Bender v. Bender, 9542

• Decision Date: 05 March 1979
• Docket Number: No. 9542,9542
• Citation: 276 N.W.2d 695
• Parties: Clifford BENDER, Plaintiff and Appellant, v. Yvonne BENDER, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 695

276 N.W.2d 695

Clifford BENDER, Plaintiff and Appellant, v. Yvonne BENDER, Defendant and Appellee.

Civ. No. 9542.

Supreme Court of North Dakota.

March 5, 1979.

Rehearing Denied March 26, 1979.

Chapman & Chapman, Bismarck, for plaintiff and appellant; argued by Daniel J. Chapman, Bismarck.

Lundberg, Conmy, Nodland, Rosenberg, Lucas & Schulz, Bismarck, for defendant and appellee; argued by A. William Lucas, Bismarck.

ERICKSTAD, Chief Justice.

Clifford Bender appeals from a district court judgment of divorce on the grounds that the court made an inequitable property distribution. We affirm the judgment.

Clifford Bender and Yvonne Bender were married on September 2, 1955. Four children were born of this marriage, but only one child, Carrie, born June 28, 1960, was a minor at the time of the divorce hearing.

At the time the parties were married, Clifford was a student on the G.I. Bill at the University of North Dakota. He continued to attend college and, in January 1958, he was graduated from the University with a B.A. degree in accounting. Following his graduation, Clifford worked for the State of North Dakota in accounting related positions with the State Board of Auditors, State Auditor, State Board of Administration, and Director of Institutions, respectively. In November 1971, he became Business Administrator at Grafton State School in Grafton, North Dakota. In July 1974, he resigned from this position apparently due to a management change and has not been permanently employed since that time.

Following Clifford's resignation at the Grafton State School in July 1974, he was hospitalized for about three weeks with a disease that is apparently similar to multiple sclerosis. Although Clifford is still hampered by this disease, he agrees that he is not incapable of holding an administrative position similar to those that he held with the State.

Prior to the parties' move to Grafton, Yvonne was not continuously employed, but she was involved with various kindergarten programs. She also attended college at this time, and received a degree in education. In Grafton, Yvonne taught kindergarten for two years.

Following the parties' move to Grafton, marital difficulties began to surface. The parties were ultimately separated and Yvonne began a divorce action in 1974. Yvonne and the family moved to Bismarck and she obtained a teaching position with the Bismarck public school system. She continues to be employed there. The first divorce action was not completed and the parties were reconciled.

The reconciliation was short-lived, however, and on June 10, 1977, Clifford filed a summons and complaint seeking a divorce on the grounds of irreconcilable differences. Clifford asked the court to award custody of Carrie to Yvonne and that the court make an award to Yvonne of reasonable child support. Clifford also asked that Yvonne be permitted to retain possession of a drive-in restaurant that the parties had purchased in 1972 at Medora, North Dakota with a "reasonable allowance . . . for rental on his interest".

Yvonne answered and counterclaimed seeking a divorce on the grounds of irreconcilable differences, custody of Carrie, appropriate child support, and sole title to the drive-in facility that she has operated for a number of years at Medora.

The court awarded each party a decree of divorce, and awarded Yvonne the drive-in restaurant in Medora as her sole property "subject to the lien for the balance of the initial purchase price". The court said "this award of property to the defendant (Yvonne) shall include all past and future support obligations of the plaintiff (Clifford), and shall be in lieu of any obligation on his part toward the defendant for support or alimony". The court also decreed that each party retain the personal property in their possession, with the exception of a diamond ring, which Yvonne was ordered to return to Clifford. Yvonne also received custody of Carrie.

Clifford appeals to this court contending that the trial court made an inequitable property distribution.

The law in this area has been stated many times by this court. The applicable statute is Section 14-05-24, N.D.C.C., which provides:

"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."

Although there is no clear rule by which division of property or alimony is to be made, and the determination of what is an equitable distribution is within the discretion of the trial court, we have outlined some guidelines to be used by the trial court in making this determination. The Ruff-Fischer guidelines provide that in making an award pursuant to Section 14-05-24, N.D.C.C., the trial court may consider the respective ages of the parties to the marriage, their earning abilities, the duration of the marriage and 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, whether accumulated before or after the marriage, and such other matters as may be material. Fischer v. Fischer, 139 N.W.2d 845, 852 (N.D.1966); Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107, 111 (1952).

It is well established that property division need not be equal in order to be equitable. Haugeberg v. Haugeberg, 258 N.W.2d 657, 662 (N.D.1977).

The trial court's determination on matters of child support, alimony, and division of property are treated as findings of fact and thus are fortified by Rule 52(a),...