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Martire v. Martire

Supreme Court of North Dakota

March 15, 2016

Michael P. Martiré, Plaintiff and Appellee
v.
Sandra Hendricksen Martiré, Defendant and Appellant

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

Rodney E. Pagel, Madison Suite, Bismarck, N.D., for plaintiff and appellee.

Joshua M. Feneis (argued) and Krista L. Andrews (on brief), Fargo, N.D., for defendant and appellant.

Lisa Fair McEvers, Daniel J. Crothers, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.

OPINION

Page 728

McEvers, Justice.

[¶1] Sandra Hendricksen Martiréappeals from an amended divorce judgment modifying Michael Martiré 's child support obligation and leaving unaltered his spousal support obligation. We conclude the district court did not err in refusing to modify Martiré 's spousal support obligation. We further conclude the court failed to follow the Child Support Guidelines in setting Martiré 's child support obligation. We affirm in part, reverse in part, and remand for further proceedings.

I

[¶2] This is a continuation of " contentious" divorce proceedings between parties who " accumulated significant assets during their marriage." Martirév. Martiré, 2012 ND 197, ¶ 2, 3, 822 N.W.2d 450. The parties were divorced in 2010 after a nearly 20-year marriage and they were awarded joint primary residential responsibility for their two sons. Id. Hendricksen Martiréwas awarded primary residential responsibility for their daughter. Id. at P 3. Martiréwas ordered to pay child support for the children in the amount of $6,127 per month and spousal support to Hendricksen Martiréin the amount of $5,000 per month until she either dies, remarries or attains the age of 65, whichever occurs first. Id. Martiréwas awarded $2,027,416 of the net marital estate and Hendricksen Martiréwas awarded $2,033,676 of the net

Page 729

marital estate. Id. at P 3. This Court affirmed the district court's decision on joint primary residential responsibility and related divorce issues in Martiré, at P 1, 34. The parties have filed numerous motions since then, resulting in two modifications of child support, but those orders were not appealed.

[¶3] In July 2014, Martirémoved to modify his child support obligation after the second of the parties' children entitled to support graduated from high school. Hendricksen Martiréresponded with her own motion to modify child support, and claimed Martiréfailed to comply with several of his court-ordered obligations. Following a hearing, the district court, after offsetting Hendricksen Martiré 's child support obligation from Martiré 's child support obligation, ordered Martiréto pay $2,314 per month for the remaining child entitled to support. The court refused to modify Martiré 's spousal support obligation. The court also resolved numerous other motions that are not challenged in this appeal.

II

[¶4] Hendricksen Martiréargues the district court erred in refusing to modify her spousal support award.

[¶5] Because of the copious motions filed by the parties in this case, the district court requested an " identification of motions to be resolved" at the December 2014 hearing. In Hendricksen Martiré 's six-page response to the request, she informed the court:

Sandra intends to bring an additional Motion asking for consideration of additional issues at the hearing on December 19, 2014 related to the following: a. Correction of past errors in support awards based on recent income information not provided by Michael until September 24, 2014 which shows that the amount of support awards made to Sandra for the past 6 years have been grossly mistaken because the court has relied on income figures for Michael that have been grossly understated.

However, Hendricksen Martirédid not file a formal motion to modify spousal support. The court in its decision did not address spousal support, except to note " [t]here having been no motion filed by Sandra seeking to amend or modify spousal support, her verbal request is denied."

[¶6] Hendricksen Martiréargues she presented sufficient documentation for the district court to consider her request for modification of spousal support a " motion" under N.D.R.Ct. 3.2 and to rule on the merits. We disagree. First, N.D.R.Ct. 3.2(a)(1) addresses motions and provides in part: " Notice must be served and filed with the motion." There was no notice provided or motion made to modify spousal support. Second, the register of actions in this case consists of hundreds of filed documents since the original divorce. When a litigant leads the court to believe a motion will be filed but the motion is not filed, it is patently unreasonable to suggest that the court be faulted for failing to divine from voluminous documents or a verbal request whether a motion was brought. The court did not err in refusing to address spousal support.

III

[¶7] Hendricksen Martiréargues the district court made several errors in calculating Martiré 's child ...


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