IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Erik Isaacson, Appellant,
vs.
Traci L. Isaacson, Appellee.
SUPREME COURT NO. 20090114
MORTON COUNTY NO. 30-07-C-663
BRIEF OF APPELLEE
APPEAL FROM THE JUDGMENT OF THE
DISTRICT COURT, COUNTY OF MORTON,
SOUTH CENTRAL JUDICIAL DISTRICT,
DATED JANUARY 27, 2009, BY THE
HONORABLE ROBERT O. WEFALD, PRESIDING
| SHERRY MILLS MOORE (ND 03595) | |
| P.O. Box 4144 | |
| BISMARCK | ND 58502-4144 |
| (701) 222-4777 | |
| Attorney for the Appellee | |
- -
TABLE OF CONTENTS
Paragraph No(s).
TABLE OF AUTHORITIES Page ii
STATEMENT OF ISSUES FOR REVIEW 1
STATEMENT OF THE FACTS 5
LAW AND ARGUMENT 15
A. If the trial court divided the two-day trial in half, giving
each party an equal amount of time in which to do both
direct and cross-examination, was Erik deprived of
due process because the judge periodically advised
the parties of the amount of time remaining and Erik did
not ask for more time? 15
B. If the parties stipulated to submit post trial briefs, and
were also able to comment and reply upon errors in
the court's initial draft opinion, and Erik did not ask to
give a closing argument, was Erik deprived of due process
because neither party gave an oral closing argument? 32
C. Did the court err by not characterizing breast implants
as assets to be divided if they have no fair market value,
and, Erik did not object nor make an offer of proof? 36
D. Did the court err by failing to require more information if,
after Erik asked for the court to order Traci to provide
information regarding the family limited partnership, she
did so, but Erik did not ask for additional information nor
cross-examine Traci on the issue? 49
CONCLUSION 55
TABLE OF AUTHORITIES
CASES Paragraph No(s).
Amsbaugh v. Amsbaugh,
2004 ND 11, 673 N.W.2d 601 53
Churchill v. Churchill,
2002 ND 93, 647 N.W.2d 706 55
Estate of Opatz,
554 N.W.2d 813 (N.D. 1996) 55
Fuhrman v. Fuhrman,
1997 ND 191, 254 N.W. 2d. 97 33
Great Plains Supply Co., Div. of Harvest States Cooperatives v. Erickson,
398 N.W.2d 732 (N.D. 1986) 17
Gullickson v. Kline,
2004 ND 76, 678 N.W.2d 138 19
Ibach v. Zacher,
2006 ND 42, 724 N.W.2d 165 31
Jorgenson v. Ratajczak,
1999 ND 65, 592 N.W.2d 527 55
K.S.J. v. J.F.B.,
2009 WL 1947871 (Del.Fam.Ct. 2008) 44
Kautzman v. Kautzman,
2003 ND 140, 668 N.W.2d 59 52
Kostelecky v. Kostelecky,
2006 ND 120, 714 N.W.2d 845 53
Morgan v. Morgan,
2007 WL 2812600 (Ky. App. 2007) 45
Niemann v. Niemann,
2008 ND 54, 746 N.W.2d 3 18
Okada v. Okada,
137 P.3d 386 (HI 2006) 43
TABLE OF AUTHORITIES (cont'd.)
CASES, cont'd. Paragraph No(s).
Selzler v. Selzler,
2001 ND 138, 631 N.W.2d 564 17
Thompson v. Olson,
2006 ND 54, 711 N.W.2d 226 19, 31
Wall v. Pennsylvania Life Insurance Co.,
274 N.W.2d 208 (N.D. 1979) 17
OTHER AUTHORITIES
N.D.R.App.P.:
Rule 38 55
STATEMENT OF ISSUES FOR REVIEW
[1] A. If the trial court divided the two-day trial in half, giving each party an equal amount of time in which to do both direct and cross-examination, was Erik deprived of due process because the judge periodically advised the parties of the amount of time remaining and Erik did not ask for more time?
