Young v. Young

1998 ND 83, 578 N.W.2d 111, 1998 N.D. LEXIS 96, 1998 WL 203097
CourtNorth Dakota Supreme Court
DecidedApril 28, 1998
DocketCivil 970251
StatusPublished
Cited by39 cases

This text of 1998 ND 83 (Young v. Young) 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
Young v. Young, 1998 ND 83, 578 N.W.2d 111, 1998 N.D. LEXIS 96, 1998 WL 203097 (N.D. 1998).

Opinions

MARING, Justice.

[¶ 1] Dorothy Young appeals from a judgment dissolving her marriage with Gene Young, dividing the marital property, and awarding spousal support. We hold the trial court’s award of spousal support is not clearly erroneous and the trial court did not abuse its discretion in denying Dorothy’s request for fees and costs. We further hold the trial court’s valuation of the marital property is not clearly erroneous, but that its division of the marital property is clearly erroneous. We, therefore, affirm in part, reverse in part and remand.

[¶ 2] The Youngs were married in 1975. This was a second marriage for both of them and, although they had no children of this marriage, Dorothy’s daughter from her previous marriage and Gene’s son from his previous marriage lived with them until their graduation from high school. Their family resided on a farm near Edgeley where Gene made a living as a farmer and rancher.

[¶ 3] The parties separated in November 1995. Dorothy moved to Bismarck, accepted employment as a nurse’s assistant, and filed for divorce. After a hearing, the trial court granted a divorce on the grounds of irreconcilable differences, divided the marital property, and awarded Dorothy spousal support of $150 per month for five years.

[¶ 4] Dorothy asserts the court erred in valuing the marital real estate. The trial court’s valuation of property is a finding of fact which will be reversed on appeal only if it is clearly erroneous. Kluck v. Kluck, 1997 ND 41, ¶ 25, 561 N.W.2d 263. When the trial court’s valuation is within the range of evidence and we are not left with a definite [113]*113and firm conviction the court has made a mistake, we will not set it aside. Hendrickson v. Hendrickson, 553 N.W.2d 215, 219-220 (N.D.1996).

[¶ 5] Gene testified the real estate, mostly farmland, had a total value of $235,428. Dorothy hired an expert appraiser who valued the real estate at $288,260. The trial court found the value of the property was $260,000. Dorothy complains the trial eourt gave equal-weight to Gene’s testimony and the testimony of her expert appraiser.

[¶ 6] Ordinarily, the owner of real property is presumed to have special knowledge of its value and may testify thereto without any further qualification. Anderson v. Anderson, 368 N.W.2d 566, 569 (N.D.1985). The trial eourt is entitled to weigh and evaluate expert testimony, and the court does not have to accept expert opinion even if it is undisputed. Matter of Estate of Aune, 478 N.W.2d 561, 564 (N.D.1991). The trial court can best evaluate testimony because it observes the demeanor and credibility of the witnesses, and we do not substitute our judgment for that of the trial eourt when reasonable evidence supports the findings. Fenske v. Fenske, 542 N.W.2d 98, 102 (N.D.1996). The trial court’s valuation was within the range of the evidence, and we are not left with a firm and definite conviction the trial court made a mistake in valuing the real estate.

[¶ 7] Dorothy argues the eourt erred in awarding her spousal support of only $150 per month for five years. The court, within its discretion, can award either party spousal support under N.D.C.C. § 14-05-24. An award of spousal support must be made in light of the disadvantaged spouse’s needs and the supporting spouse’s needs and ability to pay. Mahoney v. Mahoney, 1997 ND 149, ¶ 28, 567 N.W.2d 206. Determinations relevant to spousal support awards are findings of fact which will not be disturbed on appeal unless clearly erroneous. Beals v. Beals, 517 N.W.2d 413, 416 (N.D.1994). The trial court found the parties have approximately equal annual incomes, but Dorothy “has need of support to assist her due to her reduced vision until she retires.” Dorothy provides no analysis or citation of authority,

and she makes no suggestion as to what would be a more appropriate spousal support award. We are not left with a firm and definite conviction the trial court made a mistake in its award of spousal support.

[¶ 8] Dorothy argues the trial court erred in denying her request for attorney fees, expert witness fees, and costs. An award of expert witness fees and costs is within the sound discretion of the trial court and will not be disturbed on appeal unless an abuse of discretion is shown. N.D.C.C. §§ 28-26-06(5) and 28-26-10; Patterson v. Hutchens, 529 N.W.2d 561 (N.D.1995). An award of attorney fees in a divorce action under N.D.C.C. § 14-05-23, is also within the sound discretion of the trial court and will not be set aside absent an abuse of discretion. Bagan v. Bagan, 382 N.W.2d 645 (N.D.1986); Heller v. Heller, 367 N.W.2d 179 (N.D.1985). The trial court found these parties have similar annual incomes, but awarded Dorothy $150 per month rehabilitative spousal support because she has a vision disability and cannot retire for three years. Under these circumstances, we are not convinced the trial court abused its discretion in refusing to award- Dorothy witness fees, costs, or attorney fees.

[¶ 9] Dorothy asserts the trial court’s division of property is clearly erroneous. In dividing the property, the trial court first determined Gene brought into the marriage a farmhouse, machinery, livestock, life insurance policies, cash, crops, and 560 acres of farmland, with a current net value of $140,005. The court also determined Dorothy brought into the marriage a checking account, an automobile, and household furnishings, valued at $22,500. The court awarded to each party specific property equivalent to the value of the premarital property that the court determined each had brought into the marriage.

[¶ 10] Section 14-05-24, N.D.C.C., requires the court to make an equitable distribution of the marital estate. Hendrickson, 553 N.W.2d at 220. “ 7A]ll of the real and personal property accumulated by the parties ..., regardless of the source’

[114]*114must be included in the marital estate to be divided by the trial court." Glander v. Glander, 1997 ND 192, ¶ 10, 569 N.W.2d 262 (quoting Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 621 (N.D.1994) (emphasis in original)). We have repeatedly held “[s]eparate property, whether inherited or otherwise, must initially be included in the marital estate.” Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 621 (N.D.1994) (citations omitted). See also Grinaker v. Grinaker, 558 N.W.2d 204, 208 (N.D.1996); van Oosting v. van Oosting, 521 N.W.2d 93, 96 (N.D.1994). We have held a trial court can only apply the Ruff-Fischer guidelines after all the assets are included in the marital estate. Gaulrapp, 510 N.W.2d at 621 (emphasis ours). The origin of the property is only one factor to consider under the Ruff-Fischer guidelines, even if thé property was acquired before the marriage or inherited. Winter v. Winter, 338 N.W.2d 819, 822 (N.D.1983). We have never held that property brought into a marriage or acquired by gift or inheritance by one spouse, be irrevocably set aside to that spouse. Grinaker, 553 N.W.2d at 208. As we held in Gaulrapp,

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Bluebook (online)
1998 ND 83, 578 N.W.2d 111, 1998 N.D. LEXIS 96, 1998 WL 203097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-young-nd-1998.