Branson v. Branson, 11423

• Decision Date: 20 August 1987
• Docket Number: No. 11423,11423
• Citation: 411 N.W.2d 395
• Parties: Pamela Lynn BRANSON, Plaintiff and Appellant, v. David Rex BRANSON, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 395

411 N.W.2d 395

Pamela Lynn BRANSON, Plaintiff and Appellant, v. David Rex BRANSON, Defendant and Appellee.

Civ. No. 11423.

Supreme Court of North Dakota.

Aug. 20, 1987.

Wayne T. Anderson, Fargo, for plaintiff and appellant.

Johnson, Johnson, Stokes, Sandberg & Kragness, Wahpeton, for defendant and appellee; argued by A.W. Stokes.

ERICKSTAD, Chief Justice.

Pamela Lynn Branson appeals from a divorce judgment and from an order denying her motion to amend findings of fact and conclusions of law, or, alternatively, for a new trial. We affirm in part, reverse in part, and remand with directions.

Pamela and David Branson were married in 1976. Two daughters, Rachael and Nikki, were born in 1976 and 1980. The family resided near Fairmount, North Dakota, where they were engaged in farming. The parties separated in December 1985 and Pamela moved to Fargo with the children.

Pamela commenced an action for divorce on December 26, 1985. The judgment, among other things, (1) provides that neither party shall receive spousal support; (2) awards to David property valued at $580,725; (3) awards to Pamela property valued at $2,827.50; (4) orders David to assume the parties' debts of $606,149.22 and to pay guardian ad litem fees; (5) gives custody of the children to David; and (6) does not order Pamela to pay child support, but retains "jurisdiction on this issue so that child support may be ordered at such time as circumstances dictate."

Pamela asserts on appeal that the trial court's findings of fact relating to property division, spousal support, and child custody are clearly erroneous.

A trial court's determinations on child custody, child support, alimony, and property division are treated as findings of fact, which will not be set aside on appeal unless they are clearly erroneous. Lapp v. Lapp, 293 N.W.2d 121 (N.D.1980). Findings of fact are presumptively correct. Alumni Ass'n of Univ. v. Hart Agency, Inc., 283 N.W.2d 119 (N.D.1979). The complaining party bears the burden of demonstrating that findings are erroneous, and a finding is clearly erroneous only when the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Byron v. Gerring Industries, Inc., 328 N.W.2d 819 (N.D.1982). Simply because we might have viewed the evidence differently does not entitle us to reverse the trial court. Jochim v. Jochim, 306 N.W.2d 196 (N.D.1981). "A choice between two permissible views of the weight of the evidence is not clearly erroneous." Owan v. Kindel, 347 N.W.2d 577, 579 (N.D.1984).

Pamela first asserts that the trial court's findings as to property values and property distribution are clearly erroneous. She argues that the trial court should have made a finding of the parties' net worth before distributing the parties' property. Where there is sufficient evidence to determine the parties' net worth, the court must do so. Williams v. Williams, 302 N.W.2d 754 (N.D.1981). Here, while the trial court did not make a specific finding of net worth, it did find that the parties' assets were $583,562.50 and that their debts were $606,149.22. From those findings it is evident that the parties had a net worth of a negative $22,586.72.

The trial court valued the parties' machinery and equipment, including a car valued at $1,500, at $63,600. Pamela asserts that the trial court "failed to consider the value placed upon the same equipment in April of 1985 by the PCA/FHA of $103,000." The action was tried in September 1986. By that time, as David testified, the value of farm machinery had fallen because of the farm economy and there were two more years of wear and tear on the machinery and equipment in the crop years of 1985 and 1986. The finding is not clearly erroneous.

Pamela asserts that the trial court's valuation of the parties' farmland at $280,000 was clearly erroneous. That value was within the range of the evidence and we have not been left with a definite and firm conviction that a mistake has been made. The finding is, therefore, not clearly erroneous.