[2] B. If the parties stipulated to submit post trial briefs, and were also able to comment and reply upon errors in the court's initial draft opinion, and Erik did not ask to give a closing argument, was Erik deprived of due process because neither party gave an oral closing argument?
[3] C. Did the court err by not characterizing breast implants as assets to be divided if they have no fair market value, and, Erik did not object nor make an offer of proof?
[4] D. Did the court err by failing to require more information if, after Erik asked for the court to order Traci to provide information regarding the family limited partnership, she did so, but Erik did not ask for additional information nor cross-examine Traci on the issue?
STATEMENT OF THE FACTS
[5] After 13 years of marriage, Traci and Erik Isaacson separated in January of 2007 and were divorced in January of 2009. (Transcript, page 46, line 7 (hereinafter "T46:7"), Appellant's Appendix, page 3, (hereinafter "A3")). Together they have three children aged 5, 11, and 13. (A3). After they separated they sold their marital home and each moved into a new home. (T176:19 - 177:3). The children resided primarily with Traci, with parenting time to Erik. (T13:16-18, 24:24 - 25:3, 401:5 - 402:7).
[6] At the time of separation, Traci was a homemaker, caring for the children and working part-time doing books for Erik's chiropractic business. (T83:20-84:2, 98:5-7). Erik and Traci worked together to build up Erik's business Mandan Chiropractic Clinic. (T391:9 - 392:3, 393:3 - 394:12). By the time of trial, Traci was a licensed realtor and had sold a few homes. (T396:18 - 398:1).
[7] When first they separated, the parties operated out of a joint account to pay bills. After a few months, Erik paid Traci $1,800 a month child support and she continued to receive her salary from Mandan Chiropractic Clinic of $1,800 a month. In January of 2008 Erik stopped paying her the salary. (T460:22-24). In April of 2008 he cut the child support in half deciding that, even though Traci had the children the majority of the time, because he wanted the custody to be split 50-50, he would pay support as if it were exactly equal, by his computation. (T81:3-14, 461:3-8). This decision left Traci with $900 a month on which to support the children and herself, in addition to her income of about $5,800 annually from her fledgling real estate business. (Exhibit 104 (Register of Actions, Docket No. 72)). To make up the shortfall between the support and the family expenses, Traci borrowed money. (T470:7 - 474:13). In October of 2008 a family limited partnership, TJK (referred to by Erik as a "trust"), formed by Traci's father for his three daughters, was dissolved by him, and Traci received her share, $90,206.92. (T468:12 -472:6). With that she repaid the loans, paid costs of mediation and litigation, and tried to meet her living expenses. By the time of trial, the proceeds from the partnership were gone as was the partnership. (T470:14-15).
[8] On the other hand, during the separation, Erik cashed in his 401(k) of about $10,000 and took a loan out against their office building, pocketing $60,000. Of that, he put $20,000 into the business and used the rest for his own living expenses. (T103:5 - 106:6). In addition, he loaned his girlfriend $3,700. (T107:21 - 108:2). During this same timeframe, without advising Traci, he cancelled the family's health insurance leaving them uncovered from May of 2008 through October of 2008 (T30:7-16, 39:22 - 40:4, 108:3-13, 430:25 - 432:10), but bought himself an ATV (T270:2-14). He then got a high deductible policy on himself and the children, leaving Traci bare. (270:15-17). His girlfriend and her son lived in his home without paying rent, mortgage, utilities, or property tax. (T236:12 - 238:25).
