Anderson v. Anderson

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 9, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 86Wayne Roy Anderson, Plaintiff, Appellant, and Cross-Appellee
v.
Renee Lynn Anderson, Defendant, Appellee, and Cross-Appellant
No. 20220287
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable John C. Irby, Judge.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Opinion of the Court by McEvers, Justice.
Wayne R. Anderson, Casselton, ND, self-represented, plaintiff, appellant, and
cross-appellee; submitted on brief.
Robert J. Schultz, Fargo, ND, for defendant, appellee, and cross-appellant;
submitted on brief.
Anderson v. Anderson
No. 20220287
McEvers, Justice.
[¶1] Wayne Anderson appeals from a divorce judgment. Renee Anderson
cross-appeals. The parties raise issues concerning the district court’s marital
estate valuation and distribution. Wayne Anderson also argues the court erred
when it ordered him to pay attorney fees as a sanction for discovery violations
and contempt. We lack jurisdiction to consider the contempt decision because
Wayne Anderson did not timely appeal from the order. We otherwise affirm the
award of attorney fees. We reverse the district court’s property valuation
concluding the court erred as a matter of law when it valued a capital loss
carryover for tax purposes and when it excluded a portion of the parties’ assets
from the marital estate. We remand for the court to reconsider its property
distribution in light of our decision.
I
[¶2] Wayne Anderson sued Renee Anderson for divorce in December 2021.
They married in 1981 and have no minor children. Prior to trial, Renee
Anderson filed a motion to compel alleging discovery violations. She also filed
a motion for contempt alleging Wayne Anderson had improperly disposed of
personal property, forged her signature on tax documents, and deposited the
entirety of the parties’ tax return in his personal bank account. The district
court granted the motions and ordered Wayne Anderson to pay $500 in
attorney fees for the discovery violations and $1,500 for contempt. At trial,
Wayne Anderson testified he was unaware of the motions because of a lack of
communication with his prior attorney. After trial, the district court valued the
marital estate at $969,824 and distributed one-half to each party.
II
[¶3] Both parties argue the district court erred when it valued and
distributed the marital estate. Under N.D.C.C. § 14-05-24(1), the district court
is required to equitably distribute the divorcing parties’ property and debts.
“All property held by either party, whether held jointly or individually, is
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considered marital property.” Buchholz v. Buchholz, 2022 ND 203, ¶ 13, 982
N.W.2d 275 (cleaned up). The fact that a party inherited property or holds
property individually does not preclude its inclusion in the marital estate.
Ulsaker v. White, 2006 ND 133, ¶ 12, 717 N.W.2d 567. Before a court divides
the martial estate, it must determine the total value. Buchholz, at ¶ 13. When
dividing the marital estate, the court must consider the Ruff-Fischer
guidelines. McCarthy v. McCarthy, 2014 ND 234, ¶ 9, 856 N.W.2d 762.
[¶4] The district court’s valuation and distribution of the marital estate are
findings of fact reviewed under the clearly erroneous standard. Buchholz, 2022
ND 203, ¶ 13 (valuation is a finding of fact); Tuhy v. Tuhy, 2018 ND 53, ¶ 10,
907 N.W.2d 351 (equitable distribution is a finding of fact). “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, or if, after reviewing all of the evidence, we are left with
a definite and firm conviction a mistake has been made.” Tuhy, at ¶ 10 (quoting
McCarthy, 2014 ND 234, ¶ 8). We view the evidence in a light most favorable
to the court’s findings, which are presumptively correct. Tuhy, at ¶ 10.
A
[¶5] Renee Anderson argues the district court erred by designating a capital
loss carryover as a tax credit and by overvaluing the capital loss carryover for
income tax purposes. Neither party included the capital loss carryover on their
property and debt listing entered as an exhibit for trial. The record reflects the
parties’ 2020 joint tax return shows a long-term capital loss carryover amount
of $30,961. The 2020 tax return showed the capital loss allowed the parties to
reduce their annual income by $3,000. At trial, the court inquired about the
capital loss noted on the tax return. In response to this questioning, the
following discussion took place.
MR. SCHULTZ: Your Honor, it seems to me we probably
should have included on the 8.3 Listing of Assets and Liabilities
the loss carry forward as an asset because one of the two parties
would be, post-divorce, in a position to claim that. And it actually
-- if it still exists -- going forward, would shelter some income in
the future.
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THE COURT: Okay. So how do we make a record on that?
How do we know?
MR. SCHULTZ: I think the easiest way to do it would be to
just list the loss carry forward as an asset on the 8.3 and then
indicate that, to the extent it’s possible, it would be divided equally.
THE COURT: That seems logical. Acceptable, Counsel?
We don’t know what that is but split any loss.
MS. OVERBOE: Yeah. I think we’re gonna probably have to
look into what it is, first of all. But I’m sure he would be agreeable
to splitting that loss.
Wayne Anderson’s counsel later asked him to elaborate. He described losing
money after investing in oil wells:
We had to pay costs for finishing up the wells. And then --
and then, it’s like Renee said, then they found out that they were
kind of scamming people with too much -- taking too much money
away from -- or whatever, and then the government came in and
they made a big settlement. And that’s where we got the I think it
was like $40,000 in oil well tax credits, and we could use that over
$3,000 a year until it’s gone.
Q So $40,000 --
A That’s --
Q -- in tax credits?
A Yeah. Just in tax credits, yeah. And that’s why we see
$3,000. It’s only allowed $3,000 a year.
The record does not reflect the parties filed an amended N.D.R.Ct. 8.3 property
and debt listing.
