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Brummund v. Brummund

June 30, 2010

CLARICE A. BRUMMUND, PLAINTIFF AND APPELLANT
v.
CARLTON D. BRUMMUND, DEFENDANT AND APPELLEE



Appeal from the District Court of Dickey County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.

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

AFFIRMED.

[¶1] Clarice Brummund appealed from a district court judgment granting a divorce, dividing the marital property and awarding her spousal support. We affirm, concluding the district court did not err in holding the parties' premarital agreement applied to the appreciation in value of Carlton Brummund's separately owned farmland.

I.

[¶2] Prior to their marriage in 1994, Clarice and Carlton Brummund signed a premarital agreement. The agreement provided that "neither party, by virtue of the marriage, shall have, or acquire, any right, title or claim in and to the real or personal estate of the other, except as provided in Sections Three and Four, above." The agreement included an extensive listing of the property brought into the marriage by each party, with the value of each item also listed, and designated the listings as the "separate property" of each. Included in Carlton Brummund's property listing was farmland in Dickey County valued at $449,523.

[¶3] Clarice Brummund brought this divorce action in 2007, and the parties agreed to bifurcate the issue of the interpretation of the premarital agreement. The primary dispute was whether the agreement applied to the appreciation in value of Carlton Brummund's farmland during the duration of the marriage. Following a hearing, the district court concluded that the premarital agreement was unambiguous and applied to the appreciation in value of the farmland. Judgment was entered ordering that "the parties may maintain their own, separate property as set forth in the unambiguous language of" the premarital agreement. The district court certified the judgment as final under N.D.R.Civ.P. 54(b), and Clarice Brummund appealed. We concluded the Rule 54(b) certification had been improvidently granted and dismissed the appeal. See Brummund v. Brummund, 2008 ND 224, 758 N.W.2d 735.

[¶4] After trial on the remaining issues, the district court granted the divorce, divided the marital property and awarded Clarice Brummund spousal support. In addition to receiving her separate property under the premarital agreement, Clarice Brummund was awarded property valued at $378,179.04, representing one-half of the net marital property of $756,358.07, and was awarded permanent spousal support of $1,000 per month. Clarice Brummund appealed from the judgment.

II.

[¶5] The sole issue presented on appeal is whether the district court erred in concluding that the parties' premarital agreement applied to the appreciation in value of Carlton Brummund's separate real property listed in the premarital agreement.

[¶6] Under the Uniform Premarital Agreement Act, N.D.C.C. ch. 14-03.1, parties may contract to the disposition of property upon divorce. Specifically, parties are allowed to agree to "[t]he rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located" and to "[t]he disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event." N.D.C.C. § 14-03.1-03(1)(a) and (c). "A premarital agreement is a contract, and its interpretation is a question of law, which this Court reviews de novo on the entire record." Tweeten v. Tweeten, 2009 ND 164, ¶ 11, 772 N.W.2d 595; see also Jangula v. Jangula, 2005 ND 203, ¶ 9, 706 N.W.2d 85; Rhodes v. Rhodes, 2005 ND 38, ¶ 3, 692 N.W.2d 157. "When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible." N.D.C.C. § 9-07-04; see Binek v. Binek, 2004 ND 5, ¶ 13, 673 N.W.2d 594. "Extrinsic evidence is properly considered only if the language of the agreement is ambiguous and the parties' intentions cannot be determined from the writing alone," Binek, at ¶ 13 (quoting Miller v. Schwartz, 354 N.W.2d 685, 689 (N.D. 1984)), or if the premarital agreement "does not reflect a spouse's intent because of fraud, mistake, or accident." Rhodes, at ¶ 3.

[¶7] Clarice Brummund contends that appreciation of premarital property is marital property subject to equitable distribution upon divorce, citing Buzick v. Buzick, 542 N.W.2d 756, 759 (N.D. 1996). We agree that, in the absence of a premarital agreement, all of the property owned by the parties, including premarital "separate" property and appreciation in value of premarital property, must be included in the marital estate and equitably divided by the trial court. See, e.g., Hitz v. Hitz, 2008 ND 58, ¶ 14, 746 N.W.2d 732; Wilhelm v. Wilhelm, 1998 ND 140, ¶ 18, 582 N.W.2d 6. Thus, if there was no premarital agreement, the entire value of the disputed farmland would be considered marital property subject to equitable distribution. Under N.D.C.C. § 14-03.1-03(1)(a) and (c), however, the parties may contract with respect to their rights in "the property of either or both of them whenever and wherever acquired," and may specify the "disposition of property upon . . . marital dissolution." This includes property which otherwise would be considered part of the marital estate and subject to equitable distribution.

[¶8] In the Brummunds' premarital agreement, the parties expressly waived any rights in each other's property created "by virtue of the marriage":

"Except as otherwise provided in Sections Three and Four, neither party, by virtue of the marriage, shall have, or acquire, any right, title or claim in and to the real or personal estate of the other, except as provided in Sections Three and Four, above."

The premarital agreement also included property listings for both parties, identifying the property each brought into the marriage and designating ...


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