[9] Erik wanted the court to award equal physical custody of the children. (T79:16-25; A39). Traci believed the children would be best served by remaining in her custody with scheduled reasonable time for the children to be with Erik. (Exhibit 127 (Register of Actions, Docket No. 72); T456:12-18). The court gave custody of the children to Traci with reasonable visitation to Erik. In so doing, the court analyzed each of the statutory factors, finding that Traci was favored on providing love and affection, continuity and stability, and the domestic violence factors. (A74-77). Specifically, although Traci slapped Erik and fought back, the Court also finds more substantial physical domestic violence was inflicted by Erik upon Traci, including a bloody nose and broken ribs, coupled with years of filthy and degrading slurs made by Erik to Traci which the Court finds constitutes domestic violence. (A74). Erik was not favored on any factor.
[10] By the end of the trial, the parties were in agreement on the value of most of the personal property. (T209:1 - 223:6, A50-52, 68-71). Both of them wanted the lot and the pontoon, and each thought the distribution required a balancing payment from the other. (A50-52, 68-71). Values were disputed on the real property. The court agreed with Erik's value on the lot and the clinic building, with Traci's value on her house, and with neither party on Erik's house. (A91). The court awarded Erik the lot, Traci the pontoon, and accepted Erik's values on the vehicles. (A91).
[11] On the 8.3 Property and Debt Listing, Erik listed Traci's breast implants and her Lasik eye surgery as assets valuing them at $5,500 and $1,000 respectively. (A27, item #90; A28, item #96). At the inception of the trial the court advised that these were not assets. (T5:20 - 6:10). Erik raised no objection to the exclusion, provided no offer of proof, and did not include these items in his proposed property distribution in his post-trial brief. (A50-52).
[12] Because the family partnership was dissolved and the proceeds gone, the court gave the "trust" a zero value. (A81, 91). On the first day of trial, Erik asked that Traci be required to produce information on the "trust." The court then asked Traci to do so for the next day. The court was advised that Traci would be testifying on this, and the court said, "all right." The next day Traci testified about the partnership and produced an exhibit showing how the proceeds were used. Erik's attorney did not ask for any additional information or object to Traci not producing any additional information and, in fact, did not even cross-examine her on the partnership. (T182:6 - 184:5, 222:25 - 223:5, 228:11).
[13] Procedurally, at the beginning of the trial the court advised that each party would have an equal amount of time in which to present evidence, saying, [t]he court keeps track of the time and divides the time in half. Each of you will be given half the time to present your case. The case will finish on time so you better gauge your witnesses accordingly. (T7:12-15). Periodically on its own and in response to inquiry by counsel, the trial court advised how much time each party had left. (T279:1 - 279:3, 283:5, 360:12-19, 387:16-19, 467:1-7, 508:17-22, 524:14-22, 534:16-20, 545:10-12, 550:10-12, 554:4, 554:23). With a trial from 9:00 a.m. until 5:00 p.m., one hour for lunch, four ten-minute breaks a day, and fifteen minutes for the court to ask questions (T279:5), each party had approximately 373 minutes. Time was expended by eliciting direct testimony and in cross-examination. By the end of the first day, while still on Erik's case, Erik had 111 minutes left and Traci had 237. By the time Traci was able to present her case in chief, she had only 180 minutes left; Erik had 47.
[14] The first day of trial the court was advised that the parties had agreed that they wished to submit written summation. (T279:11-14). The court laid out its process - drafting an opinion, sending it to counsel for comment on errors, and then issuing a final opinion. (T279:15 - 281:3, 566:7-11). That is the procedure the court followed. In addition, the court directed questions about child support to both attorneys who supplied the requested information. (Appellee's Appendix, page 29-35 (hereinafter "AA29-35)).
LAW AND ARGUMENT
[15] A. If the trial court divided the two-day trial in half, giving each party an equal amount of time in which to do both direct and cross-examination, was Erik deprived of due process because the judge periodically advised the parties of the amount of time remaining and Erik did not ask for more time?