[¶6] After trial, Wayne Anderson submitted proposed findings asserting “the
current remaining value of the tax credit is $27,000.” His proposed property
distribution lists a $27,000 “energy tax credit per year” to be awarded to him.
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Renee Anderson’s proposed findings and proposed distribution of property did
not include any reference to the capital loss carry over. The district court’s
findings described the property as a tax credit. Renee Anderson is correct that
the court found the asset was a tax credit rather than a capital loss carryover.
[¶7] The court adopted Wayne Anderson’s proposed valuation but distributed
it to Renee Anderson. She argues the court’s valuation is clearly erroneous
because the loss carryover can only be claimed as a deduction and not a credit.
She asserts its actual value is only “a small fraction” of $27,000. Although the
parties certainly could have provided the district court with better guidance on
this issue, we agree the court’s valuation is a misapplication of the law. As the
tax returns demonstrate, the loss carryover may only be used to offset income—
i.e., as a deduction. See 26 U.S.C. § 165(f) (capital losses may be deducted from
income); see also 26 U.S.C. § 1211(b) (capital losses limited to $3,000); 26 U.S.C.
§ 1212(b) (providing provisions for carrying over capital losses); Sestak v.
Comm’r, T.C.M. 2022-41, 6 (2022) (discussing capital loss deductions). The
value of the loss carryover therefore depends on the taxpayer’s marginal tax
rate, but there is no circumstance where it could be worth $27,000 as a matter
of law. We therefore reverse the district court’s valuation of this asset and
remand for the court to reconsider the issue.
B
[¶8] Wayne Anderson argues the district court erroneously excluded part of a
remainder interest Renee Anderson owns in 160 acres of farmland. The court
determined the value of the remainder interest was $233,282. However, the
court only included a portion of that value ($42,500) as “the marital portion of
Renee’s remainder interest.” The court appears to have done so because the
parties sold property in 1986 that Wayne Anderson inherited for an $85,000
profit. The court explained: “One half of $85,000 is $42,500. It is the Court’s
intention to award Renee the entire value of her remainder interest . . . valued
at, $233,282, less $42,500, which the Court will deem to be the marital portion
of that property. We hold the court’s decision to exclude a portion of the
interest’s value is a misapplication of the law. See Buchholz, 2022 ND 203, ¶ 13
(individually owned property must be included in the total value of the marital
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estate); Tuhy, 2018 ND 53, ¶ 11 (district court correctly included remainder
interest in marital estate); Ulsaker, 2006 ND 133, ¶ 15 (district court
misapplied the law by excluding property held by the parties from the marital
estate). On remand, the court must include the full value of the interest in the
marital estate.
[¶9] Wayne Anderson raises additional issues concerning the district court’s
valuation and distribution of the marital estate. He argues the court erred
when it valued the remainder interest and the parties’ personal property; the
court should have included farmland Renee Anderson may inherit from her
mother; and the court did not adequately consider the Ruff-Fischer guidelines
when dividing the property. We are not persuaded. “[P]roperty not owned by
either party is not marital property.” Werven v. Werven, 2016 ND 60, ¶ 14, 877
N.W.2d 9. Based on our review of the record, we conclude the court’s valuation
of the remaining marital assets is not clearly erroneous. We decline to address
Wayne Anderson’s arguments concerning the property division because the
court must reassess the issue on remand after including the entirety of the
farmland remainder interest and revaluing the capital loss carryover discussed
in the preceding section.
III
[¶10] Wayne Anderson argues the district court erred when it awarded
attorney fees for discovery violations and for contempt relating to Wayne
Anderson’s conduct of disposing of personal property and other misconduct
affecting marital assets.
[¶11] “Determining whether a contempt has been committed lies within the
district court’s sound discretion, which will not be overturned on appeal absent
an abuse of that discretion.” Rath v. Rath, 2013 ND 243, ¶ 4, 840 N.W.2d 656(quoting Bachmeier v. Bachmeier, 2013 ND 76, ¶ 4, 830 N.W.2d 546). As to the
contempt order, Wayne Anderson did not appeal within 60 days of notice of its
entry, and we therefore lack jurisdiction to review it. See Ted J. Boutrous,
L.L.C. v. Transform Operating Stores, LLC, 2023 ND 35, ¶ 40, --- N.W.2d --- (a
contempt order is collateral to the merits of a case and appealable by special
statute); see also N.D.C.C. § 27-10-01.3(3); N.D.R.App.P. 4(c).
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[¶12] As to the district court’s award of $500 in attorney fees for discovery
violations, Wayne Anderson failed to respond to the motion to compel. His
failure to respond to the motion constitutes an admission that it was
meritorious. See N.D.R.Ct. 3.2(c). Although he now claims his attorney did not
inform him of the motion, his burden on appeal is to prove the court abused its
discretion “in light of the information available at the time of the motion.” Lang
v. Bank of North Dakota, 530 N.W.2d 352, 354 (N.D. 1995); see also Panther
Pressure Testers, Inc. v. Szostak, 2023 ND 27, ¶ 8, 985 N.W.2d. 649 (discovery
sanctions are reviewed for an abuse of discretion). Given Wayne Anderson did
not respond to the motion to compel, we conclude the court did not abuse its
discretion by granting it.
IV
[¶13] We reverse the district court’s valuation of the capital loss carryover and
Renee Anderson’s remainder interest in the farmland. On remand, the court
shall revalue the capital loss carryover, include the full value of the interest in
the marital estate, and reassess its property distribution. The court may
conduct any additional proceedings it deems necessary. We affirm the
judgment in all other respects.
[¶14] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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