Shawn D. Brew, Plaintiff and Appellant
Jennifer E. Brew, Defendant and Appellee
from the District Court of Stark County, Southwest Judicial
District, the Honorable Dann E. Greenwood, Judge.
W. Lindquist, Dickinson, N.D., for plaintiff and appellant.
Patricia E. Garrity, Bismarck, N.D., for defendant and
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.
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
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
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
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
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
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 ...