[16] At the beginning of the trial, the judge told both parties each had half the time to present the case, warning that the trial was going to finish on time and to gauge the witnesses accordingly. (T7:6-17). Periodically through the trial, the court let each party know how much time was left, often at the request of counsel. The parties were left with all the trial management decisions of which witnesses to call, or not, and what questions to ask, or not. Time was expended by each party on direct of their own witnesses or cross-examination of the other party's witnesses. The same rules applied to each party. Erik went first, used up his time, and now argues this was a deprivation of due process.
[17] Managing a trial is a significant function of the trial judge. A trial court has great latitude and discretion in conducting a trial and, absent an abuse of discretion, its decision on matters relating to the conduct of a trial will not be set aside on appeal. See Schaefer v. Souris River Telecomm. Coop., 2000 ND 187, ¶ 13, 618 N.W.2d 175; State v. Boehler, 542 N.W.2d 745, 747 (N.D. 1996); Great Plains Supply Co. v. Erickson, 398 N.W.2d 732, 734 (N.D. 1986). Likewise, a trial court has broad discretion in its control of the presentation of evidence. See Mayo v. Mayo, 2000 ND 204, ¶ 39, 619 N.W.2d 631; N.D.R.Ev. 61. Selzler v. Selzler, 2001 ND 138, ¶ 10, 631 N.W.2d 564. The standard of review is abuse of discretion, meaning did the trial court act in an unreasonable, arbitrary, or unconscionable manner, Wall v. Pennsylvania Life Insurance Co., 274 N.W.2d 208 (N.D. 1979), Great Plains Supply Co., Div. of Harvest States Cooperatives v. Erickson, 398 N.W.2d 732 (N.D. 1986).
[18] The specific issue of whether a trial court is permitted to limit or divide the parties' time has already been determined. In Niemann v. Niemann, 2008 ND 54, 746 N.W.2d 3, the parties each were given two hours in which to present the case. As here, they were advised in advance of the time limits and no limitations were put on the number of witnesses. On appeal the Court found no abuse of discretion in the time limits. Niemann, id.
[19] Erik contends that this case is akin to Gullickson v. Kline, 2004 ND 76, 678 N.W.2d 138, in which the trial court deprived one party of due process by refusing to allow live testimony in a protective order hearing. The comparison is inapt. This trial court allowed two days of live testimony. Rather, it is more akin to Thompson v. Olson, 2006 ND 54, ¶ 6, 711 N.W.2d 226. There, the parties knew in advance they had one day of trial and that each would have two hours and fifty minutes in which to present a case. As here, Thompson complained he did not get to cross-examine, and also, as here, the appellant did not ask the court for additional time nor provide an offer of proof of what additional time would have elicited. As with Thompson, id., the choice of how to allocate his time was Erik's, not the court's. The Thompson case made clear that a trial court may impose reasonable restrictions on the length of a hearing and the number of witnesses allowed.
[20] Time limitations are not foreign to the litigation process. For example, a North Dakota Supreme Court argument is only thirty minutes for the appellant, ten minutes less for the appellee. An answer is due within twenty days of service. Appellate briefs are limited in page length. In the South Central Judicial District, interim order hearings are only an hour. Limitations are part and parcel of litigation, and for good reason. If the trial court cannot limit and allocate the time, how can a defendant ever be assured of sufficient time to present the case, unless trials are allowed to go on as long as each party wishes. A divorce case in particular warrants an equal division of time between the parties.
[21] In this specific case, on the informational statement, both parties agreed that the trial would take two days in length. (AA2).
[22] Contrary to his assertion in his brief, Erik was not cut short in his time; rather, he was required to abide by the time limitations imposed on both parties. How he used that time was completely Erik's to determine. Because he ran low on time during his cross-examination of Traci, Erik posits that he was deprived of cross-examination. The time was his to manage, however. The rules did not change mid-stream, or mid cross-examination, he simply came to the end of his time. So, for example, if measured by pages of transcript, his cross-examination of Traci went for 65 pages, compared to hers of Erik of 88, but his direct was much longer than Traci's and he was able to call eight witnesses to her five.
