Searching over 5,500,000 cases.

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.

Tuhy v. Tuhy

Supreme Court of North Dakota

February 22, 2018

Samantha Tuhy, Plaintiff and Appellee
Jason C. Tuhy, Defendant and Appellant

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

          Gary D. Ramsey, Dickinson, ND, for plaintiff and appellee.

          Jami L. Arnold, Dickinson, ND, for defendant and appellant.


          McEvers, Justice.

         [¶ 1] Jason Tuhy appeals from a divorce judgment distributing marital property and awarding spousal support and attorney's fees. We conclude the district court's distribution of the parties' remainder interests in property and award of spousal support are not clearly erroneous. We further conclude the court did not abuse its discretion when awarding attorney's fees. We affirm.


         [¶ 2] Jason and Samantha Tuhy were married on June 6, 2003, and had three children during their marriage. The parties separated in February 2016. In May 2016, Samantha filed for a divorce. The parties agreed on all issues regarding parental responsibility and entered into a stipulated parenting plan in February 2017. The district court held a trial on February 8 and 13, 2017 on issues regarding division of property and debts, spousal support, and attorney's fees.

         [¶ 3] The district court entered a memorandum opinion in March 2017. Jason filed a request for reconsideration and clarification of calculations in regard to the property and debts of the parties, as well as calculations used for determining spousal support and child support. The request for reconsideration did not include a request to modify the attorney's fees awarded in the court's first memorandum opinion. The order modifying and clarifying the court's calculations was entered March 31, 2017. A proposed judgment along with the supporting documents were filed on May 1, 2017 by Samantha. Jason filed an objection to the proposed findings and judgment. Jason did not include a challenge to the award of attorney's fees. The court filed a letter to counsel responding to the objection and directing Samantha's attorney to prepare the revised documents. The judgment was entered on May 4, 2017.

         [¶ 4] The judgment ordered Jason to pay Samantha child support in the amount of $2, 439 per month and spousal support in the amount of $1, 000 per month for four years. The district court ordered Jason to pay Samantha attorney's fees in the amount of $5, 956, the amount reflected in the property and debt listing. The court separately designated the parties' remainder interests in real property and awarded them to the party whose family controlled the life estate. To balance the disparity, the court awarded Jason a larger portion of his retirement. The court awarded Samantha one-half of Jason's non-vested shares of Whiting Oil stock. The court further awarded Samantha 25 percent of Jason's 401(k) equaling $36, 274. The court ordered Jason to pay Samantha $158, 782.61, concluding that amount is equal to one-half the difference in the disparity of the net amount received by the parties. The judgment indicated Jason was to pay $50, 000 of that amount within 60 days of the entry of judgment, with the remainder due within 10 years at an interest rate of 6.5 percent on the unpaid balance.

         [¶ 5] Jason then filed a motion for stay of judgment on June 2, 2017, requesting the conveyance of property and payments be stayed pending an appeal to this Court. Jason filed a notice of appeal on June 6, 2017. Samantha filed a response to the motion. On July 18, 2017, the court held a hearing on the motion and denied it on July 21, 2017.


         [¶ 6] As an initial matter, Samantha filed a motion to strike the first issue on appeal of whether the district court erred in its division of property and debts because she believed Jason accepted substantial benefits under the judgment before it was entered. Samantha argued the court's memorandum opinion awarded Jason the marital residence and the award was confirmed in the judgment. Jason then listed the marital residence for sale and Samantha signed the listing agreement. Samantha further argued Jason was awarded financial assets which he continues to have custody, control, and use of. Therefore, Samantha argued by Jason accepting substantial benefits, he waived his right to appeal. Although Samantha argues she is not attempting to have the entire case dismissed on appeal, we have said that spousal support and the division of property are interrelated and intertwined and often must be considered together. Paulson v. Paulson, 2010 ND 100, ¶ 9, 783 N.W.2d 262. Despite her attempt to narrow the issue, Samantha relies on cases requesting dismissal of the case on appeal.

         [¶ 7] "A party moving to dismiss an appeal must clearly establish waiver of the right to appeal by the other party." Lizakowski v. Lizakowski, 2017 ND 91, ¶ 7, 893 N.W.2d 508 (quoting Sommers v. Sommers, 2003 ND 77, ¶ 5, 660 N.W.2d 586). "Generally, an individual that unconditionally, voluntarily, and consciously accepts a substantial benefit from a divorce judgment waives the right to appeal the judgment." Id.

This [C]ourt has sharply limited the rule in domestic cases to promote a strong policy in favor of reaching the merits of an appeal. Before a waiver of the right to appeal can be found, there must be an unconditional, voluntary, and conscious acceptance of a substantial benefit under the judgment. The party objecting to the appeal has the burden of showing the benefit accepted by the appealing party is one which the party would not be entitled to without the decree. There must be unusual circumstances, demonstrating prejudice to the movant, or a very clear intent on the part of the appealing party to accept the judgment and waive the right to appeal, to keep this [C]ourt from reaching the merits of the appeal. Id. (quoting Sommers, at ΒΆ 5). Jason argues he should have been awarded more of the ...

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.