Becker v. Becker

• Decision Date: 13 January 1978
• Docket Number: No. 9384,9384
• Citation: 262 N.W.2d 478
• Parties: Ramona A. BECKER, Plaintiff and Appellee, v. Calvin J. BECKER, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 478

262 N.W.2d 478

Ramona A. BECKER, Plaintiff and Appellee, v. Calvin J. BECKER, Defendant and Appellant.

Civ. No. 9384.

Supreme Court of North Dakota.

Jan. 13, 1978.

Kessler & Anderson, Grand Forks, for defendant and appellant; argued by Damon E. Anderson, Grand Forks.

Shaft, McConn & Fisher, Grand Forks, for plaintiff and appellee; argued by Patrick W. Fisher, Grand Forks.

PEDERSON, Justice.

Ramona A. Becker was granted a divorce from Calvin J. Becker in May 1975. A stipulation and property settlement agreement entered into by the parties was found to be fair and equitable and apparently in the best interests of the children, and was incorporated in the court's findings of fact, conclusions of law, and the divorce decree. In May 1977, Calvin instituted proceedings to modify the decree by moving for: (1) a change of custody of one of the parties' three minor children from Ramona to himself, (2) a reduction in child support, and (3) a change in medical insurance provisions. Ramona did not contest the custody transfer motion but, in her return to Calvin's motion, she requested: (1) an increase in child support, (2) alimony, and (3) attorney fees. After a hearing on the merits, the court issued an order amending the divorce decree, providing that: (1) Calvin have custody of one of the children (Donald), (2) support payments for the two children remaining with Ramona be increased from $150 to $200 per child per month, (3) alimony of $200 per month be paid by Calvin to Ramona, and (4) attorney fees in the amount of $350 be paid by Calvin to Ramona. The order makes no disposition of Calvin's motion for a change in medical insurance provisions.

This is an appeal by Calvin, in which he challenges only the increase in the child support payment, the award of alimony, and the order to pay Ramona's attorney fees. We affirm the award of attorney fees and the increase in child support. The award of alimony is reversed.

I.

Calvin asserts that the increase in child support is clearly erroneous. A material change in circumstances of the parties must be shown before a modification of the initial decree is proper. Foster v. Nelson,206 N.W.2d 649 (N.D.1973); Bryant v. Bryant, 102 N.W.2d 800 (N.D.1960). The trial court has the power to modify child support provisions of a divorce decree, regardless of any stipulation or agreement of the parties. See Kack v. Kack, 169 N.W.2d 111 (N.D.1969). In Bryant v. Bryant, supra, at 807, this Court rejected the contention that a stipulation between the parties to a divorce is not subject to modification or change by the court. See Foster v. Nelson, supra, and Peterson v. Peterson, 131 N.W.2d 726 (N.D.1964). The restrictions upon the ability of the parties to rescind contractual stipulations, as discussed in Rummel v. Rummel, 234 N.W.2d 848 (N.D.1975), and Lawrence v. Lawrence, 217 N.W.2d 792 (N.D.1974), do not apply to the power of the court to modify a decree which may have been based upon a contractual stipulation.

The trial court heard evidence touching upon the substantial increase in Calvin's income. It also heard evidence that his expenses have eaten away all of that increase. The trial court issued an order which substantially increased the amount of per child support Calvin is to pay. In asserting that the court's decision is clearly erroneous, Calvin cites Schumacher v. Schumacher, 242 N.W.2d 136 (N.D.1976), where this Court, in a unanimous decision, held that Rule 52(a), NDRCivP, governs the review of the trial court's findings in alimony, support and distribution of property.

At first blush, Rule 52(a) appears to except decisions on motions, other than certain motions to dismiss not here relevant, from the preparation of findings of fact and conclusions of law. The reason for this is simple: most motions are not "tried upon the facts." ¹ Motions to modify divorce decrees are exceptions. A fact-finding process is necessary before it can be determined that the requisite material change in conditions has occurred. See Voskuil v. Voskuil, 256 N.W.2d 526, 530 (N.D.1977). ²

Findings of fact and conclusions of law are, in fact, made in the oral opinion of the trial court delivered at the conclusion of the hearing below. The trial court clearly sets forth the basis for its conclusion that a material change of circumstances has taken place.