[23] If, in fact, Traci was, as he labeled her, a "very crucial witness," perhaps he should have spent less time with property appraisers or the accountant and saved more for Traci. Even though his time grew short during cross of Traci, not only did he still have time left, but the areas he chose to cover were in the sole and complete control of his attorney. Ultimately, Erik's attorney made the decision to stop the cross-examination and save Erik's remaining time for other witnesses.
[24] Part of the problem with Erik's appeal is that he wants to convert acts of trial management into mortal appellate sins. When the trial court told Erik's counsel that she had only five minutes left, he paints that as "interrupting" her, "stopping" her cross-examination, and "advising" her. First, not to put too fine a point on it, he did not interrupt. Secondly, at the end of the witness' answer, the judge told counsel that Erik had only five minutes left. The decision to stop was Erik's.
[25] In trial court the time keeper is the judge. By telling Erik how much time he had left, the court was simply being helpful, particularly as Erik's attorney had asked him several times throughout the trial how much time she had remaining. The court's statement is akin to the yellow light on the podium at the North Dakota Supreme Court and not at all dissimilar to the Chief Justice saying to counsel during argument, "I see your yellow light is on, counsel." It is a courtesy, not an imposition of draconian inequities. And, just like appellate argument, if counsel spends too much time on one issue and not enough on another, that is a function of strategy and management and not the court's fault, especially at the trial court level.
[26] Then, Erik complains, the custody investigator testified on his time. First, he called her as a witness and could have chosen not to. Presumably, strategically, he believed her testimony would be helpful to him. Secondly, even so, the cross-examination of the custody investigator took 22 pages, compared to 26 pages of direct testimony. The cross-examination time burned off Traci's clock not his. The difference was minimal and, again, volitional by counsel.
[27] The next variation on the theme is, that because he was low on time by the time he was to cross-examine Traci, Erik was deprived of an opportunity to meet her allegations of domestic violence. Erik's maltreatment of Traci was not a new allegation raised during her direct. He was apprised of the allegations from the get-go. In her supporting affidavit for the interim order, Traci set out the allegations of abuse. (Register of Actions, Docket No. 48). The custody investigator's report (A17, 21) covered Traci's allegations of domestic violence as did the custody investigator in her testimony. (T20:13 - 21:4, 65:23 66:3). The children's counselor, Theresa Porter, testified to the children having witnessed the abuse, as was reflected in the counselor's notes which counsel had prior to the trial. (Exhibit 126 (Register of Actions, Docket No. 72), T291:24 - 293:17). Erik testified off and on all day the first day and certainly had the opportunity at that time to refute the contentions. In fact his rebuttal witness, his sister, Jill Morton, was here from Minnesota to testify to her observations relative to abuse. (T554:23 - 558:6). Also, in rebuttal, Erik himself addressed the abuse issue. (T553:10 - 554:2).
[28] Beyond that, Erik misstates the court's custody decision saying it was decided on the domestic violence factor. Rather, the trial court found that Traci was favored on three factors -- providing love and affection, continuity and stability, and domestic violence. (A74-78).
[29] After the direct examination of each of the witnesses, the court asked if Erik's counsel was going to cross-examine, just as he did of Traci's counsel at the conclusion of all her direct testimony. He did not suggest, or advise, or direct, or curtail Erik's choice to examine, or not.
[30] The error of the court's ways, Erik claims, are illustrated by the fact that by the time he was on his rebuttal time he had only two minutes left, while Traci still had thirty-four. They started with the same amount of time. Whatever precipitated the amount of time at the end of the trial stems not from judicial inequity but attorney efficiencies.
