139 N.W.2d 845 (N.D. 1966), 8183, Fischer v. Fischer

Docket Nº:8183.
Citation:139 N.W.2d 845
Opinion Judge:Erickstad
Party Name:Mike FISCHER, Plaintiff and Cross Defendant, Appellant, v. Pauline FISCHER, Defendant and Cross Complainant, Respondent.
Attorney:Duffy & Haugland, Civils Lake, for appellant., John J. Tebelius, Harvey, for respondent. [7] Duffy & Haugland, Devils lake, attorneys for appellant. [8] John J. Tebelius, Harvey, attorney for respondent.
Judge Panel:BURKE, C. J., did not participate. STRUTZ and KNUDSON, JJ., concur. BURKE, C. J., did not participate.
Case Date:January 07, 1966
Court:Supreme Court of North Dakota
 
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Page 845

139 N.W.2d 845 (N.D. 1966)

Mike FISCHER, Plaintiff and Cross Defendant, Appellant,

v.

Pauline FISCHER, Defendant and Cross Complainant,

Respondent.

No. 8183.

Supreme Court of North Dakota.

January 7, 1966

On Rehearing Feb. 14, 1966.

Page 846

Syllabus by the Court

1. For reasons stated in the opinion, we find no agreement between the parties in a divorce proceeding for the division of property acquired through the joint efforts of a husband and wife.

2. In a divorce proceeding the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper. Sec. 14-05-24, N.D.C.C.

3. The power to divide property between the parties in a divorce proceeding is vested in the trial court, and a division by it will not be overturned unless it is shown that the division is unfair and inequitable under the facts and circumstances of the particular case.

4. In a divorce proceeding the court, in rendering the decree of divorce, may assign the homestead or such part thereof as to the court may seem just, to the innocent party. Sec. 14-05-25, N.D.C.C.

5. In a divorce proceeding the division of property to be made by the court depends upon the facts and circumstances of each particular case.

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6. In a divorce proceeding there is no rigid rule for the division of property, but the ultimate object to be sought is an equitable distribution.

7. In determining a division of property between the partied in a divorce action, the court, in exercising its sound discretion, will consider the respective ages of the parties; their earning ability; the duration of the marriage; the conduct of each 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 that time, its income-producing capacity, if any, and whether accumulated or acquired before or after the marriage; and such other matters as may be material.

8. In a divorce proceeding it was not error for the district court to divide land acquired and accumulated through the joint efforts of a husband and wife during approximately 30 years of married life, so that the wife, to whom a divorce was granted on the grounds of extreme cruelty, was awarded a unit of 400 acres of land, including the homestead, and the husband was awarded other farm buildings and 440 acres of land (even though it was contended to be of less value and part of it was separated from the rest by a distance of 9 miles), the division being equitable under all of the facts and circumstances of the case.

9. When an action for divorce is pending, the court in its discretion may require either party to pay any money necessary to prosecute or defend the action. Sec. 14-05-23, N.D.C.C.

10. In a divorce action the necessity for suit money must be ascertained as of the time of the commencement of the action and not as of the time of the appeal from the judgment obtained, lest a person with only potential assets be denied representation at the most crucial stage of the lawsuit.

11. As suit money is in the discretion of the trial court, that court's decision in regard thereto will not be interfered with unless it is shown that the trial court has abused its discretion.

12. An abuse of discretion by a court is never assumed but must be affirmatively established.

13. For reasons stated in the opinion, we find no abuse of discretion by the trial court in awarding to the wife in a divorce action $1,500 for attorney's fees.

Duffy & Haugland, Civils Lake, for appellant.

John J. Tebelius, Harvey, for respondent.

ERICKSTAD, Judge (on reassignment).

This is an appeal by the plaintiff, Mike Fischer, from a judgment of the District Court of Wells County granting a divorce to the defendant and counterclaimant, Pauline Fischer, and awarding her certain real and personal property.

Mr. Fischer brought an action for separation from his wife, who answered by denying the material allegations of his complaint. She counterclaimed, seeking a divorce and 'a just and equitable division of all the real and personal property' belonging to the parties.

