Hemmesch v. Bonebrake

Hemmesch v. Bonebrake, 2002 ND 168, 655 N.W.2d 84

Filed Nov. 5, 2002
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2002 ND 168

Nick Hemmesch, Plaintiff, Appellant and Cross-Appellee
v.
Cheryl Bonebrake, Defendant, Appellee and Cross-Appellant

No. 20020119

Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Robert W. Holte, Judge.
AFFIRMED AS MODIFIED.
Per Curiam.
Donald L. Peterson (on brief), Kenner Sturdevant Peterson & Cresap, P.C., P.O. Box 970, Minot, N.D. 58702-0970, for plaintiff, appellant and cross-appellee.
Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., P.O. Box 939, Minot, N.D. 58702-0939, for defendant, appellee, and cross-appellant.

Hemmesch v. Bonebrake
No. 20020119

Per Curiam.

[¶1] Nick Hemmesch appealed from a divorce judgment and challenged the trial court's marital property division and its award of temporary spousal support to Cheryl Bonebrake. Bonebrake cross-appealed and challenged Hemmesch's right to appeal, the trial court's property division, and the court's refusal to award her attorney fees for the divorce action. We conclude Hemmesch did not accept substantial benefits of the divorce judgment and therefore did not waive his right to appeal. See Spooner v. Spooner, 471 N.W.2d 487, 489 (N.D. 1991). Bonebrake concedes there is a clerical error in the trial court's division of the net settlement proceeds from Hemmesch's lawsuit for lost wages against Burlington Northern and Santa Fe Railway Company, and we modify that part of the property division to award Bonebrake $4,895.01 and Hemmesch $9,791.49 from the net settlement proceeds. We summarily affirm the divorce judgment, as modified, under N.D.R.App.P. 35.1(a)(2) and (4). We deny Bonebrake's request for attorney fees for this appeal.

[¶2]Gerald W. VandeWalle, C.J.
Mary Muehlen Maring
William A. Neumann
Dale V. Sandstrom
Carol Ronning Kapsner