[31] Finally, even if the law were not what it is and his time was arbitrarily restricted, Erik had an obligation at some point to do something about it at the trial level. Not once did Erik's attorney ever ask the court for more time to cross-examine or rebut. Not once did Erik make an offer of proof of what he could do if just given a bit more time. If time were crucial, to the level of constitutional deprivation, surely Erik should at least have asked or objected at the trial level. Not surprisingly, that is a basic tenet of appellate law. If you didn't present it to the trial court, you cannot complain of error. Stated another way, a party cannot just wait in the weeds for trial error, fail to point it out, and hope for an "aha" moment on appeal. Such is the law. Thompson v. Olson, 2006 ND 54, ¶ 6, 711 N.W.2d 226, Ibach v. Zacher, 2006 ND 42, ¶ 6, 724 N.W.2d 165.
[32] B. If the parties stipulated to submit post trial briefs, and were also able to comment and reply upon errors in the court's initial draft opinion, and Erik did not ask to give a closing argument, was Erik deprived of due process because neither party gave an oral closing argument?
[33] North Dakota law holds that a party has a right to closing argument. In this case, on the first day of trial, the parties told the court that they preferred to submit written summation in the case. (T279:11-280:6). Never did Erik ask for an opportunity to also present an oral argument. Each party submitted a trial brief. (A30-71). Additionally, after the briefs, the court sent out a draft opinion and asked the parties to comment on any perceived errors in the opinion. Each party commented and Erik submitted a reply letter of comment. (AA3-35). With all these opportunities to sum up, comment and reply, the parties were accorded ample vehicles in which to evoke for the court the stimulation of opposing viewpoints inherent in the collegial decision-making process of a jury. Fuhrman v. Fuhrman, 1997 ND 191, 254 N.W. 2d. 97, 102.
[34] After explaining that the court prefers to do immediate work on a case when it is fresh at the close of trial, the court said that it would begin to write the opinion prior to receiving the briefs. The draft opinion was not issued until after the briefs were submitted. Then the parties were allowed a period in which to comment. In fact, the trial court amended its opinion based upon those comments, primarily Erik's. Perhaps Erik is suggesting that, because the court said it was going to start working on the opinion, he was deprived of due process. Surely it cannot be deemed an abuse of discretion for a court to start an opinion before the briefs or that the trial court cannot write down preliminary thoughts during trial or shortly afterwards. There is no law supporting that proposition, nor should there be.
[35] If Erik really wanted to have oral arguments and written trial briefs and a comment opportunity after the draft opinion, at the very least, he should have asked. Not only did he not ask, he agreed to written briefs. And, if Erik believed himself to be constitutionally aggrieved at the end of the trial, after the trial court said it was going to begin the opinion writing process, at that point Erik should have asked for oral argument if he believed the lengthy written brief he had requested would not be in time to assure stimulated thought. Not only is it the law, but it is logic that, if a party wants something from a judge, the party has to ask for it. He did not.
[36] C. Did the court err by not characterizing breast implants as assets to be divided if they have no fair market value, and, Erik did not object nor make an offer of proof?
[37] Erik included Traci's breast implants and her Lasik eye surgery as assets on the 8.3 Property and Debt Listing. At the beginning of the trial the court eliminated them from the list. Erik never said another word about the breast implants -- not in testimony, not in cross, not in his closing brief and proposal, and not in comments on the draft opinion.
[38] Erik also made no offer of proof. As a result, the only information on the record comes from testimony provided by Erik's sister, Jill Morton. His sister testified that at a Christmas gathering at her mother's home, she insulted Traci by suggesting a gift she received would show off her breasts. Jill characterized her own comment as one about Traci's implants. (T555:14). Traci testified the Christmas comment took place in 2006, which was prior to separation. (T438:13).
[39] While the trial court is tasked to assess all of the parties' assets, the law has never deemed a body part to be an asset to be distributed in a divorce. The court did not err by failing to strike new ground in this regard.
