Bosma v. Bosma, 9650

• Decision Date: 28 November 1979
• Docket Number: No. 9650,9650
• Citation: 287 N.W.2d 447
• Parties: Olga A. BOSMA, Plaintiff, Appellant, and Cross-Appellee, v. Alvin A. BOSMA, Defendant, Appellee, and Cross-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 447

287 N.W.2d 447

Olga A. BOSMA, Plaintiff, Appellant, and Cross-Appellee, v. Alvin A. BOSMA, Defendant, Appellee, and Cross-Appellant.

Civ. No. 9650.

Supreme Court of North Dakota.

Nov. 28, 1979.

Rehearing Denied Jan. 10, 1980.

Murray, Olson, Larivee & Bohlman, Grand Forks, for plaintiff, appellant, and cross-appellee; argued by Bruce E. Bohlman, Grand Forks.

R. Lee Hamilton, Grand Forks, for defendant, appellee, and cross-appellant.

ERICKSTAD, Chief Justice.

The plaintiff appeals from a judgment of divorce entered in Grand Forks County District Court on May 18, 1979. The judgment is reversed as to omitted property, but it is otherwise affirmed.

The plaintiff, Olga A. Bosma, and the defendant, Alvin A. Bosma, were married in Crookston, Minnesota, on December 1, 1951. Three children were born of the marriage: Larry Bosma, born June 19, 1952; Katherine Bosma, born March 20, 1955; and Denise Bosma, born February 23, 1967.

The evidence indicates that the parties had experienced marital problems for quite some time, and matters worsened considerably following the birth of their youngest child, Denise.

Olga commenced an action for divorce by service of the summons and complaint upon Alvin on January 25, 1978. The asserted grounds for the divorce were that Alvin had inflicted grievous mental suffering and cruelty upon Olga which made the continuance of the marriage intolerable.

In Alvin's answer to the complaint, he asserted a counterclaim, alleging that Olga had inflicted grievous mental suffering and cruelty upon him, and furthermore, that the parties had irreconcilable differences which made the continuance of the marriage intolerable.

A hearing was held on September 21, 1978, with additional hearings thereafter. On May 17, 1979, the court issued its findings of fact, conclusions of law, and order for judgment, awarding Alvin a decree of divorce on the grounds of irreconcilable differences.

Based upon the evidence adduced at trial, the district court concluded, in pertinent part, in its findings of fact that:

"XII.

"The parties were possessed of a net worth of $202,701.00 as of July 1, 1978. The sum of $169,827.00 of this net worth consisted of equities in certain real property in Grand Forks and Maple Lake, Minnesota. The equities represent interest in real property having a total value of $334,500.00 and subject to indebtedness of $164,673.00. . . .

"XVI.

"Neither the Plaintiff nor the Defendant have established a cause of action for divorce on the grounds of extreme cruelty, as specified in Sections 14-05-03(2) and 14-05-05 of the North Dakota Century Code."

Thereafter, in its conclusions of law, the district court made the following awards of alimony, child support, and the division of property:

"IV.

"The Defendant shall pay to the Plaintiff as and for child support of the minor child born of the marriage the sum of Two Hundred ($200) Dollars per month, payable on the 15th day of each month, commencing May 15, 1979 and each month thereafter until the child reaches her majority, or until further order of the Court. The said payments shall be made to the Clerk of the Grand Forks County District Court, Grand Forks, North Dakota.

"V.

"The Plaintiff is awarded the following property, free and clear of any claims of the Defendant:

(a) The 1976 Cadillac automobile, subject to encumbrances thereon, and the 1970 Chevrolet automobile;

(b) All of the personal property now in her possession, including the lumber for the fence at 3114 10th Street South, Grand Forks, North Dakota;

(c) The parties' lake property at Maple Lake, Minnesota;

