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Dale Wetzel, Associated Press Writer, Published December 04 2009

North Dakota Supreme Court mulls breast implants’ value

BISMARCK – North Dakota’s Supreme Court is considering whether the value of breast implants should be counted when a divorcing couple is splitting up their assets, a possibility that one justice said could be extended to other medical procedures.

“Do we have any lines to be drawn? Is dental work a marital asset? Is a hip replacement a marital asset?” Justice Daniel Crothers asked attorney Christina Sambor during Supreme Court arguments on Thursday.

Sambor represents Erik Isaacson, of Mandan, who is appealing South Central District Judge Robert Wefald’s decision to exclude the value of his former wife Traci’s breast implants and Lasik vision improvement surgery from a list of their assets and debts.

Sambor said the expense should be included in instances when a medical expense is “clearly cosmetic, elective, (and) non-necessary.” Insurance companies often make those judgments in deciding what to cover, she said.

“Cosmetic surgery is a reality, and people engage in it frequently. It is an area where a significant amount of money can be spent,” Sambor said. “If the court (declines) to consider that on the whole, I think that could be equally problematic.”

On their list, the Isaacsons provided separate estimates of the worth of an assortment of their property, including vehicles, a lawnmower and snowblower, furniture, computers and a large-screen television. Wefald used the list to decide how the couple’s assets should be divided.

Erik Isaacson listed his wife’s breast implants as being worth $5,500, and estimated the eye surgery’s value at $1,000. Had Wefald counted the implants and surgery as assets, Erik Isaacson would have been entitled to other property to balance out the ledger.

Traci Isaacson’s attorney, Sherry Mills Moore, said Erik Isaacson didn’t bring up the issue during the couple’s divorce trial in December 2008, and that he should not be allowed to raise it during his appeal.

In a court filing, Moore said Erik Isaacson hoped to embarrass his wife by listing her breast implants as an asset.

Sambor said Wefald made it pungently clear what he thought of Erik Isaacson’s action.

“I can’t imagine people would actually waste time thinking that breast implants are marital assets. It just defies common sense,” Sambor said, reading Wefald’s remarks from a trial transcript. “I don’t know how you would expect me to award breast implants, if you want me to have them cut out and given to Mr. Isaacson. It is absolutely nonsense.”

Most of Thursday’s arguments consisted of questions about Erik Isaacson’s claims that Wefald’s decision to limit the trial to two days and divide the time equally between the two sides violated his right to cross-examine witnesses. McLeod was not able to query some witnesses because of the limit, and cut short her questioning of Traci Isaacson, Sambor said.

Moore said the time limits applied to attorneys for both sides.

“Trial management is the attorney’s to do. It’s not the judge’s to interpose,” Moore said. “It’s not the judge’s (job) to look over and say, ‘Counsel, you look like you’re wasting a little too much time.’ ”


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