Bohnenkamp v. Bohnenkamp

• Decision Date: 12 May 1977
• Docket Number: No. 9300,9300
• Citation: 253 N.W.2d 439
• Parties: Janice M. BOHNENKAMP, Plaintiff and Appellant, v. James D. BOHNENKAMP, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 439

253 N.W.2d 439

Janice M. BOHNENKAMP, Plaintiff and Appellant, v. James D. BOHNENKAMP, Defendant and Appellee.

Civ. No. 9300.

Supreme Court of North Dakota.

May 12, 1977.

Syllabus by the Court

1. The findings of the trial court that the husband in this divorce case had little property and that the property he may have accumulated was not due to any contribution from the wife are not clearly erroneous.

2. The finding of fact that the husband is entitled to custody of the children of the marriage is not clearly erroneous, as the record discloses the trial court's concern for the best interests of the children in making this determination.

3. The trial court did not abuse its discretion in ordering each party to pay his own attorney's fees.

Stetson & Jones, Lisbon, for plaintiff and appellant; argued by Wayne P. Jones, Lisbon.

Robert A. Case, Forman, for defendant and appellee.

ERICKSTAD, Chief Justice.

In this case, Janice M. Bohnenkamp, the plaintiff in an action for divorce against James D. Bohnenkamp, appeals from those parts of the judgment delineating property division, awarding custody of the three children of the marriage to James, and ordering that each party pay his own attorney's fees. The plaintiff asked for no alimony.

The parties were married in Forman, North Dakota, on April 9, 1966. During the first summer following their marriage, Janice lived with her parents in Oakes, North Dakota, while James worked in Fargo, North Dakota, for an excavation company. James began working for Melroe Manufacturing Company, located at Gwinner, North Dakota, in December of 1966. While James was employed by Melroe, he and Janice lived at various times on a farm at Cogswell, North Dakota, in Oakes, and in Gwinner. In June of 1974, they moved into a mobile home on James' parents' farm near Cogswell, at which time James had quit his job with Melroe, and began farming with his father.

Three children were born during the marriage Brenda, born July 9, 1966; Becky, born September 20, 1970; and Barbara, born September 21, 1971.

The evidence indicates that the parties had experienced marital problems for some time, and that matters worsened when they moved to the farm. Janice testified that she received marriage counselling for an eight or nine month period, attending sessions once or twice a week during that time. James also attended one session at Janice's request. It is unclear from the record exactly when this counselling took place, although it appears to have been after the couple moved to the mobile home on the farm.

On July 12, 1975, Janice took the three children and moved from the farm. She first went to live with her parents in Oakes for about six weeks. Thereafter, she took the children and moved into the home of Kathleen Coleman in Gwinner, North Dakota. In the middle of September, 1975, Janice and the three children moved into a trailer house in Cogswell which was owned by Donald Kadoun.

The parties agree that when they moved to the farm from Gwinner they had very little personal property. They were making payments on the house in which they lived in Gwinner. This house was sold during the period of litigation and the net proceeds were divided equally between the parties. It is in dispute in this case just what the financial position of the couple was at the time they separated. From the time they moved to the farm James has somehow been involved in farming his father's land, which consists of hay and pasture land. James' father, Floyd Bohnenkamp, has been unable to actively farm because of ill health. James and Janice do not agree as to what the business relationship was between James and his father, an understanding of which is essential to determination of the extent of property James owned while he and Janice were still married.

A hearing was held on April 29, 1976, at which time a divorce was granted both parties. It developed at that hearing that Donald Kadoun, who owns the trailer in Cogswell in which Janice and the three children are living, has been living in the trailer with Janice. Janice testified that she and Kadoun had been sharing the same bedroom; that this had been going on for several months at that time; and that the children were aware of the situation. She stated that she and Kadoun planned to get married as soon as her divorce was final.

Following the April 29 hearing a judgment was issued granting a divorce to both parties on the ground of irreconcilable differences and both parties were given permission to remarry immediately. Some items of personal property were awarded Janice, but a final order relating to property matters was delayed pending a second hearing set for August 25, 1976, prior to which time the parties were to sell their house in Gwinner and make other financial arrangements. Temporary split custody of the children was ordered at this time, but the final order as to custody was also to be determined following the August 25 hearing.

At the hearing held August 25, 1976, Janice, represented by new counsel (who is also representing her on this appeal), introduced additional evidence relating to the division of property, as did James. She also stated at this hearing that she was still living with Donald Kadoun, and that they were not yet married but were "engaged". Following this hearing, the trial court entered judgment, (1) awarding permanent custody of the three children to James, subject to visitation rights in Janice, (2) awarding all the farm machinery, livestock, and other property to James, and (3) making no provision for James to pay Janice's attorney's fees. These are the three factors which precipitated this appeal.

PROPERTY DIVISION

Janice argues, first of all, that finding of fact No. 7, found in the order for judgment dated September 29, 1976, is clearly erroneous. That finding reads:

"7. The Court finds that the Plaintiff and the Defendant had little property, other than their interest in their residence, until about one year prior to the divorce. At this time the parties moved to the farm home of the Defendant's parents, and the Defendant began to engage in farming with his father. That during this period of time the Plaintiff did not have any outside employment and the services rendered by her were limited to those of a housewife. That during this period of time that the marriage deteriorated with the resulting divorce and that during such a period the contributions of the wife to the marriage were not so substantial that additional cash payments from the Defendant to the Plaintiff would be justified. That the record shows that for income tax purposes the Defendant suffered a loss of $5,349.31 on his farm income tax return. The Court does take judicial notice of the fact that the cattle industry has in recent years been extremely depressed and that drought conditions have made matters even worse, and that the Plaintiff has assumed no obligation to support the children, a task assumed by the Defendant alone at this time. The Court further finds that the property or wealth that the Defendant may have amassed is not due to any contribution on the part of the Plaintiff, but, instead, is primarily due to the fact that Defendant entered into farming with his Father, and, if in fact the Defendant has acquired some property, it would, therefore, be due to gifts from the Defendant's parents. It is further the finding and determination of this Court that the Defendant shall be entitled to retain all of the property now in his possession, including all farm machinery, livestock and other property, and that no further cash payments to the Plaintiff shall be required."

The "bottom line" of this finding is that James has amassed virtually no property through his farming operation. When his assets, including livestock, machinery, and other property, are netted with the debts he has undertaken in order to acquire this property, there is very little left for him to divide with Janice. Defendant's exhibits numbers one and two, being respectively a list of James' property and of his debts, were in evidence before the trial court. The court as indicated found also that any property or wealth James may have accumulated is not due to Janice's efforts, but results...