Reyes v. Reyes

FOR PUBLICATION APPEALS NOS. 01-002-GA & 01-003-GA (Consolidated) IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS ____________________________________ BRIAN P. REYES, Plaintiff-Appellee, v. JEANETTE P. REYES, Defendant-Appellant. ____________________________________ Civil Action No. FCD-DI-97-0167 ____________________________________ OPINION Cite as: Reyes v. Reyes, 2004 MP 1 Argued and submitted March 21, 2002 Decided January 15, 2004 Attorney for Appellant: Attorney for Appellee: Stephen J. Nutting, Esq. Yoon H. Chang, Esq. White, Pierce, Mailman & Nutting Pedro M. Atalig, Esq. P.O. Box 5222 Atalig & Chang Saipan, MP 96950 P.O. Box 504399 Saipan, MP 96950  BEFORE: Castro and Manglona, Associate Justices and Cabullido, Justice Pro Tem. CASTRO, Associate Justice: ¶1 Jeannette P. Reyes (“Jeannette”) and Brian P. Reyes (“Brian”) appeal and cross- appeal, respectively, from the trial court’s December 27, 2000, decision regarding the dissolution of the parties’ marriage and the distribution of marital property. The appeals were consolidated on August 5, 2003. The notices of appeal being timely, this Court has jurisdiction in accordance with N.M.I. Const. art. IV, § 3 and 1 CMC § 3102(a). We AFFIRM in part, REVERSE in part and REMAND with instructions. ISSUES PRESENTED AND STANDARD OF REVIEW ¶2 The issues brought on appeal consist of the following: I. Did the trial court err in finding November 21, 1997, to be the date of the parties’ separation? II. Did the trial court err by making a prohibition against remarriage a condition of Jeannette and the minor children’s occupancy of the family home and by requiring Jeannette to pay nominal rent to Brian? III. Did the trial court err in granting Jeannette occupancy of the Papago House for 10 years and ordering Brian to maintain the premises? IV. Did the trial court err in not crediting Brian for child support payments made for an emancipated child? V. Did the trial court abuse its discretion in declining to consider marital fault in the distribution of marital properties? VI. Did the trial court abuse its discretion in declining to find marital waste? VII. Did the trial court err in valuing BPR Professional Services at $551,349.09? VIII. Did the trial court abuse its discretion in finding that accounts in the First Savings and Loan Bank held in Brian’s name, the name of third parties, or in the name of BPR Professional Services were marital property?  IX. Did the trial court err in finding that the estate owed $42,000 to Sabina Pangelinan? X. Did the trial court abuse its discretion by holding that the dividends from UMDA and Mobil stocks were marital property? XI. Did the trial court abuse its discretion in treating the improvements constructed on lots 514 NEW 7 and 514 NEW 8 as marital property? XII. Did the trial court err in finding that Jeannette’s marital property rights in the Dan Dan home were barred by the statute of limitations pursuant to 8 CMC § 1822? XIII. Did the trial court err in finding that transmutation of separate property to marital property is not an automatic result of the construction of improvements on that property with marital funds? XIV. Did the trial court commit clear error in granting attorney’s fees? XV. Does 1 CMC § 3404 that directs the CNMI Judiciary to issue opinions within one year violate the separation of powers doctrine? ¶3 This Court reviews the trial court’s orders made under 8 CMC §§ 1811, et seq., the Commonwealth Marital Property Act of 1990 (“MPA”), for abuse of discretion. See Robinson v. Robinson, 1 N.M.I. 81, 86 (1990). The division of marital property is subject to the broad discretion of the trial court, whose determinations will be upheld on appeal unless there is a clear showing of an abuse of discretion. McNett v. McNett, 501 P.2d 1059, 1061 (Idaho 1972). Whether the trial court correctly classified and distributed the parties’ real property is a mixed question of law and fact. While mixed questions of law and fact are usually reviewed de novo, see Agulto v. Northern Marianas Inv. Group Ltd., 4 N.M.I. 7, 9 (1993), the trial court’s findings of fact are reviewed under the clearly erroneous standard, see id. at 10; Rosario v. Quan, 3 N.M.I. 269, 276-77 (1992), and we will not reverse those findings unless we are left with a firm and definite conviction that clear error has been made. Camacho v. L & T Int’l Corp., 4 N.M.I. 323, 325 (1996).  