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Kovarik v. Kovarik

May 14, 2009

JENNIFER KOVARIK, PLAINTIFF AND APPELLANT
v.
BRADLY KOVARIK, DEFENDANT AND APPELLEE



Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable Laurie A. Fontaine, Judge.

The opinion of the court was delivered by: Sandstrom, Justice.

AFFIRMED.

[¶1] Jennifer Kovarik, now known as Jennifer Stahl, appeals a district court judgment dividing marital property between her and her former husband, Bradly Kovarik. We affirm.

I.

[¶2] Jennifer and Bradly Kovarik were married in July 2001. There were no children born of the marriage. They separated in August 2007, and Jennifer Kovarik sued for divorce in September 2007. On her preliminary property and debt listing under N.D.R.Ct. 8.3, Jennifer Kovarik listed three parcels of real property and four certificates of deposit allegedly owned by Bradly Kovarik. Bradly Kovarik denied having any interest in the certificates of deposit and two of the three parcels. Trial was held in 2008.

[¶3] In 2001, a few months after the parties' marriage, Bradly Kovarik's parents deeded some real property to Bradly Kovarik and his sister, Wanda Morstad. Two parcels were deeded to Bradly Kovarik alone, and one parcel was deeded to him and Morstad jointly. The transfers included a reservation of a life estate interest for Bradly Kovarik's parents. After Bradly Kovarik's parents liquidated their farm business and equipment, they placed the proceeds in certificates of deposit. Four of these certificates were placed in the names of Bradly Kovarik and his sister. The certificates were retained by Bradly Kovarik's parents in their home. Although the certificates were in both Bradly Kovarik's and Morstad's names, Morstad declared the interest from the certificates as income on her tax return each year. Bradly Kovarik's parents testified, however, they reimbursed Morstad for any taxes she paid as a result.

[¶4] At trial, Bradly Kovarik admitted he transferred his remainder interest in the two parcels at issue to his parents in contemplation of the divorce. He also testified he first learned about the existence of the certificates of deposit from his sister when she told him she had cashed one that had his name on it as well, but he did not receive any of the proceeds. At the request of her mother, Morstad also negotiated the other three certificates of deposit after Jennifer and Bradly Kovarik's divorce proceedings had begun, but before the trial.

[¶5] The district court valued the parties' marital assets at $110,669.07, and their marital debt at $89,997.08. The court awarded Jennifer Kovarik $11,396.59 in marital property. She was allocated $21,367.39 of the parties' marital debt. The court awarded Bradly Kovarik $9,275.40 in marital property, including the parties' home and the remainder interest in a real estate property in which his parents retain a life estate, and apportioned him $68,629.69 of the marital debt. The court explained in its amended findings of fact, conclusions of law, and order for judgment that it had considered that the real estate was transferred to remove it from the marital assets, which together with other factors led to the slightly unequal award of property. The district court found Bradly Kovarik did not have any interest in the certificates of deposit, and therefore did not include them in the value of the marital estate.

[¶6] Jennifer Kovarik appeals, arguing the district court erred in excluding Bradly Kovarik's remainder interest in two parcels of property, because that interest was transferred without any consideration and in contemplation of the divorce, resulting in dissipation of marital property. She also argues the district court erred in not including in the marital assets Bradly Kovarik's interest in four certificates of deposit for a total of $60,000.

[¶7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II.

[¶8] A district court's decisions regarding the division of marital property are findings of fact and may be reversed on appeal only if clearly erroneous. Lynnes v. Lynnes, 2008 ND 71, ¶ 12, 747 N.W.2d 93. "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 the entirety of the evidence, this Court is left with a definite and firm conviction a mistake has been made." Id. A district court's findings of fact are presumed correct, and we view the evidence in the light most favorable to its findings. Lorenz v. Lorenz, 2007 ND 49, ¶ 5, 729 N.W.2d 692.

[¶9] Division of marital property upon divorce must be equitable. N.D.C.C. § 14-05-24(1). Although the division does not have to be equal, a substantial disparity must be explained. Wold v. Wold, 2008 ND 14, ¶ 6, 744 N.W.2d 541. All of the real and personal property accumulated by the parties, regardless of source, must be included in the marital estate. Lynnes, 2008 ND 71, ¶ 14, 747 N.W.2d 93. After including all of the marital assets and debts, the district court must apply the Ruff-Fischer guidelines to divide the property. Id.; Fischer v. Fischer, 139 N.W.2d 845 (N.D. 1966); Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952).

A.

[¶10] A party's dissipation of marital assets is an important factor to consider in arriving at an equitable distribution of the property. Horner v. Horner, 2004 ND 165, ¶ 16, 686 N.W.2d 131.

[¶11] Jennifer Kovarik argues the district court failed to properly include the property transferred by Bradly Kovarik and therefore the court's order could not have resulted in a fair and equitable distribution of the marital property. At trial, Bradly Kovarik admitted he transferred the property in an attempt to remove it from the parties' marital assets. The district court found the real estate property to have been transferred in contemplation of a divorce. The district court identified the property and valued it at a total of $35,151.98. The district court also explained that had the transferred property been included, Bradly Kovarik would have been awarded approximately $32,000 more than Jennifer Kovarik.

