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Holbach v. Holbach

June 30, 2010

LARRY J. HOLBACH, PLAINTIFF AND APPELLEE
v.
RANDOLPH S. HOLBACH, MITCHELL D. HOLBACH, CYNTHIA E. STRONG, CHRISTOPHER S. HOLBACH, AND ALL PERSONS UNKNOWN, CLAIMING ANY ESTATE OR INTEREST IN OR LIEN OR ENCUMBRANCE UPON THE REAL ESTATE DESCRIBED IN THE COMPLAINT, DEFENDANTS RANDOLPH S. HOLBACH, APPELLANT



Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Donald L. Jorgensen, Judge.

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

REVERSED.

[¶1] Randolph Holbach appeals a district court's award of summary judgment to Larry Holbach, granting him quiet title to two quarters of land. We reverse, holding Larry Holbach's title is subject to the conditions set forth in the divorce judgment entered between himself and Judith Holbach.

I.

[¶2] Larry Holbach and Judith Holbach married in 1960 and had four children together. In 1976, Larry Holbach and Judith Holbach entered a contract for deed to purchase two quarters of land as joint tenants from Larry Holbach's parents. Judith Holbach and Larry Holbach divorced in 1983. The divorce judgment, which was entered upon the parties' stipulation, detailed their plan for the two quarters:

With respect to the property purchased on the Contract for Deed dated April 12, 1976, the parties agree as follows:

1. Defendant [Larry Holbach] shall have the right to farm the land until the Contract for Deed is paid in full. Defendant may keep all income from said property and shall pay all expenses, including payments as they come due on the Contract for Deed and all real estate taxes.

2. If Defendant shall cease to actively participate in the farming of the above land prior to the completion of the payments on the Contract for Deed, the parties shall lease said land. The parties agree to split the net income after payment of taxes and payments on the contract for deed and any other expenses connected with said property, as follows: to Plaintiff [Judith Holbach] - 50%; to Defendant - 50%.

3. Upon completion of the payments on said Contract for Deed and so long as Defendant is actively participating in the farming of said land, the Defendant shall have the right to continue farming said land. From the gross profits Defendant shall be paid for farming said land at the going rate at the time for each farming operation, which includes, but is not limited to the cropping, spraying, fertilizer, summer-fallowing and harvesting. That after payment to Defendant for farming said land there shall be deducted all taxes, insurance and other expenses relating to said land. The net profits or losses, if any, shall be divided and borne as follows: Plaintiff - 50%; Defendant - 50%.

4. That in the event Plaintiff and Defendant should mutually desire to sell all or any portion of said land during their lifetimes, the proceeds from said sale shall be divided as follows: to Plaintiff - 30%; to Defendant - 30%; and to the children - 40%, unless otherwise mutually agreed between Plaintiff and Defendant.

5. Upon payment of the last installment due on said Contract for Deed, the parties agree that they shall retain title to the following property as joint tenants:

SW 1/4 of Sec. 33, Twp. 155N, Rge. 83W, Ward County, North Dakota.

NE 1/4 of Sec. 33, Twp. 155N, Rge. 83W, Ward County, North Dakota.

The parties agree that they shall by separate agreement contract to devise said property to their four children, namely, Christopher Scott, Randol[ph] Steven, Cynthia Elizabeth, and Mitchell David, in equal shares.

6. Upon the death of either party, the survivor shall receive 100% of the net income (all income, less all expenses, taxes and payments which may be due) during the remainder of the survivor's natural life. Upon the death of the survivor the property shall be distributed to the children in accordance with the separate agreement above mentioned.

Larry Holbach and Judith Holbach never executed the "separate agreement" referenced in paragraph 5 to devise the property to their four children. In September 2001, Larry Holbach's parents forgave the outstanding debt on the property and issued a quit claim deed, conveying it to Larry Holbach and Judith Holbach as joint tenants with the right of survivorship.

[¶3] In March 2002, Judith Holbach, then Judith Slorby, died. She had executed a will in February 2002 that attempted to convey her interest in the property to the four children by representation. In March 2003, Randolph Holbach, acting as personal representative of Judith Holbach's estate, issued a deed of distribution attempting to convey Judith Holbach's interest in the property to himself and his three siblings. Larry Holbach then brought a quiet title action against the four children. Randolph Holbach denied his father had a right to quiet title to the property, arguing the children had an interest in the property. Larry Holbach moved for summary judgment.

[¶4] The district court granted the motion and issued a judgment quieting title in Larry Holbach. The district court concluded Judith Holbach and Larry Holbach owned the property as joint tenants. The district court stated the joint tenancy was originally created by the 1976 contract for deed, affirmed by the parties in the 1983 divorce judgment, and again confirmed by the 2001 quit claim deed. Because they owned the property as joint tenants, the district court held that, when Judith Holbach died, title immediately passed to Larry Holbach as the surviving joint tenant, and the provision of Judith Holbach's will attempting to convey her interest in the property was inoperative. In addition, the district court found Larry Holbach's title was not restricted by the stipulation for divorce. The district court stated the stipulation demonstrated Judith Holbach and Larry Holbach agreed to execute a separate agreement to devise the property to their four children. However, because they never executed a separate agreement, the district court determined Larry Holbach was not bound to devise the property to the children.

[ΒΆ5] Randolph Holbach now appeals the summary judgment, arguing the stipulation constitutes a valid contract obligating Larry Holbach to devise the property to the four children. Larry Holbach requests double costs and attorney fees, arguing Randolph Holbach's appeal is frivolous and Randolph Holbach inappropriately ...


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