FACTUAL AND PROCEDURAL BACKGROUND ¶4 Jeannette and Brian were married on June 13, 1980, and the couple had four children together: Joshua, Brian, Jr., Marjorie and Joaquina. ¶5 At some point in the marriage, Brian initiated an extramarital affair with Emily Siobal (“Ms. Siobal”), who bore him two daughters. As a result of marital indiscretions and abuse, the marriage between Jeannette and Brian suffered and eventually broke down. On November 21, 1997, Brian filed for divorce. ¶6 On February 2, 1998, the trial court issued an order allowing Jeannette to occupy the marital residence in Papago. In addition, Jeannette retained custody of the minor children and was awarded all rental income from the Twin Bear apartment complex, constructed by the parties during their marriage. The trial court also ordered Brian to pay temporary child support. ¶7 On August 4, 1998, the matter of Brian’s divorce request was tried. The trial court found insufficient evidence to support a divorce pursuant to 8 CMC § 1331(h) (separation of the parties for more than two years). However, Brian stipulated that Jeannette was entitled to divorce pursuant to 8 CMC § 1331(a) (adultery) and (b) (cruel treatment and neglect) and, on August 11, 1998, the trial court granted divorce. ¶8 The division of marital property was tried at the beginning of March 1999. ¶9 In March of 2000, the parties filed their respective responses noting corrections and objections to the trial court’s proposed listing of marital properties proffered the previous month. ¶10 On September 8, 2000, the trial court determined that, for purposes of the MPA,1 the parties separated on November 21, 1997, when Brian filed for divorce. ¶11 The trial court issued its ruling on December 27, 2000, and on January 26, 2001, Jeanette filed her notice of appeal. On February 8, 2001, Brian filed his notice of cross- appeal.2 ANALYSIS I. The Trial Court Correctly Determined the Parties’ Date of Separation. ¶12 Under the MPA, the date of separation for purposes of divorce is determined when the parties are living separately and apart with no “intent to resume the marriage relationship.” 8 CMC § 1813(h). To determine if there has been a complete and final end to the marriage, the court looks at the parties’ conduct, including relevant evidence such as joint vacations or visits, efforts at reconciliation, and the filing of taxes. In re Marriage of von der Nuell, 23 Cal. App. 4th 730, 736-37 (Cal. Ct. App. 1994); see also Hanan v. Hanan, Civ. No. 93-0643 (N.M.I. Super Ct. Dec. 1, 1994) (Decree of Divorce: Equitable Distribution of Marital Estate at 7-8). Determining a separation date requires close inspection of the parties’ conduct, as “many marriages are on the rocks for protracted periods of time and it may be many years before the spouses decide to formally dissolve their legal relationship.” In re Marriage of von der Nuell, 23 Cal. App 4th at 736. The trial court concluded that the parties continued to function socially and financially as a married couple up until the day Brian filed for divorce. We agree. 1 The Marital Property Act is codified at 8 CMC §§ 1811, et seq. 2 This Court consolidated the appeals on August 5, 2003, because they originated from the same civil case, relied on the same nucleus of fact and presented similar issues on appeal. ¶13 Brian and Jeannette had a difficult marriage, by any definition, but the record clearly shows that they made good faith attempts to reconcile, including resuming cohabitation for a period of weeks in March 1996, before finally filing for divorce in November 1997. The MPA calls for a determination of the date of a true breakdown of the marriage with no present intent to resume the marriage relationship, 8 CMC § 1813(h). The record shows that Brian moved out of the family home on more than one occasion, but he did not take all of his personal possessions, including clothing. He also maintained a set of keys and came and went freely. Further, Brian continued to give gifts to his wife on birthdays and holidays, dined at the house approximately three times a week, and paid taxes jointly with Jeannette until late 1997. ¶14 In light of the relevant evidence presented as to the difficult nature of the marriage, the continuing social and financial unity of the couple, and ongoing attempts toward reconciliation up until the very end of the