Christian v. Christian
Timothy Christian, Plaintiff and Appellant
Diane Christian, Defendant and Appellee
South Central Judicial District,
Judge Bruce B. Haskell
|Nature of Action:||Divorce/Property Div./Alimony|
|Term:||09/2007  Argument: 09/17/2007 2:45pm|
|ND cite:||2007 ND 196|
742 N.W.2d 819
Listen to recording of oral argument in MP3 format
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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|1||02/20/2007||NOTICE OF APPEAL: 02/16/2007|
|2||02/20/2007||ORDER FOR TRANSCRIPT: 02/16/2007|
|3||03/27/2007||TRANSCRIPTS DATED 11/07/06 & 1/29/07|
|4||03/27/2007||DISK-TRA(11/07/06 & 1/29/07)|
|5||03/27/2007||CERTIFICATE OF SVC OF TRANSCRIPTS (11/07/06 & 1/29/07)|
|6||05/07/2007||MOTION FOR STAY PENDING APPEAL & Brief in Support. RspDue: 05/29/2007|
|7||05/07/2007||E-FILED MOTION (Motion for Stay Pending Appeal)|
|9||05/07/2007||E-FILED BRIEF - ATB|
|11||05/10/2007||Made 7 copies of ATB|
|12||05/14/2007||Rec'd $25 surcharge for e-filed ATB (Receipt #17384)|
|13||05/18/2007||RECORD ON APPEAL W/SEPARATES (ENTRY NO. 16). NOT REC'D WERE ENTRY NOS. 18, 19, & 48 (CR TAPES).|
|14||05/18/2007||Return to Motion for Stay|
|15||06/06/2007||ACTION BY SUPREME COURT (Mot. for Stay). Denied|
|18||06/06/2007||DISK - AEB|
|19||07/02/2007||REPLY BRIEF (electronic)|
|20||07/02/2007||E-FILED BRIEF (RYB)|
|21||07/02/2007||Certificate of Service of RYB|
|22||07/05/2007||Received copies of RYB from CSD|
|23||09/17/2007||APPEARANCES: David R. Bliss, Timothy Christian; Sherry Mills Moore, Diane Christian|
|24||09/17/2007||ARGUED: Bliss; Moore|
|25||09/17/2007||ORAL ARGUMENT WEBCAST|
|27||12/13/2007||UNANIMOUS OPINION: Sandstrom|
|28||12/13/2007||Costs on appeal taxed in favor of Appellee|
|29||12/14/2007||Judgment E-Mailed to Parties|
|31||01/10/2008||RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|