Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
N.D. Supreme CourtSkachenko v. Skachenko, 2012 ND 121
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Opinion of the Court by Kapsner, Justice.
[¶1] Roger Skachenko appeals from a district court order denying his request to use marital estate funds to conduct an evaluation of Kathryn Skachenko's business, a district court order denying his request to include, as a separate asset of the marital estate, a loan owed by Kathryn Skachenko's business to her, and a district court judgment requiring him to pay Kathryn Skachenko's attorney fees. We affirm.
[¶2] Roger and Kathryn Skachenko were married in 1991. Each party had children from prior marriages, but they had no children together. In 1996, Kathryn Skachenko started the business Specialty Sling Co.; she is the sole shareholder. In November 2010, Kathryn Skachenko filed a summons and complaint for divorce. The summons included the restraining provisions required by N.D.R.Ct. 8.4. A trial was initially scheduled for March 29, 2011, but was continued until May 16, 2011. On May 4, 2011, Kathryn Skachenko filed a Motion and Brief for Continuance, to Compel Discovery, for Contempt of Court, and for Sanctions and Attorney Fees. In that motion, Kathryn Skachenko alleged Roger Skachenko: "failed to disclose through discovery and in fact, specifically hid, at least $40,000 in marital assets[;]" supplied answers to interrogatories that "were incomplete, evasive, and . . . even fraudulent[;]" "failed to provide documentation of his property [and mineral] interests[;]" "failed to comply with the restraining provisions of [the summons;]" and "failed to disclose . . . a copy of his 2010 federal tax return and attachments and other financial assets."
[¶3] On May 5, 2011, the district court held a pretrial conference. Following the pretrial conference, the court found Roger Skachenko had failed to comply with discovery requests and the restraining provisions of the summons, ordered Roger Skachenko to provide a supplemental discovery response, and continued trial until November 2011. The court issued an order freezing the parties' marital accounts but did not freeze Roger Skachenko's personal checking account. The court allowed Roger Skachenko to continue receiving his monthly oil royalty checks although he was "prohibited from encumbering, transferring or disposing the asset." Finding Roger Skachenko's actions egregious, the court held him in contempt and reserved the right to impose sanctions against him.
[¶4] In August 2011, Roger Skachenko filed a motion to withdraw funds from the frozen accounts to conduct an evaluation of Specialty Sling Co. The district court denied his motion, stating Roger Skachenko "has delayed the progress of this case and has not properly accounted for funds he has access to." In November 2011, trial was held. After trial, Roger Skachenko moved to include, as a separate asset of the marital estate, a loan owed by Specialty Sling Co. to Kathryn Skachenko. The district court denied the motion as "frivolous" and "not based on sound accounting." On December 16, 2011, the district court entered a judgment granting the parties a divorce and requiring Roger Skachenko to pay $16,450 of Kathryn Skachenko's attorney fees and costs.
[¶5] On appeal, Roger Skachenko argues the district court erred in denying his motion to use frozen funds to conduct an evaluation of Specialty Sling Co. Because Roger Skachenko had access to funds the court had not frozen, the court exercised its discretion in deciding whether to allow him to access the frozen funds, and we review for abuse of discretion. See Waldie v. Waldie, 2008 ND 97, ¶ 11, 748 N.W.2d 683. "A district court abuses its discretion when it acts arbitrarily, capriciously, or unreasonably, or if it misinterprets or misapplies the law." Id.
[¶6] Roger Skachenko contends "all the money used for the evaluation could have been taken out of funds that would later have [been] awarded to Roger [Skachenko] from the marital estate. . . . Also the order prevented Roger [Skachenko] from getting an evaluation of the fair market value of" Specialty Sling Co., without which the "court in this case didn't have any information to determine a fair market value" of the business. Kathryn Skachenko responds Roger Skachenko had access to his own checking account, was receiving income from his employment and oil royalties, and could have used these funds to obtain an expert evaluation of Specialty ...