(d) Subject to the conditions set forth in this paragraph, the Plaintiff is awarded the residence at 3114 10th Street South, Grand Forks, North Dakota, subject to the encumbrances thereon as shall remain unpaid to the date of February 23, 1985. During the interim period from the date of the commencement of this action to February 23, 1985, and so long during said period as the said property is occupied by the Plaintiff as custodial parent and by Denise Bosma, the Defendant shall be fully obligated to make all necessary payments on said property to cover real estate taxes assessed and payable thereon, including installments of special assessments as shall have been extended of record by said date. The Defendant is also ordered to maintain adequate fire insurance on said property until that date and make all payments of principal repayment and interest as shall accrue on the note secured by the mortgage against said property. The object of these payment obligations upon the Defendant during this period is to provide a homestead for the minor child of the parties during the remainder of her minority. In the event that the Plaintiff shall quit the described premises during the minority of Denise Bosma, the obligations of Defendant to make payments thereon for the benefit of Plaintiff as custodial parent shall cease and such payments shall thereafter be the obligation of the Plaintiff. In any event, after February 23, 1985, the obligations for payment of taxes, insurance, principal repayment and interest shall be that of the Plaintiff;

(e) The Plaintiff is also awarded all of her personal effects and other personal property presently in her possession and in addition thereto shall have all household goods presently in her possession, free of claims of the Defendant;

(f) The Plaintiff is also awarded the 1957 boat, motor and trailer, the tractor and such other tools and equipment as may be located at the residence at 3114 10th Street South or at the parties' Maple Lake, Minnesota property as of April 17, 1979;

(g) The Plaintiff is also awarded the rental real estate located at 623 Lincoln Drive and at 416/418/420 Conklin Avenue, subject to the encumbrances thereon, but free and clear of claims of the Defendant. Income returnable thereon shall be in lieu of alimony for the Plaintiff. The property is located in Grand Forks, North Dakota.

"VI.

"The Defendant is awarded all other property of the marriage free and clear of the claims of the Plaintiff.

"VII.

"The Defendant is liable for and shall pay all debts of the parties accrued during the course of the marriage and as shown by the evidence, but the Defendant shall not be liable for any debts of the Plaintiff not shown of evidence at the trial or incurred after the commencement of this action except reasonable attorney fees incurred herein in amount not to exceed Two Thousand ($2,000) Dollars. All other costs are to be paid by the party that incurred the same."

Judgment was entered on May 18, 1979, and on May 21, 1979, Olga filed a notice of appeal. It is in regard to the above awards of alimony, child support, and the division of property, that Olga appeals to this court. Alvin has filed a cross-appeal, alleging that the division of property is erroneous because the trial court placed too much credence on a medical statement concerning the extent of Olga's physical disability.

The law in this area is quite clear. The applicable statute is Section 14-05-24 of the North Dakota Century Code, which provides:

"14-05-24. Permanent alimony Division of property. 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."

Under Section 14-05-24, N.D.C.C., in determining the division of property, or in determining whether or not either party is entitled to alimony or child support, the trial court may consider the respective ages of the parties to the marriage; their earning abilities; the duration of and 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 it was accumulated or acquired before or after the marriage; and such other matters as may be material. Bender v. Bender, 276 N.W.2d 695 (N.D.1979); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966); Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952).

Although we have never specifically said that the trial court must make an express finding as to each of the factors enumerated, we encourage trial courts to carefully consider the Ruff-Fischer guidelines in equitably distributing the marital estate, and in determining awards of alimony and child support.

The trial court's determinations on matters of alimony, child support, and division of property are treated as findings of fact. Nastrom v. Nastrom, 284 N.W.2d 576 (N.D.1979); Haugeberg v. Haugeberg, 258 N.W.2d 657 (N.D.1977). The findings of fact will not be set aside on appeal unless they are clearly erroneous pursuant to Rule 52(a) of the North Dakota Rules of Civil Procedure. A finding of fact is deemed "clearly erroneous" when the reviewing court is left with a firm and definite conviction that a mistake has been made. Haberstroh v. Haberstroh, 258 N.W.2d 669 (N.D.1977).

As we recently stated in Nastrom v. Nastrom, supra, our scope of review is limited by the clearly erroneous rule, and rightly so, for the trial judge is better able than we are "to ascertain the true facts by listening to and observing the demeanor of the witnesses." The mere fact that the appellate court might have viewed the facts differently, if it had been the initial trier of the case, does not entitle it to reverse the lower court. Larson v. Larson, 234 N.W.2d 861 (N.D.1975).

Whether or not a particular finding is a finding of fact, which will not be set...