Bellon v. Bellon
| Decision Date | 06 December 1973 |
| Docket Number | No. 8887,8887 |
| Parties | Frances L. BELLON, Plaintiff and Respondent, v. Adam BELLON, Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. The scope of review of the findings of a district court on an appeal to this court from a case tried without a jury is limited by Rule 52(a), N.D.R.Civ.P.
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. Section 14--05--24, N.D.C.C.
3. In determining a division of property between the parties in a divorce action, the court, in exercising its sound discretion, will consider the respective ages of the parties; their earning ability; and 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.
4. There is no rigid rule for the division of property in divorce cases.
5. A trial court who hears and sees the witnesses is in a much better position than the reviewing court to pass upon their credibility.
6. In divorce actions, the trial court has the responsibility of finding facts and resolving conflicts in evidence, and findings of fact based on conflicting evidence will not be disturbed on appeal unless manifestly and palpably contrary to the evidence as a whole, or induced by an erroneous view of the law.
Theodore Kessel, Jr., LaMoure, for defendant and appellant.
James R. Jungroth, Jamestown, for plaintiff and respondent.
The plaintiff, Frances L. Bellon (hereinafter referred to as Frances), and the defendant, Adam Bellon (hereinafter referred to as Adam), were married on June 23, 1941, in Spiritwood, North Dakota. There was one child born as the issue of this marriage, and she is now an adult.
At the time of the divorce, Frances was 56 years of age and Adam was 67. The trial of the action was completed October 16, 1972. The district court found that irreconcilable differences existed between Frances and Adam and that Frances was entitled to an absolute divorce.
Adam in his appeal contends that the trial court made an inequitable division of the property of the parties.
Adam was a farmer at the time of his marriage to Frances in 1941. The only real estate he then owned was a section of land which he had purchased two weeks previously. He had a small equity in this land of approximately $500 which was the initial down payment. He rented eleven other quarters of land. He owned a full line of farm machinery. He stated he owned a hundred head of cattle, including fifteen milk cows, and ten or twelve sows with pigs. Frances testified that he had considerably less than one hundred head of cattle and disputed the amount of farm machinery Adam said he had. Adam testified that he had $10,000 in cash at the time of marriage. Frances denies this and states that they were in a financially poor condition. The evidence discloses that he purchased two quarters of land in 1936 but that he permitted these quarters to be repossessed by the mortgagee in 1939, just two years prior to this marriage. Some of his machinery was mortgaged. Adam quit farming in 1947 when he held an auction sale of all machinery and livestock. The proceeds of the sale amounted to $26,000. The Bellons then moved to Jamestown, North Dakota, where they purchased a home at 911 Third Street. They later purchased an older and smaller house at 814 Fourth Avenue in Jamestown for rental purposes. After the auction sale in 1947, Adam leased him farm land on a share basis. He purchased a considerable amount of other land in later years. In 1966 he sold all of his land to his son by a first marriage, Clifford Adam. At the time of the trial, Clifford Adam owed $41,216 on the contract of purchase.
Frances taught at a country school during the first year of marriage. When their only daughter was old enough to attend school, Frances began to have outside employment again. She was employed at a nursing home from 1947 to 1953. She began substitute teaching in 1954. At the time of her marriage she had a standard certificate for teaching. She became a full-time teacher from 1961 to 1968. She was a substitute teacher again in 1969--70. She has been employed as a special education teacher since 1970, working from 8:00 a.m. until noon of each school day. Her present take-home pay is $273 per month. She has been informed that she must secure her degree in Special Education within two years if she is to continue teaching in North Dakota. Although Frances assisted her relatives financially from time to time with the money she earned, there is ample testimony to show that she also used a considerable portion of these earnings for her own clothes, general household expenses and some items of furniture for the home. While she lived on the farm with her husband, she did chores, assisted with the milking of the cows, and occasionally worked in the field. Frances has two savings accounts of $10,000 and $9,192 representing money she inherited in recent years from her mother and an aunt.
In making a distribution of the property of the parties to the action, the trial court awarded and divided the property as follows:
The Court also concluded that Frances was entitled to the inheritance from her aunt and mother, represented by the two savings accounts totaling $18,192.
The trial court determined that Adam had approximately $10,000 in property (real, personal, and cash) when he married Frances. The Court stated that was the reason why Adam was being awarded $26,216, compared to only $15,000 to Frances, out of the balance still due and owing on the contract for deed for the sale of the farm land to Clifford Adam. In addition to the above-listed property, the trial court awarded to Adam a number of items of personal property of the value of approximately $2,500.
The scope of review of the findings of a district court on an appeal to this court from a case tried without a jury is limited by Rule 52(a) of the North Dakota Rules of Civil Procedure, which provides, in pertinent part:
(Emphasis added.)
The power of the district court to divide property between the parties after a divorce is...
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Haugeberg v. Haugeberg, 9358
...and Ferguson v. Ferguson, 202 N.W.2d 760 (N.D.1972)). (3) If both are at fault, the division will be approximately equal (Bellon v. Bellon, 213 N.W.2d 376 (N.D.1973), and Larson v. Larson, 234 N.W.2d 861 (N.D.1975)), or the wife may get somewhat less than half (Grant v. Grant, 226 N.W.2d 35......
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Fries v. Fries, 9682
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Grant v. Grant, 9059
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Rudel v. Rudel, 9593
...test to findings of a trial court relating to the division of property between the parties in actions for divorce. 3 In Bellon v. Bellon, 213 N.W.2d 376 (N.D.1973) and in Grant v. Grant, supra, we declined to hold clearly erroneous divisions of property made by trial courts which took into ......