marriage, the trial court did not commit clear error in determining November 21, 1997, to be the parties’ date of separation. II. The Trial Court Abused Its Discretion by Imposing Certain Conditions on Jeannette’s Occupancy of the Family Home. ¶15 Abundant precedent supports the trial court’s judgment giving Jeannette the right to the exclusive use and possession of the marital home until such time as the youngest of the minor children reaches majority. Berard v. Berard, 749 A.2d 577 (R.I. 2000); Kanouse v. Kanouse, 549 So. 2d 1035, 1037 (Fla. Dist. Ct. App. 1989); Cabrera v. Cabrera, 484 So. 2d 1338 (Fla. Dist. Ct. App. 1986); Zeller v. Zeller, 396 So. 2d 1177 (Fla. Dist. Ct. App. 1981). However, the trial court also ordered that Jeannette’s occupancy rights would terminate if she remarries or cohabits with an unrelated adult. Jeannette argues that the trial court abused its discretion by imposing these conditions on  her occupancy of the family home, as it negatively affects the children’s stable home life. ¶16 Court orders that act to restrain a party to a divorce from remarriage, other than for cessation of alimony payments, have been deemed unenforceable or void as being against public policy. Cox v. Cox, No. 04-97-00951-CV, 1998 Tex. App. LEXIS 6852; Isenhower v. Isenhower, 666 P.2d 238, 241 (Okla. Ct. App. 1983). Also, attempts to connect the forfeiture of rights to occupancy of the family home with remarriage have been held to be unenforceable. S.W. Bell Tel. Co. v. Gravitt, 551 S.W.2d 421, 427 (Tex. Civ. App. 1976). The court in Ales held that a woman given exclusive use of the family home after divorce should not be forced to move out because her paramour moved in, despite the fact that she agreed to the condition in a prior settlement agreement, because her need for spousal support remained unchanged. In re Marriage of Ales, 592 N.W.2d 698 (Iowa Ct. App. 1999). Brian attempts to use the Ales case to support the proposition that prohibitions against remarriage or cohabitation are enforceable. This argument is untenable as the prohibition against remarriage or cohabitation in this case is based on occupancy of the family home and is thereby distinguishable from the holding in Ales, as the Ales court focused on the effect of remarriage or cohabitation on the obligations to pay alimony upon changed circumstances. Id. at 703. ¶17 The Ales case is instructive in its holding that provisions allowing the custodial parent to remain in the family home are primarily made to provide stability for the children. Id. at 704. The overarching consideration of this Court in determining the propriety of Jeannette’s continued occupancy of the family home is protecting the best interests of the children. See Robinson, 1 N.M.I. at 88. As written, the trial court’s order  serves no rational or legitimate purpose, as it would force the children from their home if their mother remarries. ¶18 The trial court abused its discretion in conditioning its grant of occupancy of the family home to Jeannette so long as she does not remarry or cohabitate with any unrelated male. The trial court’s decision conflicts with this Court’s policy toward protecting children, advocating families, and championing stability in the familial household and moreover is unenforceable. While courts have found modification of a spousal support agreement based on remarriage to be proper, even if it affects occupancy or maintenance of the family home,3 it is improper to condition the occupancy of the family home by a spouse who is the primary caregiver to a couple’s children on that spouse remaining single. We reverse and remand with instructions to delete the provision restricting Jeannette’s occupancy of the family home based on remarriage or cohabitation with an unrelated male. ¶19 The trial court further abused its discretion by ruling that Brian should receive a nominal payment or credit of $57.39 per month for the rental value of the Papago home. The court was misguided in relying on In re Marriage of Ales for the proposition that a custodial parent must pay rent, when that court stated that the parent/occupant only receives an ancillary benefit from residing in the family home while the primary beneficiaries of the right are the minor children. In re Marriage of Ales, 592 N.W.2d at 704. ¶20 Ostensibly, the trial court awarded nominal rent to Brian to offset Jeanette’s continued use of the family residence. However, Brian’s maintenance and upkeep of the family home is mainly for the children’s benefit and is based on his duty as a parent to 3 See In re Marriage of Ales, 592 N.W.2d 698 (Iowa Ct. App. 1999).  