Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brew v. Brew

Supreme Court of North Dakota

October 17, 2017

Shawn D. Brew, Plaintiff and Appellant
v.
Jennifer E. Brew, Defendant and Appellee

         Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Dann E. Greenwood, Judge.

          Dennis W. Lindquist, Dickinson, N.D., for plaintiff and appellant.

          Patricia E. Garrity, Bismarck, N.D., for defendant and appellee.

          OPINION

          MCEVERS, JUSTICE.

         [¶ 1] Shawn Brew appeals from a judgment granting him a divorce from Jennifer Brew, distributing their marital property, and ordering him to pay child support. Shawn Brew argues the district court's property distribution is inequitable, the court improperly calculated his child support obligation, and the court erred in ordering him to pay attorney's fees. We affirm.

         I

         [¶ 2] Shawn and Jennifer Brew were married in July 1997. They have two children together. The older child was born in 1998 and was still a minor at the time of trial. They owned a farming and ranching operation and a trucking business.

         [¶ 3] In September 2015, Shawn Brew sued Jennifer Brew for divorce. In May 2016, Jennifer Brew moved to compel discovery, claiming she had made numerous attempts to get Shawn Brew to respond to interrogatories and demands for production of certain documents before seeking court intervention. The district court granted Jennifer Brew's motion to compel and ordered Shawn Brew to provide Jennifer Brew with certain requested documents. The court also ordered Shawn Brew to pay Jennifer Brew $500 in attorney's fees under N.D.R.Civ.P. 37(a)(5)(A) for failing to timely provide discovery responses.

         [¶ 4] On August 7, 2016, Shawn Brew filed a pre-trial statement and requested the court award equal residential responsibility of the children. On August 8, 2016, a pretrial conference was held. On August 15, 2016, Jennifer Brew moved to bifurcate the issue of primary residential responsibility, claiming Shawn Brew disclosed for the first time at the pretrial conference that he intended to contest primary residential responsibility of the children and no discovery about the issue had been done. On August 16, 2016, the parties filed a stipulation, agreeing Jennifer Brew would have primary residential responsibility and decision-making authority of the children. A trial was held on the remaining issues, including property distribution, spousal support, and child support.

         [¶ 5] The district court granted the parties a divorce. The court distributed the marital property, including 603 acres of farmland, and ordered Shawn Brew to receive a net award of $660, 886 and Jennifer Brew to receive a net award of $732, 258. The court awarded primary residential responsibility of the parties' children to Jennifer Brew and ordered Shawn Brew to pay $2, 998 per month in child support for two children, which would be reduced to $1, 949 per month after the older child turns eighteen or is no longer attending high school. The court found Jennifer Brew was in need of spousal support but Shawn Brew did not have the ability to pay, and the court reserved jurisdiction to potentially award spousal support in the future. The court ordered Shawn Brew to pay $5, 000 in attorney's fees.

         [¶ 6] Shawn Brew filed an "Opposition to Court's Property Distribution, " arguing the property was not properly distributed and requesting the court reconsider its distribution of the farmland. The court treated Shawn Brew's filing as a motion to reconsider and denied the motion.

         II

         [¶ 7] Shawn Brew argues the district court erred in distributing the marital property. He claims the court relied on an unwarranted presumption and the distribution was not equitable.

         A

         [¶ 8] Shawn Brew claims the district court relied on an unwarranted presumption when it divided the parties' farmland. He contends the court announced at a pretrial conference that there was a presumption Jennifer Brew should be awarded most of the farmland because the land had been in her family for years and the court placed a burden of proof on him to rebut that presumption.

         [¶ 9] Shawn Brew quoted portions of a transcript for a pretrial conference in his brief and included a page from the transcript in his appendix in support of his argument that the district court relied on a presumption. The transcript is not included in the record. Parties may only include items in the appendix that are part of the record. N.D.R.App.P. 30(a)(1). This Court will not consider documents in an appendix that are not in the certified record. Ihli v. Lazzaretto, 2015 ND 151, ¶ 21, 864 N.W.2d 483; State v. Williams, 2015 ND 297, ¶ 11, 873 N.W.2d 13. The appellant assumes the consequences and risks of failing to file a transcript. Cullen v. Williams Cty., 446 N.W.2d 250, 252 (N.D. 1989).

         [¶ 10] Jennifer Brew moved to strike the parts of Shawn Brew's brief and appendix referring to the pretrial conference transcript, and she requested attorney's fees. This Court has discretion in deciding whether to administer sanctions for failing to comply with the Rules of Appellate Procedure. N.D.R.App.P. 13; Ihli, 2015 ND 151, ¶ 21, 864 N.W.2d 483. We grant Jennifer Brew's motion to strike, and we will not consider the documents in the appendix that are not included in the record or Shawn Brew's references to those documents, but decline to impose sanctions.

         [¶ 11] "When the record does not allow for intelligent and meaningful review of an alleged error, the appellant has not carried the burden of demonstrating reversible error." Holden v. Holden, 2007 ND 29, ¶ 7, 728 N.W.2d 312 (quoting Linrud v. Linrud, 552 N.W.2d 342, 345 (N.D. 1996)). Without the transcript of the pretrial conference there is no evidence in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.