IN THE SUPREME COURT OF THE
STATE OF NORTH DAKOTA
| Carl Michael Hoverson, | ) | |||||||
| ) | ||||||||
| Plaintiff, Appellee | ) | |||||||
| and Cross-Appellant, | ) | APPELLANT'S REPLY BRIEF | ||||||
| ) | ||||||||
| vs. | ) | Supreme Court File No. 20120281 | ||||||
| ) | ||||||||
| Sandra Morten Hoverson, | ) | |||||||
| ) | ||||||||
| Defendant, Appellant | ) | |||||||
| and Cross-Appellee. | ) | |||||||
Appeal from Memorandum Decision, Findings of Fact, Conclusions of Law, Order for Judgment and Judgment and Decree of Divorce dated April 30, 2012 and Judgment and Decree of Divorce dated May 1, 2012, by the Grand Forks County District Court, Northeast Central Judicial District, the Honorable Sonja Clapp, presiding
| Robert J. Schultz, ND ID #04535 |
| Conmy Feste Ltd. |
| 406 Main Avenue, Suite 200 |
| P.O. Box 2686 |
| Fargo, North Dakota 58108-2686 |
| Telephone: (701) 293-9911 |
| Facsimile: (701) 293-3133 |
| ATTORNEYS FOR DEFENDANT/APPELLANT/CROSS-APPELLEE |
TABLE OF CONTENTS
PAGE
STATEMENT OF THE ISSUES 1
PARAGRAPH
LAW AND ARGUMENT
I. Did the Trial Court Abuse its Discretion in Ordering Carl to Pay Sandra's Attorney's Fees and Costs? 1
CONCLUSION 9
TABLE OF AUTHORITIES
| CASES: | |
| PARAGRAPH | |
| Heley v. Heley, 506 N.W.2d 715, 722 (N.D.1993) | 2 |
| Lee v. Lee, 2005 ND 129, ¶ 16, 699 N.W.2d 842 | 2 |
| Zuger v. Zuger, 1997 ND 97, ¶¶ 8, 12, 563 N.W.2d 804 | 2, 3 |
| Bagan v. Bagan, 382 N.W.2d 645, 646, 649 (N.D.1986) | 2, 4, 5 |
| Heller v. Heller, 367 N.W.2d 179, 184 (N.D.1985) | 2, 6 |
| STATUTES: | |
| N.D.C.C. § 14-05-23 | 1 |
STATEMENT OF THE ISSUES
I. Did the Trial Court Abuse its Discretion in Ordering Carl to Pay Sandra's Attorney's Fees and Costs?
LAW AND ARGUMENT
I. The Trial Court Did Not Abuse its Discretion in Ordering Carl to Pay Sandra's Attorney's Fees and Costs.
[¶ 1] In North Dakota, the trial court has discretion to grant an award of attorney's fees pursuant to section 14-05-23 of the North Dakota Century Code. The statute provides as follows:
During any time in which an action for separation or divorce is pending, the court, upon application of a party, may issue an order requiring a party to pay such support as may be necessary for the support of a party and minor children of the parties and for the payment of attorney's fees.
[¶ 2] The principal consideration is each party's ability to pay. Heley v. Heley, 506 N.W.2d 715, 722 (N.D.1993); Lee v. Lee, 2005 ND 129, ¶16, 699 N.W.2d 842. An award of attorney's fees is appropriate when there is a significant disparity of income. Zuger v. Zuger, 1997 ND 97, ¶8, 563 N.W.2d 804; Bagan v. Bagan, 382 N.W.2d 645, 646 (N.D.1986); Heller v. Heller, 367 N.W.2d 179, 184 (N.D.1985).
[¶ 3] In Zuger, the wife received a share of the value of the husband's law practice and was to receive half of the $936,000 principal of the husband's trust when it became available to him. 1997 ND 97 ¶12. In light of the fact that the husband earned six to twelve times more than the wife, the trial court awarded the wife attorney's fees despite the husband's contention that the wife's share of the property was sufficient to pay her attorney's fees. Id. at ¶8. On appeal, the North Dakota Supreme Court affirmed, noting that the significant disparity in the parties' incomes supported the trial court's award of attorney's fees. Id.
[¶ 4] In Bagan, the trial court awarded the wife attorney's fees and costs. On appeal, the North Dakota Supreme Court affirmed stating as follows:
The trial court concluded that Steven's attorney's fees were paid to an unknown extent from earnings of Steven's professional corporation. This reduced the value of the corporation for purposes of the property division. The trial court thus determined that Diana indirectly paid for part of Steven's attorney's fees. The trial court also noted that unlike Steven, Diana would have no income aside from her cash property settlement award.
The trial court's analysis demonstrates a proper exercise of its discretion in awarding Diana a portion of her attorney's and expert witness' fees.
Id. at 649.
[¶ 5] As in Bagan, Carl's attorney's fees were paid in full to an unknown extent from earnings from the marital estate. This reduced the value of the marital estate for purposes of property division. As in Bagan, Sandra has indirectly paid for part of Carl's attorney's fees and Sandra has no earned income to pay her own attorney's fees.
[¶ 6] In Heller, the husband earned twice as much as the wife, but the trial court denied the wife's request for attorney's fees. 367 N.W.2d at 184. The North Dakota Supreme Court remanded the case for reconsideration of the attorney's fees, pointing in part to the significant disparity of income. Id.
[¶ 7] In this case, there is an extreme disparity in the parties' incomes. The trial court found that Carl's adjusted gross monthly income, based on a five year average, was $164,884 per month. (App. 97). Sandra had no earned income at the time of the divorce. (App. 97). Furthermore, the trial court noted that Carl was awarded approximately 80% of the marital assets, with Sandra receiving approximately 20% of the marital estate. (App. 97). Additionally, the court noted that her earning ability will continue to be significantly less than Carl's. (App. 97). The district court noted, after considering this property division, "due to the disparity in the parties' incomes, this court feels compelled to award Sandra attorney's fees." (App. 97).
[¶ 8] The trial court's decision ordering that Carl pay her attorney's fees and costs is fair and reasonable. Carl's contention that Sandra failed to present evidencing regarding attorney's fees is without merit. Sandra testified concerning the amount of attorney's fees she anticipated incurring in this case. (12/15/11 Trans. P. 110, ll. 2-25). It was not an abuse of discretion for the district court to order that Carl must pay Sandra's attorney's fees.
CONCLUSION
[¶ 9] Appellant, Sandra Morten Hoverson, respectfully requests that the trial court's award of attorney's fees be, in all respects, affirmed. Sandra also requests that she be granted the costs and attorney's fees she has incurred in this appeal.
Dated this 1st day of November, 2012.
| /s/ Robert J. Schultz | |||||||
| Robert J. Schultz, ND ID #04535 | |||||||
| Conmy Feste Ltd. | |||||||
| 406 Main Avenue, Suite 200 | |||||||
| P.O. Box 2686 | |||||||
| Fargo, ND 58108-2686 | |||||||
| Telephone (701) 293-9911 | |||||||
| ATTORNEYS FOR | |||||||
| RESPONDENT/APPELLANT | |||||||