support his children. See Pille v. Sanders, App. No. 99-009 (N.M.I. Sup. Ct. June 28, 2000) (Opinion at 7) (citing Seegert v. Zietlow, 642 N.E.2d 697, 703 (Ohio Ct. App. 1994). Since the children were rightly allowed to continue living in the family home and Jeanette, the primary care giver, was granted continued occupancy of the home to care for the children, it is problematic to then charge her rent. In this instance, the nominal rent charged by Brian to Jeannette attaches to the children’s occupancy of the family home and is inconsistent with the Commonwealth’s strong interest in protecting children. See Francis v. Welly, App. No. 98-034 (N.M.I. Sup. Ct. Dec. 28, 1999) (Opinion at 5); See also In re N.T.M., App No. 98-022 (N.M.I. Sup. Ct. Dec. 14, 1999) (Opinion at 3). Under the circumstances of this case, Brian may not charge a rental fee for Jeannette’s occupancy of the family home. ¶21 The trial court abused its discretion by allowing Brian to charge a nominal rental fee that attached to the minor children’s occupancy of the familial home. This is especially true when that rental fee has little impact on the financial status of the owner of the house or his ability to maintain and repair the premises. Jeannette’s occupancy of the family home enables her to be a reliable parental presence and provides a tangible benefit to the children. We reverse and remand for instructions to strike the provision awarding rental value of the family home to Brian. III. Occupancy and Maintenance of Papago House Were Properly Assigned. ¶22 As stated supra, ensuring the safety and well being of the parties’ children is of the utmost importance in divorce proceedings. Robinson, 1 N.M.I. at 88. When assigning a parent’s child support obligation to minor children, the court assesses all relevant facts, including the relative financial means and earning capacity of each parent.  8 CMC § 1715(e). After carefully reviewing the individual financial affidavits presented by each parent, the trial court deemed Jeannette to be in a superior financial position based on her cash flow. The trial court assigned Jeannette 83% of the costs associated with supporting the children. When viewed with his assignment of 17% of child support obligations and his considerable cash reserves4 and assets, including title to the Papago property, Brian’s complaints regarding his obligation to maintain the children’s home in Papago are not well founded. ¶23 The trial court did not abuse its discretion in finding that the best interests of the minor children required an order allowing Jeannette, as custodial parent, to continue to occupy the marital home as the primary caretaker while ordering Brian, as owner of the property, to pay for maintenance of the children’s residence. IV. Child Support Payments Correctly Accounted. ¶24 In its decision on December 27, 2000, the trial court ordered Brian to pay child support of $657.395 per month for the minor children. Reyes v. Reyes, Civ. No. 97-0167 (N.M.I. Super. Ct. Dec. 27, 2000) (Decision Following Trial at 33-34) (“Decision Following Trial”). After trial and prior to its decision, the trial court ordered Brian to pay $1,000 a month as reasonable child support based on the parties’ financial affidavits. On September 25, 1999, Marjorie Reyes turned eighteen and became an emancipated adult. 8 CMC § 1106. Brian filed a motion to reduce his child support obligation based on the fact that Marjorie was no longer a minor. The court heard the motion and stated that there was no reason Brian would have to continue providing support for Marjorie, 4 While determining the parties’ respective child support obligations, the trial court noted that Brian’s income decreased, but that cash reserves in checking and savings accounts increased. 5 The court ordered Jeannette to shoulder child support of three thousand two hundred nine dollars and sixty-one cents ($3,209.61) per month.  