[40] The job of the trial court is to determine the fair market value of the asset. No evidence was presented nor conceivably could be presented as to the value of a used, intact implant, just as it could not have been presented for Lasik eye surgery. No one would buy a used implant, particularly with the requisite cost entailed in the removal of an implant. Without a fair market value, the implant had no value.
[41] The implications of Erik's proposed clear error are far reaching. Is the apparatus in a knee replacement an asset? Or, is that different because it is a procedure typically done to reduce pain and increase mobility? Then the divorce court will need to get into the business of determining which surgical procedures are deemed done for purposes of appearance and which for remedial conditions. Property and debt listings would have to include hair plugs, tummy tucks, breast implants, and contact lenses, but not knee joints, spinal rods, or eyeglasses. What does the court do with acne treatment? It relieves pain but also improves appearance. Or, how about braces? They improve the appearance, but also the bite.
[42] The reason this rings so ridiculous is because it is. If what Erik was really trying to suggest is that having implants was a foolish expenditure, perhaps depletion of family resources, dissipation of funds, then that is what he should have argued and presented. Had he done so, the underlying source of funds, decision-making process, and joint agreement of the parties could also have been explored.
[43] He cites three cases from other jurisdictions as supportive of his novel proposition, but they do not. None of them finds that a breast implant or any other body part is a marital asset. In fact, none of them refer to breast implants at all. Okada v. Okada ,137 P.3d 386 (HI 2006) says that, on remand, the court may consider if the post separation money expended by the wife on cosmetic surgery was a reasonably necessary medical expense and, if not, the court should include the money expended as a marital asset and charge her with having received it.
[44] The Delaware case, K.S.J. v. J.F.B., 2009 WL 1947871 (Del.Fam.Ct. 2008), simply states that a bill for three procedures at a dermatology and cosmetic clinic incurred during the marriage is marital and subject to division.
[45] Contrary to Erik's statement in his brief, the third case cited, Morgan v. Morgan, 2007 WL 2812600 (Ky. App. 2007), did not hold that a party's breast implant was a marital asset. After separation Mr. Morgan spent $141,953 on what the trial court determined to be dissipation of assets. Included in his expenditures was his cosmetic surgery. The appellate court agreed that use of most of these funds, including the cosmetic surgery, was dissipation of assets and to be considered distributions to Mr. Morgan. While it seems unlikely he had breast implants, the primary distinction between the Morgans and the Isaacsons is that Mr. Morgan had his surgery after the parties separated and before the trial. It is not a distinction without a difference.
[46] For this court to reverse on Erik's premise, it would, first, have to overturn the trial court on a theory never presented to the trial court. Then, this court would need to expand the theory to include pre-separation expenditures. Specifically, Erik asked the trial court to consider Traci's breast implants as assets. The court did not, and should not. Now, instead, he suggests by allusion to other court cases in other jurisdictions, this Court should reverse because the trial court did not consider the funds expended on the surgery to be a pre-distribution or dissipation of assets. Because Traci's surgery was done well before the separation, this court would also have to move the pre-distribution line, as a matter of law, from expenditures made after the parties separate to include those made while the parties were married.
[47] From a policy perspective, moving the line would require courts to be hideously involved in Monday morning quarterbacking. If surgery during the intact marriage can be considered a pre-distribution after separation, what about other expenditures -- the teeth he had straightened, the hip she had replaced, the hunting trip he took to Colorado. Each trial would be a trip down a bad memory lane as first one spouse, and then the other, presented evidence of financial purchases and expenditures made during the marriage that neither really liked, or maybe even liked at the time but now does not.
[48] Without raising the issue, objecting, or making an offer of proof, nor even by misstating the law can Erik now claim the court erred.
[49] D. Did the court err by failing to require more information if, after Erik asked for the court to order Traci to provide information regarding the family limited partnership, she did so, but Erik did not ask for additional information nor cross-examine Traci on the issue?