The trial court stated that Ramona's termination of her employment was due to illness, that she was compelled to depend upon welfare and food stamps, and that she had needed to borrow approximately $4,000 from relatives in order to supplement the support money received for her children.

The trial court also noted that Calvin's situation was one in which he must receive quite a substantial benefit from the income of his fiancee. It was further noted that Calvin had a "lawn toy" (the trial court referred to a Sears Roebuck tractor and tiller purchased for $2,000 by Calvin and used to take care of his fiancee's yard), and that "he could be spending a lot of money unnecessarily that should be going for the support of his children."

From these findings of the respective conditions and circumstances of the parties, the trial court concluded that there had been a substantial change which warranted amendments of the decree.

"A finding is 'clearly erroneous' only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made." In re Estate of Elmer, 210 N.W.2d 815, 820 (N.D.1973).

In this case the only evidence which does not support the trial court's finding is that by which Calvin attempted to show that his expenses already absorb all of his income. It is clear that the trial court did not accept that as credible evidence. Trial courts are the judges of the credibility of witnesses. Rule 52(a), NDRCivP. We find that there is ample support for the trial court's finding, and therefore affirm that portion of the order appealed from which modifies the amount of child support paid by Calvin to Ramona.

II.

Calvin also asserts that the trial court abused its discretion in awarding attorney fees to Ramona for services rendered in the hearing below. Attorney fees necessary to prosecute or defend an action for divorce are to be awarded in the sound discretion of the trial court. Section 14-05-23, NDCC. Such award will not be interfered with by this Court unless it is affirmatively established that the trial court has abused its discretion. Johnson v. Johnson, 211 N.W.2d 759 (N.D.1973). Calvin has failed to affirmatively establish an abuse of discretion. Accordingly, that portion of the order awarding Ramona attorney fees in the amount of $350 is affirmed.

III.

Calvin next contends that the award of $200 monthly alimony was improper. He argues that, there having been no award of alimony in the initial decree, there is nothing to modify pursuant to § 14-05-24, NDCC. Ramona responds by claiming that the initial decree did mention alimony but awarded none. She thus asserts that there was a decree dealing with alimony and that that portion of the decree is subject to modification. She argues that there is no difference between an award of alimony in the amount of zero dollars or in a larger amount, concluding that either award is subject to modification in the appropriate circumstances.

This is an issue of first impression before this Court, although many other jurisdictions have had occasion to discuss it. Although those jurisdictions derive their conclusions from an assortment of statutes, those statutes can be classified, for the purposes of this discussion, into two types: those which expressly grant jurisdiction to award alimony as a modification of the initial divorce decree regardless of whether or not it was initially awarded, as does New Jersey ³ and those, like § 14-05-24, NDCC, which have been consistently construed to not permit a subsequent award of alimony unless alimony was initially awarded or the decree specifically reserved jurisdiction to make a later alimony award.

The need for statutory authority has been described as jurisdictional. Warner v. Warner, 219 Minn. 59, 17 N.W.2d 58, 62 (1945). Actions for divorce are not equity actions in the normal sense. The jurisdiction of the courts of this State to grant divorces and to order alimony and property division is entirely statutory. Wiedrich v. Wiedrich, 179 N.W.2d 728 (N.D.1970); Leifert v. Wolfer, 74 N.D. 746, 24 N.W.2d 690, 169 A.L.R. 633 (1946).

The only statute giving the courts of this State authority to grant permanent alimony and division of property in divorce cases is Section 14-05-24, NDCC, as supplemented by Section 14-05-25, NDCC. Section 14-05-24 reads:

"When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, and may compel either of the parties to provide for the maintenance of the children of the marriage, and to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively. The court from time to time may modify its orders in these respects."

Section 14-05-24, NDCC, is derived from a civil code developed by the Commissioners of the Code, State of New York, popularly referred to as the Field Code after its chief architect, David Dudley Field. ⁴ Though there have been changes made in the language of the statute, the final sentence, "The court from time to time may modify its orders in these respects," has remained the same for more than 110 years. California Civil Code § 139 (also derived from the Field Code through the efforts of David Dudley Field's brother, Stephen J. Field, a member of the First Legislative Assembly of California and later a Justice of the United States Supreme Court) contains language identical to § 14-05-24,...