but that resolution of the matter would be included in the decision and order to be issued the following month. Brian contends that the trial court’s decision improperly failed to credit him for $342.61 paid monthly in temporary child support that exceeded his final child support obligation amount. ¶25 It is well settled that child support payments are for the benefit of more than one child and that the emancipation of one child does not automatically affect the liability of the parent for the full amount. Parker v. McDaniel, 288 So. 2d 86, 87 (La. Ct. App. 1974); Becker v. Becker, 387 A.2d 317, 319-20 (Md. Ct. Spec. App. 1978); Jerry v. Jerry, 361 S.W.2d 92 (Ark. 1962); Rhodes v. Gilpin, 264 A.2d 497, 499 (D.C. 1970); Lusk v. Lusk, 537 S.W.2d 874, 878 (Mo. Ct. App. 1976); Beaird v. Beaird, 380 S.W.2d 730, 732 (Tex. Civ. App. 1964). To minimize the disruption to a child’s life brought on by divorce, a child support award seeks to provide the children with the same or similar standard of living they would have enjoyed had the marriage not dissolved. Hamiter v. Torrence, 717 N.E.2d 1249, 1253 (Ind. Ct. App. 1999). The costs associated with raising children are not static and the needs of one child can be vastly different than the next. Becker, 387 A.2d at 319. Further, the continual rise in the cost of living, inflation, and other factors should mitigate pro rata reductions if a single child reaches majority. Id. Unforeseen costs such as medical or dental expenses necessitate that child support not be based on penurious rules. Parker, 288 So. 2d at 87. ¶26 In its decision, the trial court declined to include any credit to Brian for temporary child support payments made after one of the parties’ children reached the age of majority. The temporary child support payments were based on Brian’s financial position relative to Jeannette and meant for the care of the children as a whole. The trial  court did not abuse its discretion in declining to credit Brian for temporary child support payments made after one of the children reached the age of majority during the temporary child support period. V. The Trial Court Properly Declined to Include Fault as a Factor in the Distribution of the Marital Estate. ¶27 In Ada v. Sablan, this Court defined the patte pareho6 doctrine and overruled the antiquated common-law principle that all property acquired during marriage belonged to the husband separately. Ada v. Sablan, 1 N.M.I. 415, 423-24 (1990). Following the direction of the equal protection clause of the Commonwealth Constitution, Article I, Section 6,7 patte pareho recognizes that both spouses have an equal ownership interest in any property acquired during marriage unless it is shown that such property belongs solely to one party and that marital property is subject to equitable distribution on divorce. Id. at 426-29. The MPA codifies the patte pareho doctrine in Commonwealth law and is based on the UNIF. MARITAL PROP. ACT, 9A U.L.A. 97 (1987). See Commission Comment at 8 CMC §1811. A clear aim of the MPA is ensuring that each spouse has an undivided one-half interest in marital property. 8 CMC § 1820(c). Within the dictates of the MPA, the trial court has broad discretion in dividing marital property on divorce. See Dobbs v. Dobbs, 452 So. 2d 872, 873 (Ala. Civ. App. 1984); Williams v. Williams, 375 S.E.2d 349, 350 (S.C. Ct. App. 1988); In re Marriage of Popp, 767 P.2d 871, 873 (Mont. 1989). With this background, we turn to the consideration of fault in dividing property on divorce. 6 Patte pareho is a Chamorro custom giving both spouses an equal ownership interest in property acquired during marriage. 7 Article I, Section 6 reads; “Equal Protection. No person shall be denied the equal protection of the laws. No person shall be denied the enjoyment of civil rights or be discriminated against in the exercise thereof on account of race, color, religion, ancestry or sex.” ¶28 Many jurisdictions hold that a court should not consider fault or marital misconduct in dividing property on divorce. See Markham v. Markham, 909 P.2d 602, 608 (Haw. Ct. App. 1996) (spousal misconduct is irrelevant in determining the division of marital property); In re Marriage of Griffin, 860 P.2d 78, 79 (Mont. 1993). Some jurisdictions that consider marital fault do so when it relates to present or future financial circumstances of the parties, or in cases where the fault is so egregious that the failure to penalize it would be inequitable. In re Marriage of Sommers, 792 P.2d 1005, 1010-11 (Kan. 1990). Also, in jurisdictions where fault is considered, it is but one of the relevant factors analyzed