[¶12] Although the district court did not include the value of the transferred property in the mathematical worksheet, its ultimate property division reflected that the transfer occurred in contemplation of the divorce. As in Lorenz, 2007 ND 49, ¶ 10, 729 N.W.2d 692, in which the district court did not include one spouse's school loans in the mathematical worksheet but had included them in the parties' total marital debt, here, although the district court did not include the value of the property in the mathematical worksheet, it made detailed fact findings regarding the property. Further, in a concluding paragraph to its amended findings of fact, conclusions of law and order for judgment, the district court, explaining the unequal property division, stated, "While [the property division] is not equal this Court has considered the fact the defendant transferred a $35,151.98 of value of a remainder interest in the real property five days prior to signing the admission of service of a summons and complaint in a divorce action." On the basis of the record, we conclude the district court ultimately considered the dissipated property in the marital property distribution although it did not include its value in the mathematical worksheet. The district court thus did not exclude the transferred real estate from its decision regarding the division of the parties' marital property.

B.

[¶13] A district court may consider property to be part of the marital estate, if supported by evidence, even if a party claims it is owned by a nonparty. Barth v. Barth, 1999 ND 91, ¶ 8, 593 N.W.2d 359. "The principles applicable to inter vivos gifts in general apply as well to purported gifts of certificates of deposit." 38 Am. Jur. 2d Gifts § 67 (1999). A valid gift made during the donor's lifetime must satisfy certain requirements-donative intent, delivery, actual or constructive, and acceptance by donee. Makedonsky v. North Dakota Dep't of Human Servs., 2008 ND 49, ¶ 11, 746 N.W.2d 185. ("A valid gift requires an intention by the donor to then and there give the property to the donee, coupled with an actual or constructive delivery of the property to the donee and acceptance of the property by the donee.") A donor's intent is a question of fact. Doeden v. Stubstad, 2008 ND 165, ¶ 12, 755 N.W.2d 859. The actual or constructive delivery must be "of a nature sufficient to divest the owner of all dominion over the property and to invest the donee therewith." In re Kaspari's Estate, 71 N.W.2d 558, 567 (N.D. 1955).

[¶14] Bradly Kovarik's parents testified that after liquidating their farm and equipment in 1999, they placed four certificates of deposit in Bradly Kovarik's and his sister's names-"Wanda Morstad or Bradly Kovarik." They also testified they did not intend to give Bradly Kovarik and Morstad any present interest in the certificates. Moreover, Bradly Kovarik's father testified the certificates, prior to having been cashed out, had been locked in a safe in their home and neither Bradly Kovarik nor his sister could just come and take the certificates.

[¶15] Bradly Kovarik testified he had no knowledge of the certificates' existence until his sister told him she cashed one out and used some of the proceeds for home repairs. He also testified he did not receive any of the remaining proceeds. Wanda Morstad testified she did not expect the certificates of deposit to belong to her. When requested, she assisted her parents in cashing out the certificates, which she did with respect to the remaining three certificates.

[¶16] The district court found Bradly Kovarik's parents did not intend to gift the certificates to him and his sister. The court further found the certificates were never delivered to either Bradly Kovarik or his sister but were retained in their parents' possession. The record does not reflect donative intent or delivery of the certificates to Bradly Kovarik, either actual or constructive. In the absence of a donative intent and delivery, the district court's finding that there was no valid gift is not clearly erroneous. See McGillivray v. First Nat'l Bank, 217 N.W. 150 (N.D. 1927) (there was no complete gift of certificates of deposit made in the name of the alleged donee because the alleged donor retained at all time possession of the certificates and the key to the safety deposit box where the certificates were kept, thus keeping control of them, and there was no evidence to establish that the alleged donor intended to divest herself of the use or absolute control of the money deposited).

III.

[¶17] Jennifer Kovarik also argues the district court erred in valuing the personal property awarded to Bradly Kovarik at $785.

[¶18] We do not reweigh evidence or reassess credibility. Oldham v. Oldham, 2004 ND 62, ¶ 14, 677 N.W.2d 196. The district court found that although Jennifer Kovarik valued Bradly Kovarik's property at $8,000, she did not provide any evidentiary support. Bradly Kovarik valued the personal property remaining in his possession at $785. The district court, finding Jennifer Kovarik did not dispute Bradly Kovarik's assigned values, accepted Bradly Kovarik's valuation. On the basis of the record, Jennifer Kovarik's allegation that the district court erred in its valuation of property is groundless, and the property valuation is not clearly erroneous.

IV.

[¶19] We hold the district court's property distribution and property valuation is not clearly erroneous, and affirm.

[¶20]Dale V. Sandstrom

Daniel J. Crothers

Carol Ronning Kapsner

Gerald W. VandeWalle, C.J.

Maring, Justice, ...


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