Christian v. Christian

20070053 Timothy Christian, Plaintiff and Appellant
v.
Diane Christian, Defendant and Appellee

Appeal from: District Court, South Central Judicial District, Burleigh County
Judge Bruce B. Haskell
Nature of Action: Divorce/Property Div./Alimony
Counsel:
Appellee: Sherry Mills Moore
Appellant: #David R. Bliss, L.L.C.
Term: 09/2007   Argument: 09/17/2007  2:45pm
ND cite: 2007 ND 196
NW cite: 742 N.W.2d 819

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. The trial court committed reversible error when it awarded Diane permanent spousal support.
A. The trial court incorrectly awarded Diane permanent spousal support in an attempt to equalize the parties' incomes when it should have adjusted the property division or awarded rehabilitative spousal support.
B. The trial court awarded Diane permanent spousal support even though Diane is able to maintain independent economic status.
C. The trial court awarded Diane permanent spousal support when Diane has and will have substantial retirement savings.
D.The trial court failed to account for an equitable sharing of the overall reduction of the parties' standard of living.
II. The trial court committed reversible error when it awarded $5,000 in attorneys fees to Diane.
A. The trial court's sole rationale that Diane is entitled to attorneys fees because Tim "filed first" is insufficient grounds upon which to base the award.
III. The trial court committed reversible error when it did not fulfill its mandate to consider and equitably distribute all the parties' property available for distribution without consideration of Diane's undisclosed $250,000 property.
A. Diane's $250,000 property, undisclosed by Diane, was not included by the trial court when it divided the parties' property.
B. Diane's disclosed Bowman County property was established at less than its fair market value, as mandated by law.
C. The parties' property settlement agreement was unconscionable and should be set aside.
D. The merger doctrine does not apply to an unconscionable property settlement agreement.
IV. The trial court clearly erred when it refused to amend or make additional findings under Rule 52.
A. New findings as to the existence and value of Diane's disclosed and undisclosed property could have resulted in an equitable distribution of property.
V. The trial court abused its discretion when it refused to grant Tim a new trial under Rule 59.
A. The trial court should have allowed a new trial in order to re-examine its property distribution, in light of Diane's nondisclosure of property.
B. A trial court's duty as to property settlement agreements extends to whether the agreement is unconscionable.
C. Under Rule 59(b)(6), Diane's omission of her interest in $250,000 worth of Bowman County land created an insufficiency of the evidence which prevented the trial court from an equitable division of the parties' property.
VI. The trial court abused its discretion when it refused to grant Tim relief from judgment under Rule 60.
A. Diane's concealment of her $250,000 Bowman County property interest induced Tim to enter into the parties' property settlement agreement.
B. A trial on the merits as to the parties' property division and retrial as to spousal support would fulfill the interests of justice as contemplated by Rule 60(b)(vi).

REPLY BRIEF ISSUES
I.THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT AWARDED DIANE PERMANENT SPOUSAL SUPPORT.
A.Diane misconstrues Tim's argument that the trial court attempted to equalize the parties' respective incomes.
B.Diane, who already enjoys independent economic status, should not have been awarded permanent spousal support by the trial court.
II.THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT AWARDED $5,000 IN ATTORNEYS FEES TO DIANE.
A.The trial court's sole rationale that Diane is entitled to attorneys fees because Tim "initiated the divorce" is insufficient grounds upon which to base the award.
III.THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO GRANT TIM A NEW TRIAL UNDER RULE 59.
A.The trial court should have allowed a new trial in order to re-examine its spousal support award and property distribution in light of Diane's nondisclosure of property.
B.A trial court's duty as to property settlement agreements extends to whether the agreement is unconscionable.
C.Under Rule 59(b), Diane's omission of her interest in $250,000 worth of Bowman County land created an irregularity of the evidence which prevented the trial court from an equitable division of the parties' property.
D.New findings as to the existence and value of Diane's disclosed and undisclosed property could have resulted in an equitable distribution of property.