and it does not preclude an equal distribution. Noah v. Noah, 491 So. 2d 1124, 1128 (Fla. 1986). Still other jurisdictions explicitly exclude consideration of marital fault but recognize economic fault by considering the effect of marital misconduct on parties’ finances, including one party’s depletion or dissipation of marital assets. Romano v. Romano, 632 So. 2d 207 (Fla. Dist. Ct. App. 1994); see also Blickstein v. Blickstein, 472 N.Y.S.2d 110, 113-14 (N.Y. App. Div. 1984). ¶29 Commonwealth law recognizes infidelity as grounds for divorce,8 but an extramarital affair does not necessarily involve gross fiscal mismanagement or squandering of marital assets that may continue to harm an innocent spouse long after a divorce decree is final. See In re Marriage of Steadman, 821 P.2d 59, 60 (Wash. Ct. App. 1991). The potentially devastating, long-term economic consequences from a breach of fiduciary duty to one’s spouse are distinct from adultery. Adultery, on its own, does not provide a compelling reason for making an unequal disposition of community property. Id. 8 8 CMC § 1331(a). ¶30 Patte pareho dictates that marital assets be divided equally on divorce and does not contemplate assessment of fault due to marital misconduct. See Ada v. Sablan, 1 N.M.I. 415, 423-24 (1990). The effect of martial infidelity is distinguishable from a breach of fiduciary duty or the squandering of marital assets, which may affect the distribution of marital assets and require restitution to the estate to mitigate one party’s misdeeds. It is thereby the holding of this Court that the trial court did not abuse its discretion in declining to include adultery as a pertinent factor in the division of marital assets. VI. The Trial Court Did Not Receive Proof of Marital Waste. ¶31 Brian claims that Jeannette committed marital waste by mishandling income from various marital properties including the Oregon house, the Twin Bear Apartments and a document handling business. It is well established that a fiduciary relationship exists between husband and wife and that each owes a duty to the other, including the duty to properly manage marital property under his or her control. 8 CMC § 1814(a). It follows that the victim of a breach may seek damages from the breaching party. In the Northern Mariana Islands, a remedy is provided to the claimant spouse for breach of the duty of good faith resulting in damage to the claimant spouse’s present undivided one-half interest in marital property. 8 CMC § 1831(a). Also clear in Commonwealth law is that each spouse is entitled to an undivided one half interest in all income generated during the marriage. 8 CMC § 1820(d). ¶32 As the party claiming harm from marital waste, Brian carries the burden of demonstrating that the record supports his contentions and must reference specific portions of the record in support of his complaints on appeal. Com. R. App. P. 28(a)(4);  see also Greer v. Greer, 624 So. 2d 1076 (Ala. Civ. App 1993). Brian cites to a record of deposits and withdrawals from the Twin Bear Apartments as evidence of marital waste but makes no specific allegations as to actual misuse or mismanagement of that income. Appellee’s Excerpts of Record at 149 and 158. Instead, Brian argues that this Court should find marital waste because use of the rental income from the Twin Bear Apartments is not adequately accounted for during the course of the parties’ marriage. The lack of evidence presented to support Brian’s theories of marital waste of the Twin Bear income or any evidence at all of Jeannette’s mishandling of marital funds, prevents this Court from finding that marital waste occurred. ¶33 The trial court’s broad discretion in dividing marital property, including a determination whether marital waste took place, will be upheld unless there is a clear showing of an abuse of discretion. See McNett v. McNett, 501 P.2d 1059, 1061 (Idaho 1972). Without specific evidence to support claims of misuse, dissipation or gross mismanagement of marital assets, this Court will not overturn the lower court. As such, we find that after reviewing the scarce evidence before it, the trial court did not abuse its discretion in declining to find marital waste. VII. The Trial Court Correctly Valued BPR Professional Services. ¶34 Parties each submitted a copy of BPR Professional Services’ (“BPR”) December 31, 1997, Balance Sheet (“balance