, 2013 ND 116, ¶ 7, 833 N.W.2d 442 ).

[¶ 15] A property division does not need to be equal to be equitable, but a substantial disparity must be explained. Gabaldon-Cochran, 2015 ND 214, ¶ 7, 868 N.W.2d 501. A long-term marriage generally supports an equal property division. Rebel, 2016 ND 144, ¶ 8, 882 N.W.2d 256. "There is no set formula or method for distributing marital property; rather, an equitable property distribution is based on the particular circumstances of each case." Weigel v. Weigel, 2015 ND 270, ¶ 10, 871 N.W.2d 810. Economic fault and dissipation of assets are relevant factors the court may consider and are grounds for an unequal distribution. Allmon, 2017 ND 122, ¶ 8, 894 N.W.2d 869.

[¶ 16] The district court included all of the parties' assets and debts in the marital estate and made findings about the Ruff - Fischer factors. The court found the marriage was a long-term marriage, Shawn Brew is a farmer and operates a trucking business, and Jennifer Brew works for the county and part-time for a sewing business. The court found both parties are less financially secure since the separation, their financial needs are similar, and both parties are in good health. The court allocated $909,544 in assets and $248,658 in debt to Shawn Brew, for a net award of $660,886. The court allocated $870,917 in assets and $138,659 in debt to Jennifer Brew, for a net award of $732,258.

[¶ 17] The court considered whether there was evidence to support a deviation from an equal division and explained:

Perhaps the most significant evidence in support of a deviation from an equal division is the fact that substantially all of the agricultural real estate owned by the parties came by way of a purchase of 603 acres of farmland, which has been in Jennifer's family now for three generations. Those 603 acres were purchased in 1999 from Jennifer's father for $100,000. The parties have essentially stipulated that such farmland is now worth more than 10 times that figure. Jennifer testified, and Shawn did not dispute, that the purchase price was extremely favorable to the parties as buyers at that time of the purchase. While there is no evidence in the record of the appraised value of that farmland in 1999, the Court is satisfied and finds that the purchase price was significantly below then prevailing prices.

The court also found the parties' marital home was gifted to them by ...