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Lizakowski v. Lizakowski

Supreme Court of North Dakota

July 2, 2019

Tonia Lyn Lizakowski, Plaintiff and Appellee
v.
Adam Jon Lizakowski, Defendant and Appellant and State of North Dakota, Statutory Real Party in Interest

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Thomas R. Olson, Judge.

          Jennifer E. Albaugh, Fargo, N.D., for plaintiff and appellee.

          Kristin A. Overboe, Fargo, N.D., for defendant and appellant.

          TUFTE, JUSTICE.

         [¶1] Adam Lizakowski appeals a district court judgment and post-judgment orders awarding Tonia Lizakowski marital property, primary residential responsibility of the parties' minor children, and attorney's fees. We conclude the court erroneously excluded property from the marital estate. We affirm in part, reverse in part, and remand for further proceedings.

         I

         [¶2] Adam Lizakowski and Tonia Lizakowski began dating in 2002 and started living together in 2003. They were married in 2008 and have two children. Tonia Lizakowski sued for divorce in 2017. After a three-day bench trial in March 2018, the district court awarded Tonia Lizakowski primary residential responsibility of the children and ordered Adam Lizakowski to pay $1, 586 per month in child support.

         [¶3] The district court found the parties had a short-term marriage and awarded Tonia Lizakowski $270, 688 in property and Adam Lizakowski $221, 073 in property. The court excluded from the marital estate $45, 236 resulting from the sale of a home awarded to Tonia Lizakowski in an earlier divorce. The court found the sale proceeds were a premarital asset of Tonia Lizakowski's. The court also awarded Tonia Lizakowski $2, 500 in attorney's fees.

         [¶4] After trial, Adam Lizakowski filed a motion requesting the district court to amend its findings and judgment. The court denied the motion, concluding he presented no new evidence and was requesting the court to reweigh the evidence. The court awarded Tonia Lizakowski $8, 050 in attorney's fees for having to respond to the motion. Adam Lizakowski then moved for an amended order appointing a parenting investigator. The court denied this motion and awarded Tonia Lizakowski $2, 000 in attorney's fees as a sanction against Adam Lizakowski and his attorney.

         II

         [¶5] Adam Lizakowski argues the district court erred in its distribution of marital property.

         [¶6] A district court's distribution of the marital estate is a finding of fact that will not be overturned unless clearly erroneous. Lewis v. Smart, 2017 ND 214, ¶ 10, 900 N.W.2d 812. A factual finding is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence supporting it, or if, although there is some evidence to support it, on the entire record, we are left with a definite and firm conviction a mistake has been made. Id.

         [¶7] Under N.D.C.C. § 14-05-24(1), a district court must equitably distribute the parties' marital property and debts. A court "must start with a presumption that all property held by either party whether held jointly or individually is to be considered marital property." Berg v. Berg, 2018 ND 79, ¶ 7, 908 N.W.2d 705. After including all of the marital assets and debts, the district court must divide the property after applying the Ruff-Fischer guidelines. Lewis, 2017 ND 214, ¶ 10, 900 N.W.2d 812. The Ruff-Fischer guidelines require the court to consider the following factors:

[T]he respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if ...

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