sheet”) and a Profit and Loss Statement from June 30, 1998. Decision Following Trial at 3. The balance sheet submitted to the trial court quoted the equity of BPR to be $551,349.09. Appellee’s Excerpts of Record at 139. The trial court also received testimony from Brian who certified the balance sheet as accurate. Decision Following Trial at 3. The court-appointed auditor, David Burger, testified that  performance of a separate audit was hindered due to Brian’s failure to cooperate. Id. at 4. The trial court received no other evidence relative to the value of the business other than the balance sheet and found its valuation to be “reasonable, if not conservative.”9 Id. ¶35 This Court reviews the trial court’s orders made under the MPA for abuse of discretion and will not reverse an order unless the record is devoid of any reasonable evidence to support it. See Robinson v. Robinson, 1 N.M.I. 81, 86-89 (1990). Attempts to attain a separate audit of BPR were frustrated by Brian’s lack of cooperation, and the trial court had no information beyond the balance sheet before it as to the actual value of BPR. As such, it reached the reasonable conclusion that the value on the balance sheet was correct. Therefore, the trial court did not abuse its discretion in valuing the assets of BPR based on the balance sheet because the parties certified the balance sheet as accurate, the court appointed auditor was prevented from conducting a separate audit, and no other evidence of the value of BPR was offered. VIII. The Trial Court Did Not Abuse Its Discretion in Classifying Accounts Held in the First Savings and Loan Bank as Marital Property. ¶36 The trial court was called upon to determine whether the First Savings and Loan Bank (“FSLB”) accounts in Juan CH Reyes’ name and in the names of third parties were marital property. It is well established that all property acquired during marriage is presumed to be marital property and the party seeking to exclude that property from equal division on divorce has the burden of overcoming this presumption by tracing assets to their separate source. Ada v. Sablan, 1 N.M.I. 415, 428 (1990). The presumption is nearly conclusive and may only be overcome by clear and convincing 9 “[A] 1998 Profit and Loss Statement listed BPR’s average monthly income for the first six months of 1998 to be $16,232.60. If the value of BPR is indeed only $551,349.09, then these figures represent an astounding return of approximately 35% per annum on the owner’s equity.” Decision Following Trial at 4.  evidence with any doubts to be resolved in favor of a finding of marital property. Beam v. Beam, 569 P.2d 719, 725 (Wash. Ct. App. 1977); Kennedy v. Kennedy, 379 P.2d 966, 969 (Ariz. 1963); Porter v. Porter, 195 P.2d 132, 136 (Ariz. 1948). Self-serving statements are not enough to overcome the presumption towards classifying property as marital. In re Marriage of Janovich, 632 P.2d 889, 891 (Wash. Ct. App. 1981); Thaxton v. Thaxton, 405 P.2d 932, 934 (N.M. 1965); Carlson v. McCall, 271 P.2d 1002 (Nev. 1954); Shanafelt v. Holloman, 296 P.2d 752 (N.M. 1956). Also instructive is that an account held jointly with a third person does not, on its own, determine that the account is not marital property. See In Re Marriage of Stumpf, 932 P.2d 845, 847 (Colo. Ct. App. 1996). ¶37 As the party claiming that the funds in the FSLB accounts in question belonged to him or third parties, Brian has the burden of proving to the trial court that the funds derived from his separate assets. Decision Following Trial at 20 (citing Santos v. Santos, App. No. 98-029 (N.M.I. Sup. Ct. May 10, 2000)(Opinion at 6)). The tracing of separate assets may only be met by strong and nearly conclusive evidence that the funds used to open each bank account at issue may be traced to initial infusions of separate property. Porter, 195 P.2d at 137. At trial, Brian testified that the FSLB accounts at issue consisted of his separate funds, belonged to a third party, or were included in the division of marital property as part of the funds included in the BPR balance sheet. The trial court disagreed. ¶38 The funds in question can be divided into the following categories: Juan CH Reyes Accounts; Manobu Yamazaki Account; Children’s Accounts; and Ms. Siobal’s Accounts.  