Ulsaker v. White

2009 ND 18, 760 N.W.2d 82, 2009 N.D. LEXIS 2, 2009 WL 249252
CourtNorth Dakota Supreme Court
DecidedFebruary 3, 2009
Docket20080093
StatusPublished
Cited by25 cases

This text of 2009 ND 18 (Ulsaker v. White) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ulsaker v. White, 2009 ND 18, 760 N.W.2d 82, 2009 N.D. LEXIS 2, 2009 WL 249252 (N.D. 2009).

Opinions

CROTHERS, Justice.

[¶ 1] Larry Ulsaker appeals and C. True Bright White cross-appeals from the district court’s judgment dividing the parties’ marital property, awarding White a cash payment and denying White’s request for attorney’s fees. We affirm the district court’s property distribution award, cash payment schedule and denial of attorney’s fees.

I

[¶ 2] This case is on appeal for the second time. A full statement of the facts can be found at Ulsaker v. White, 2006 ND 133, 717 N.W.2d 567. Ulsaker and White were married in October 1988, and Ulsaker filed for divorce in June 2003. Both [84]*84Ulsaker and White were previously married, and each has an advanced degree. The parties did not have a prenuptial agreement, but during the marriage they kept their assets separate except for one joint checking account. Prior to the marriage, Ulsaker owned (a) 240 acres in Wilkin County, Minnesota, (b) 137 acres of farmland in Ottertail County, Minnesota, (c) a home in Columbia, Missouri, and (d) significant savings in his investment account. White also brought property into the marriage, including (a) 80 acres in Stillwater, Oklahoma, (b) property in Buena Vista, Colorado, and (c) a house in Denver which she sold and invested the proceeds in annuities.

[¶ 3] During the marriage, the parties purchased additional property, including the Buckhorn Ranch located in Medora. Ulsaker inherited assets from his mother, Mabel, while the parties were married.

[¶ 4] The first trial was held in February 2004 and resulted in an absolute decree of divorce and distribution of real property in Battle Lake, Minnesota, to Ulsaker. On May 12, 2005, the district court entered Supplemental Findings of Fact, Conclusions of Law and Order for Judgment of Divorce, awarding certain real and personal property to each party and ordering Ulsaker to pay White a $150,000 cash payment within sixty days of entry of the judgment and $1,000 per month spousal support until White dies or remarries. White appealed the district court’s judgment. In June 2006, this Court remanded the case for a new trial concluding the district court misapplied the law and failed to explain the substantial disparity in the distribution of the marital property.

[¶ 5] At the time of the first trial in February 2004, Ulsaker’s prime account had a balance of $2,594,767. Three years later, at the second trial in December 2007, Ulsaker’s prime account had been reduced by $1,765,571, leaving a balance of $828,696. Since the first trial, each party has managed their assets independently and has purchased additional property. White purchased additional real estate in Dickinson, and Ulsaker made gifts to his children and grandchildren, traveled extensively, bought expensive coins for his coin collection and built a log cabin on the Buckhorn ranch.

[¶ 6] After the second trial, the district court determined the parties’ marital estate totaled $5,849,207. The court awarded Ulsaker property worth $4,096,760 and White items totaling $1,752,447. In order to equalize the division of the marital estate, the court ordered Ulsaker to pay $1,170,000 to White. The district court denied White’s request for spousal support, attorney’s fees, and costs and disbursements.

II

[¶ 7] Ulsaker argues the district court clearly erred in distributing the parties’ marital property equally. Ulsaker claims the district court erred in finding that the length of the marriage and that his dissipation of marital assets favored an equal distribution of the marital property.

[¶ 8] Section 14-05-24(1), N.D.C.C., requires the district court to make an equitable distribution of the property of the divorcing parties. “We review a district court’s determination regarding the distribution of property as a finding of fact, and we will not reverse unless the district court’s findings are clearly erroneous.” Wold v. Wold, 2008 ND 14, ¶ 6, 744 N.W.2d 541 (quoting Donlin v. Donlin, 2007 ND 5, ¶ 10, 725 N.W.2d 905).

“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, [85]*85or if, although there is some evidence to support it, on the entire evidence the reviewing court is left with a definite and firm conviction a mistake has been made.”

Lorenz v. Lorenz, 2007 ND 49, ¶ 5, 729 N.W.2d 692 (citing Kostelecky v. Kostelecky, 2006 ND 120, ¶ 8, 714 N.W.2d 845).

[¶ 9] “We have said that a property division need not be equal to be equitable, but a substantial disparity must be explained.” Dvorak v. Dvorak, 2006 ND 171, ¶ 19, 719 N.W.2d 362 (citing Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 23, 673 N.W.2d 601). “[A] trial court must start with a presumption that all property held by either party whether held jointly or individually is to be considered marital property. The trial court must then determine the total value of the marital estate in order to make an equitable division of property.” Hitz v. Hitz, 2008 ND 58, ¶ 11, 746 N.W.2d 732 (quoting Ulsaker, 2006 ND 133, ¶ 13, 717 N.W.2d 567). When the court distributes the marital estate, it must consider the Ruff-Fischer guidelines. Wagner v. Wagner, 2007 ND 101, ¶ 9, 733 N.W.2d 593; Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966); Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952). The Ruff-Fischer guidelines require the court to consider:

“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. The trial court is not required to make specific findings, but it must specify a rationale for its determination.”

Hitz, at ¶ 11 (quoting Bladow v. Bladow, 2003 ND 123, ¶ 7, 665 N.W.2d 724). “The district court is not required to make specific findings on each Ruff-Fischer factor, but must explain the rationale for its decision.” Wagner, at ¶ 10.

[¶ 10] The district court made findings on each Ruff-Fischer factor. The court found the factors favoring an unequal distribution of the marital estate in Ulsaker’s favor included the origin of the property, the conduct of the parties during the marriage, gifts to White, health and physical condition and the tax consequences. The district court also found several factors favoring White receiving more than fifty percent of the marital estate, including the duration of the marriage, economic fault and dissipation of assets in violation of the restraining provisions of the summons, ranch appreciation, financial circumstances as shown by the property owned and its income producing capacity and the earning ability of the parties. The court found the factors favoring neither party included the age of the parties, the non-economic fault and the parties’ station in life.

[¶ 11] After making findings on each Ruff-Fischer factor, the district court concluded that the Ruff-Fischer

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Bluebook (online)
2009 ND 18, 760 N.W.2d 82, 2009 N.D. LEXIS 2, 2009 WL 249252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ulsaker-v-white-nd-2009.