Amsbaugh v. Amsbaugh

MARING, Justice,

concurring in the result.

[¶ 49] I agree with the result, but write separately to express my views on the issue of the consideration of fault in the division of marital property.

[¶ 50] Our Court has said it is well settled that fault, both economic and non-economic, is a factor the trial court can consider when dividing property. See Erickson v. Erickson, 384 N.W.2d 659, 661 (N.D.1986) (holding that evidence of adultery was properly considered in dividing the parties’ property); Behm v. Behm, 427 N.W.2d 332, 337 (N.D.1988) (holding that the trial court’s consideration of evidence of adultery and misuse of marital property when dividing the parties’ property was *613not clearly erroneous); Heinz v. Heinz, 2001 ND 147, ¶ 5, 632 N.W.2d 443 (holding that evidence of economic and noneconomic fault are proper considerations when dividing marital property); McKechnie v. Berg, 2003 ND 136, ¶ 6, 667 N.W.2d 628 (holding that evidence of economic and noneconomic fault are proper considerations when dividing marital property).

[¶ 51] I agree, however, with former Justices Levine and Meschke that “[m]ari-tal misconduct which is not significantly related to the economic condition of the marriage is not germane to a division of property and should not be considered.” Erickson, 384 N.W.2d at 662 (Levine and Meschke, J.J., specially concurring) (citations omitted). An enlightened view of the marriage relationship is aptly described by Justice Levine in her special concurrence in Eñckson as “a partnership enterprise, a joint venture, to which each party contributes his and her efforts and skills, as agreed upon, either or both within or without the home.” Id. at 663 (citation omitted).

[¶ 52] An equitable division of the property would, therefore, be on the basis of the contributions to the partnership that entitles each to a fair share without consideration of noneconomic fault. Erickson, 384 N.W.2d at 663. For the purposes of property division, only conduct that results in “destruction, squandering or waste of assets” would be relevant. Id. In Hover-son v. Hoverson, our Court defined “[e]co-nomic misconduct [as] misconduct that results in a wasted asset or in the reduction of the net marital estate.” 2001 ND 124, ¶ 24, 629 N.W.2d 573.

[¶ 53] A trial court’s determinations regarding division of marital property are treated as findings of fact that will not be reversed on appeal unless clearly erroneous. Heinz, 2001 ND 147, ¶ 6, 632 N.W.2d 443. A finding of fact is clearly erroneous only if no evidence exists to support it, the court has misapplied the law, or after a review of the entire record, we are left with a definite and firm conviction a mistake has been made. Id. In the present case, there is evidence that Suzanne Amsbaugh’s drinking contributed to the breakup of the marriage and impacted her financial contributions to the marriage. Although I am of the opinion the disparity in the division of assets, approximately one-fourth to Suzanne Amsbaugh and three-fourths to Terry Amsbaugh, is substantial and overly harsh for a 27 year marriage, under our current law, I cannot say it is clearly erroneous.

[¶ 54] Accordingly, I respectfully concur in the result.

[¶ 55] Mary Muehlen Maring