[50] On the first day of trial, Erik's attorney asked the court to order Traci to produce information regarding her "trust." The court said, "bring in the information." Traci's counsel said that Traci would testify about the partnership the next day, and the court said "all right." The next day she testified about the partnership and submitted Exhibit 114 (Register of Actions, Docket No. 72) showing loans paid with the proceeds she received from the dissolution of the partnership. Although Traci was cross-examined by Erik's attorney, at no time did anyone ask for any additional information from Traci about the partnership -- not the court, and not Erik. Now, on appeal, Erik claims the failure to require her to produce something additional was error on the part of the trial court.
[51] By careful wordcrafting, Erik's appeal argues that Traci did not produce all that she was ordered to produce. In fact, he calls it a "clear and unambiguous order." The court ordered Traci to address the issue, and she did. If it wasn't enough information for Erik, he could have raised it with the court or at least on cross-examination. Erik cannot alchemize his own failure into court error.
[52] Of all the hidden traps a successful appeal by Erik would mean for trial courts, this issue perhaps embodies the worst. If Traci's testimony and exhibit was insufficient to meet Erik's request, he should have said something, but he did not.
For an effective appeal on any proper issue, the matter must have been raised in the trial court, so the trial court could rule on it, and a failure to object to an irregularity at trial is a waiver of the issue. Piatz v. Austin Mut. Ins. Co., 2002 ND 115, ¶ 7, 646 N.W.2d 681. Thus, issues not raised in the trial court cannot be raised for the first time on appeal. Questa Res., Inc. v. Stott, 2003 ND 51, ¶ 6, 658 N.W.2d 756. "The purpose of this rule is to prevent a party from inviting error upon the trial court and then seeking to prevail upon appellate review of the invited error." Klose v. Klose, 524 N.W.2d 94, 96 (N.D. 1994). Kautzman has not directed our attention to anything in the record indicating he objected to Judge Dawson participating or ruling on any issue involved in this appeal. We "are not ferrets, obligated to engage in unassisted searches of the record for evidence to support a litigant's position." Fox v. Fox, 2001 ND 88, ¶ 22, 626 N.W.2d 660. We, therefore, decline to further address this issue.
Kautzman v. Kautzman, 2003 ND 140, ¶ 10, 668 N.W.2d 59.
[53] The law does require the court to place values on the property and the value needs to be backed up by the evidence. The value of an asset is a finding of fact, invoking the clearly erroneous standard on appeal. Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 12, 673 N.W.2d 601, Kostelecky v. Kostelecky, 2006 ND 120, ¶ 8, 714 N.W.2d 845.
[54] The court valued the partnership at zero. (A81, 91). Traci's testimony and Exhibit 114 provided the evidence needed for the court to make that finding. She further explained why it was gone, just as Erik's loan proceeds and retirement account were gone. The court accepted her explanation. The evidence supported the court's finding that the partnership had no value.
CONCLUSION
[55] Traci asks this Court to award her attorney's fees in this matter. Erik bases his appeal on what he sees as omissions by the trial court, all of which could have been dealt with by the trial court if Erik would have presented the issues to the trial court. Requiring her to now expend funds to defend this frivolous appeal simply serves to reduce the property distributed to her in an equitable fashion. N.D.R.App.P. 38, Estate of Opatz, 554 N.W.2d 813, 817 (N.D. 1996), Jorgenson v. Ratajczak, 1999 ND 65, ¶ 26, 592 N.W.2d 527, Churchill v. Churchill, 2002 ND 93, 647 N.W.2d 706.
[56] Underlying each of the issues Erik presents is a corresponding failure on his part to present the issue to the trial court. Appeal has never been accorded the function of do-overs. Traci asks that this court affirm.
Dated this 23rd day of October, 2009.
| SHERRY MILLS MOORE (ID No. 03595) | |||||
| Attorney for the Appellee | |||||
| P.O. Box 4144 | |||||
| Bismarck, ND 58502-4144 | |||||
| (701) 222-4777 |