A. Juan CH Reyes Accounts ¶39 Brian claims that accounts CD 03-10-01-017967, SV-03-07-039115, and SC-03- 07-41590 were the separate property of his father, Juan CH Reyes. Trial testimony from Juan CH Reyes and Susie Williams, a representative of FSLB, as well as withdrawal slips with Juan CH Reyes’ signature were admitted into evidence in an effort to prove that the money belonged to Juan CH Reyes. Brian offered the evidence to show that Juan CH Reyes controlled the funds in accounts in his name and that the money should not be classified as marital property. ¶40 However, that testimony was discredited by evidence of a withdrawal of approximately $80,000 from a marital account (BPR account # SV-03-07-030916) that coincided with a deposit of the same amount into account SV-03-07-051490, claimed by Brian to be his separate property. Decision Following Trial at 19. In Santos v. Santos, the Court held that mixed property (a combination of marital and other property) is presumed to be marital property unless the component of the mixed property claimed to be separate property can be traced. Santos, (Opinion at 6) (citing 8 CMC § 1829(a)). The party claiming separate ownership of property is charged with the burden of proving that the property is indeed separate and failure to do so results in a finding of marital property. Ada v. Sablan, 1 N.M.I. 415, 428 (1990); Barton v. Barton, 973 P.2d 746 (Idaho 1999) (burden on party claiming separate property to trace property to separate source). ¶41 After reviewing the factual record before it, the trial court was unconvinced by Brian’s testimony and found that he failed to trace the monies in the accounts held jointly with his father to separate property. Decision Following Trial at 31. At trial, Brian claimed that account CD-03-017967, with a value of $75,000, belonged to his father,  Juan CH Reyes. However, no evidence was proffered to indicate that the opening deposit on account came from a non-marital source. In fact, in the case of the largest account, the trial court found that the opening deposit undeniably consisted of marital funds. The trial court also noted that Brian damaged his credibility as a witness by failing to reveal the Juan CH Reyes accounts in the course of discovery and attempting to hide their very existence from Jeannette after their marriage collapsed. See Thomas v. Thomas, 690 P.2d 105, 110 (Ariz. Ct. App. 1984). The trial court eventually classified all of the Juan CH Reyes accounts as marital, subject to equal distribution between the parties with Jeannette’s share treated as a credit against any amounts owed to Brian after complete distribution of the marital assets. Decision Following Trial at 31. ¶42 After reviewing the evidence, including the inconsistent testimony from Suzie Williams and Juan CH Reyes10 and the actions by Brian to obfuscate the accounts, this Court does not find clear error in the actions of the trial court that would warrant overturning its factual findings classifying the Juan CH Reyes accounts as marital property. B. Manobu Yamazaki Account ¶43 Jeanette challenges the trial court’s classification of the funds in FSLB account SV-03-07-054247 ($28,437.14) in the name of Manobu Yamazaki as separate property. Brian testified that the funds in the account in Mr. Yamazaki’s name belonged to Mr. Yamazaki as the owner of apartments managed by Brian. Brian claimed that money did not belong to him and was separate from the marital estate. Appellee’s Supplemental Excerpts of R. (“S.E.R.”) at 71-72. 10 Juan did not recall having any accounts with Brian. Decision Following Trial at 19. ¶44 Jeannette’s argument is based on the relatively small number of account transactions in relation to the management of multiple apartments.11 However, the limited transaction history of an account, on its own, does not demonstrate clear error by the trial court in determining that the Yamazaki account was separate property. See generally Camacho, 4 N.M.I. 323. The trial court held that unrebutted trial testimony and exhibits offered into evidence indicated that funds in FSLB account SV-03-07-054247 were held in trust for Mr. Yamakazi to manage apartments and that Brian transferred those funds to Bank of Hawaii account 6879258679. Decision Following Trial at 21. ¶45 The trial court found the presumption toward marital property dispelled and classified the Yamakazi account as separate property. The testimony and exhibits entered into evidence at trial clearly convinced the trial