Appellee's Statement of the Issues:
A. SPOUSAL SUPPORT
1. Did the court err by setting permanent spousal support based upon the Ruff-Fisher factors?
2. By setting permanent spousal support based upon the Ruff-Fisher factors rather than rejecting the parties' property agreement and awarding Diane additional property did the Court err?
3. Was the trial court prohibited as a matter of law from awarding permanent support if Diane could maintain an independent economic status?
4. Did an award of the retirement assets to Tim, pursuant to the parties' agreement, preclude the court from awarding permanent spousal support?
5. Was the court barred from awarding Diane spousal support when Tim has an earning ability which permits him to meet his own expenses, even living in Chicago, and pay the support ordered, after considering the relative costs of living of each party?
B. ATTORNEY'S FEES AND COSTS
1. If an award of attorney's fees is supported by the facts, the law, and the evidence, is it an abuse of discretion because the evidence was submitted by testimony and documents rather than by affidavit?
C. ABUSE OF DISCRETION ON PROPERTY
1. Did the trial court abuse its discretion by denying a motion to amend, vacate, or grant a new trial on a judgment which incorporates an agreement of the parties to property distribution if one party later decided the agreement was not fair?
2. When both parties were represented by counsel, the matter was pending for two years, the values used were those proffered by Tim, and the property was divided equitably, is that same agreement so unconscionable that it was abuse of discretion for the court to deny motions to re-open it?
3. When Tim knew of Diane's mother's land and set the values for the property, did the court abuse its discretion by denying motions based upon fraud?
4. Was the court required to redistribute the property based upon irregularity because Tim claimed to have forgotten a piece of property and that the values he proffered were low?
5. When Tim knew of Diane's mother's property but forgot, was the property agreement of the parties, by law, to be rescinded based upon estoppel?
6. Did the court abuse its discretion by denying motions concerning a matter over which the court has continuing jurisdiction


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Docket entries:
102/20/2007 NOTICE OF APPEAL: 02/16/2007
202/20/2007 ORDER FOR TRANSCRIPT: 02/16/2007
303/27/2007 TRANSCRIPTS DATED 11/07/06 & 1/29/07
403/27/2007 DISK-TRA(11/07/06 & 1/29/07)
503/27/2007 CERTIFICATE OF SVC OF TRANSCRIPTS (11/07/06 & 1/29/07)
605/07/2007 MOTION FOR STAY PENDING APPEAL & Brief in Support. RspDue: 05/29/2007
705/07/2007 E-FILED MOTION (Motion for Stay Pending Appeal)
805/07/2007 APPELLANT BRIEF
905/07/2007 E-FILED BRIEF - ATB
1005/08/2007 APPELLANT APPENDIX
1105/10/2007 Made 7 copies of ATB
1205/14/2007 Rec'd $25 surcharge for e-filed ATB (Receipt #17384)
1305/18/2007 RECORD ON APPEAL W/SEPARATES (ENTRY NO. 16). NOT REC'D WERE ENTRY NOS. 18, 19, & 48 (CR TAPES).
1405/18/2007 Return to Motion for Stay
1506/06/2007 ACTION BY SUPREME COURT (Mot. for Stay). Denied
1606/06/2007 APPELLEE BRIEF
1706/06/2007 APPELLEE APPENDIX
1806/06/2007 DISK - AEB
1907/02/2007 REPLY BRIEF (electronic)
2007/02/2007 E-FILED BRIEF (RYB)
2107/02/2007 Certificate of Service of RYB
2207/05/2007 Received copies of RYB from CSD
2309/17/2007 APPEARANCES: David R. Bliss, Timothy Christian; Sherry Mills Moore, Diane Christian
2409/17/2007 ARGUED: Bliss; Moore
2509/17/2007 ORAL ARGUMENT WEBCAST
2612/13/2007 DISPOSITION: AFFIRMED
2712/13/2007 UNANIMOUS OPINION: Sandstrom
2812/13/2007 Costs on appeal taxed in favor of Appellee
2912/14/2007 Judgment E-Mailed to Parties
3001/08/2008 MANDATE
3101/10/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

Generated from Supreme Court Docket on 12/19/2014