In her counterclaim she asked:

* * * that in making such division the Court assign and set over to the complainant, as her sole and separate property and estate, the following real and personal property: 420 acres of land described as follows:

The South Half of the Northeast Quarter (S 1/2 NE 1/4), the Southeast Quarter of the Northwest Quarter (SE 1/4 NW 1/4), the North Half of the Southeast Quarter (N 1/2 SE 1/4) and the Southeast Quarter of the Southeast Quarter

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(SE 1/4 SE 1/4), in Section Thirty-three (33), in Township One Hundred Forty-eight (148), North of Range Seventy-two (72), Wells County, North Dakota,

The West Half of the Southwest Quarter (W 1/2 SW 1/4), the Southwest Quarter of the Northwest Quarter (SW 1/4 NW 1/4), the Northeast Quarter of the Northwest Quarter (NE 1/4 NW 1/4) and the West Half of the Northwest Quarter of the Northeast Quarter (W 1/2 NW 1/4 NE 1/4), in Section Thirty-four (34), in Township One Hundred Forty-eight (148), North of Range Seventy-two (72), Wells County, North Dakota.

Said land being one-half of all land accumulated by the joint efforts of plaintiff and defendant.

(The court set over to Mrs. Fischer all of the real property requested by her except for the West Half of the Northwest Quarter of the Northeast Quarter in Section Thirty-four, Township One Hundred Forty-eight, North of Range 72.)

She also enumerated in her counter-claim all of the personal property owned by the parties and asked for one-half of it. (The court awarded her one-half the value of the personal property.)

On April 22, 1963, the day set for a hearing on an order to show cause, Mr. Joseph J. Funke appeared as attorney for Mr. Fischer and made this statement in open court:

'At this time your Honor, the plaintiff and defendant in the corss-complaint has instituted to responsive pleadings to the counter-claim and we, Mike Fischer, are willing that Mrs. Fischer go ahead with her request for divorce and it may be heard as a default. The only concern is the financial problems that we wish to submit to the Court.

Following submission of testimony on the part of both Mr. and Mrs. Fischer, the trial court rendered its decision, which is set forth in its memorandum opinion, the relevant part of which reads as follows:

'In this case there was no question as to the Defendant's right to have an absolute decree fo divorce and that was previously announced by the Court.

'The parties also agree that a division as nearly equal as possible should be made of the real and personal property. The land seems to be the main source of difficulty, and since the parties cannot agree, the following division will be made.

'The Plaintiff shall have the following:

'Township 148 Range 72

Section 34: NW 1/4 NE 1/4

E 1/2 NE 1/4

Township 146 Range 72

Section 4: SE 1/4

Section 3: SW 1/4

Then the Defendant shall have the following:

Township 148 Range 72

Section 33: SE 1/4 NW 1/4

S 1/2 NE 1/4

N 1/2 SE 1/4

SE 1/4 SE 1/4

Section 34: W 1/2 SW 1/4

SW 1/4 NW 1/4

NE 1/4 NW 1/4

By making this division the Plaintiff will be receiving twenty acres more than he would have had if there had been an equal division. In view of the fact that the land given the Defendant appears to be of greater value, I feel that this twenty acres will offset the better quality land received by the Defendant.

It will be noted that the Court set over to Mrs. Fischer the real property which

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she requested in her counterclaim less 20 acres, or a total of 400 acres of land, and that it set over to Mr. Fischer 440 acres of land, being the remainder.

The court divided the personal property equally, and Mr. Fischer makes no complaint in connection with that division as contained in the amended judgment of February 11, 1964.

Although Mr. Fischer asked for a trial de novo, he has stated in his brief that the only issues are: (1) the division of the farm land; and (2) the award to the wife of attorney's fees.

(The court awarded Mrs. Fischer $1,500 in attorney's fees.)

For this reason we shall consider only these two issues on appeal.

Mr. Fischer argues:

'The main issue in this case is simple. Did the Trial Court divide the farm land on a fifty-fifty basis, as the parties had agreed? We submit the evidence is clear that such a division was not made and that the division decreed is wholly impractical.

In reviewing the pleadings, the exhibits, and the transcript of the proceedings, we find no such agreement. As pointed out earlier, Mrs. Fischer in her counterclaim asked that the court make 'a just and equitable division of all of the real and personal property' owned by the plaintiff and the defendant and that, in making such division, the court assign and set over to the defendant and counterclaimant as her sole and separate property the real property which was described therein. This the court did, with the exception of the 20 acres set over to Mr. Fischer.

The reference thereafter to the fact that the described land was one-half of all of the land accumulated by the joint efforts of the plaintiff and the defendant did not constitute an agreement on her part to accept other land or land which was worth only one-half of the value of all of the land as her part of the division of the property.

Mr. Fischer refers to the following examination of Mrs. Fischer in support of his argument that an agreement existed between the parties that the real estate should be divided equally:

Q. Now you're asking the Court in addition to the divorce for a division of...

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