Anderson v. Anderson

• Citation: 368 N.W.2d 566
• Decision Date: 22 May 1985
• Docket Number: No. 10752,10752
• Parties: Mary J. ANDERSON, Plaintiff and Appellant, v. Charles D. ANDERSON, Defendant and Appellee. Civ.
• Court: United States State Supreme Court of North Dakota

Page 566

368 N.W.2d 566

Mary J. ANDERSON, Plaintiff and Appellant, v. Charles D. ANDERSON, Defendant and Appellee.

Civ. No. 10752.

Supreme Court of North Dakota.

May 22, 1985.

Vogel Law Firm, Mandan, for plaintiff and appellant; argued by Anne E. Summers, Mandan.

Mills & Moore, Bismarck, for defendant and appellee; argued by Sherry Mills Moore, Bismarck.

GIERKE, Justice.

Mary J. Anderson (Mary), appeals from a district court judgment granting her a divorce from Charles D. Anderson (Charles) and dividing the marital property. On appeal, Mary asserts that the trial court erred in making the property division. We reverse and remand for a redetermination of that issue.

Mary and Charles were married in 1967, and they have three children of the marriage: Charles, Jr., born on June 20, 1968; Christian, born on July 31, 1970; and Jennifer, born on November 20, 1974.

At the time of the marriage, Charles owned a one-sixth interest in approximately 280 acres of farmland, including mineral interests, near Underwood, North Dakota, which he had inherited from his father in 1961. No interest in the inherited land was ever transferred to Mary.

During the first two years of their marriage, the couple farmed the land inherited by Charles as well as additional land near Underwood owned by Charles' family. During this time, Mary assisted Charles in running the farm. After farming for approximately two years, Charles worked as a self-employed truck driver until 1977. Mary testified that she taught school from 1971 until Jennifer was born in 1974. Thereafter, she was employed as a substitute teacher. In 1976, the couple purchased a house in Underwood, North Dakota. In 1977, Charles began working for his current employer, North American Coal, and, in 1982, he began participating in its retirement plan. At the time of trial, Charles' annual income was approximately $43,000.

The district court's judgment gave Mary custody of the three minor children, and awarded her $225 per month per child for child support and $300 a month for three years for rehabilitative support. In making its division of the property, the trial court found that the equity in the home in Underwood was approximately equal to Charles' retirement account and awarded the home to Mary, subject to mortgage, and the retirement account to Charles. The court also awarded Mary personal property valued at $12,000 and Charles personal property valued at $8,200. Charles was ordered to pay Mary $1,200 as a contribution toward her attorney's fees for the divorce and to pay all the debts of the couple with the exception of the Underwood home mortgage. The evidence presented at trial reflects that the mortgage was approximately $39,000 and the remaining debts were approximately $35,000. The district court determined that the inherited land was not a marital asset and that it was unnecessary to use it to equalize the division of the property. Accordingly, Charles was granted sole ownership of that land.

Mary asserts that the trial court's property division was erroneous. She contends that the trial court's decision was induced by an erroneous view of the law in failing to consider the inherited farmland in making its property division.

The trial court's determinations on matters of property division are treated as findings of fact and will not be set aside on appeal unless they are clearly erroneous under Rule 52(a), NDRCivP, or they are induced by an erroneous conception of the law. Schmidt v. Schmidt, 325 N.W.2d 230 (N.D.1982). Whenever a divorce is granted, Section 14-05-24, NDCC, requires the trial court to distribute the parties' real and personal property as may seem just and proper. Under Section 14-05-24, NDCC, the trial court must consider all of the real and personal property accumulated by the parties as part of their marital estate, regardless of the source. Schmidt v. Schmidt, supra; Herrick v. Herrick, 316 N.W.2d 72 (N.D.1982); Fraase v. Fraase, 315 N.W.2d 271 (N.D.1982). However, the trial court may or may not award the separate property of one spouse to the other spouse depending upon whether or not an equitable distribution so requires. Schmidt v. Schmidt, supra; Herrick v. Herrick, supra; Fraase v. Fraase, supra.

The Ruff-Fischer ¹ guidelines give the trial court sufficient flexibility to consider the source of the property as one factor in arriving at an equitable distribution. Winter v. Winter, 338 N.W.2d 819 (N.D.1983). However, the separate property, whether inherited or otherwise, must initially be included in the marital estate and is subject to distribution as may be necessary to achieve an equitable distribution.

In this case, the trial court made the following relevant findings of fact:

"IX.

"The primary assets of the marriage are the automobile, the home and the employer retirement plan of Mr. Anderson. Mr. Anderson is unable to draw the money set aside in his retirement plan; however, it has been deposited in his name and all expectation would result in the fact that this would be available for him upon his retirement. The court finds that the equity in the home is approximately equal to the retirement account of Mr. Anderson. Plaintiff [Mary] shall have the home of the parties, subject to the mortgage and the defendant [Charles] shall have his retirement account.

"X.

"The court finds that the farm land and mineral interests which the defendant [Charles] inherited from his father is not a marital asset and the defendant [Charles] is granted sole ownership in the mineral interest and farm land without any claim upon it by the plaintiff [Mary]. The court finds that it is unnecessary to use this asset in order to equalize a division made to the properties." ²

The trial court's findings reflect that it excluded the farmland and mineral interests from the marital estate and divided the remaining assets approximately equally. ³

The trial court stated that the primary assets of the marriage were an automobile, the house, and the retirement account, and it did not include the farmland and mineral interests as one of the primary assets even though Charles presented evidence that those assets had a value of $62,000. The trial court further stated that the farmland and mineral interests were not marital assets and that it was unnecessary to use them to equalize the property division. The marital assets, excluding the farmland and mineral interests, were distributed approximately equally. Although the trial...