Before trial, David received $9,400 in government support payments in 1986. Pamela asserts that the trial court abused its discretion in failing to treat additional anticipated payments as assets. We note that in her motion to amend the findings of fact and to make additional findings, Pamela did not raise this issue. The evidence on this matter was not very satisfactory ¹ and we find no abuse of discretion in failing to include speculative future payments in the parties' assets.

Pamela argues that the trial court's disparate property division, in which David was awarded assets of $580,725 and ordered to assume the marital debt and Pamela was awarded assets of $2,827.50, is clearly erroneous. David's award of $580,725 in assets is burdened with marital debts of $606,149.22 plus $1,202.80 in guardian ad litem fees, resulting in a net property award to David with a value of a negative $26,627.02. The property valued at $2,827.50 awarded to Pamela is not burdened with marital debt. The disparity in awarding property and debts to David resulting in a negative $26,627.02 and awarding property to Pamela worth $2,827.50 is not clearly erroneous as to Pamela. We have said that substantial inequalities in property divisions must be explainable. Anderson v. Anderson, 390 N.W.2d 554 (N.D.1986). The disparate division burdening David with debts in excess of the assets awarded him while awarding Pamela assets not burdened by debts is explainable. Virtually all of the debts ordered assumed by David were farm-related and he was awarded the farmland, machinery and equipment, and he intended to continue farming. Most of the assets awarded him have some potential to generate income with which to extinguish the debts. The car and household goods awarded Pamela have little or no potential for income generation.

Pamela next asserts that the trial court's determination that neither party should receive spousal support from the other is clearly erroneous. We agree.

A trial court's determination on the matter of spousal support is treated as a finding of fact and will not be set aside unless clearly erroneous. Weir v. Weir, 374 N.W.2d 858 (N.D.1985); Oviatt v. Oviatt, 355 N.W.2d 825 (N.D.1984). One of the functions of spousal support is rehabilitation of the party disadvantaged by the divorce. Oviatt v. Oviatt, supra. As we explained in Delorey v. Delorey, 357 N.W.2d 488, 490 (N.D.1984):

"The purpose underlying alimony or spousal support today is rehabilitative, to allow the disadvantaged party time and resources to acquire new skills. It can be for a limited period of time or it can be permanent to provide the traditional maintenance for a party incapable of rehabilitation."

"Obviously, an award of spousal support must be considered in light of the supporting spouse's needs and ability to pay support." Weir v. Weir, supra, 374 N.W.2d at 865. We recently said that "[t]he determinative factor is the sufficiency of income to permit each party to maintain apart the standard of living enjoyed together." Bagan v. Bagan, 382 N.W.2d 645, 646 (N.D.1986). This, we realize, must be tempered by the necessities of reality. ²

In our view of the evidence, Pamela has clearly demonstrated that she has been disadvantaged by the divorce and that she is in need of rehabilitative spousal support. Her standard of living has been reduced by the divorce. She has received no education beyond high school. She was not employed outside the home during the marriage. Her present earning ability is not great. At the time of trial, she was netting slightly more than $500 per month as a nurse's aide. She received no income-producing assets in the property distribution. She wishes to pursue a degree in nursing. David, on the other hand, apparently has not had his standard of living reduced by the divorce. He has a two-year degree in electrical technology from the school of science at Wahpeton. He has a greater earning ability than Pamela. He received all of the income-producing assets in the property distribution. He is presently farming and intends to continue.

It is also clear that David does not now have sufficient income to be able to pay rehabilitative spousal support. It is possible, however, that his financial situation may improve in the future. This court said in Becker v. Becker, 262 N.W.2d 478, 484 (N.D.1978), that "where there was no initial award of alimony to modify and no express reservation of jurisdiction, the trial court lacked jurisdiction to order the payment of alimony." In view of Pamela's demonstrated need for rehabilitative spousal support and the possibility that David may be able to afford such support in the future, we believe that the trial court should have expressly retained jurisdiction to later award such support if circumstances changed. We are left with a definite and firm conviction that a mistake has been made in not awarding spousal support to Pamela without retaining jurisdiction to later award spousal support if Pamela's needs remain and David is later able to afford to pay rehabilitative spousal support.

We note that, as to child support, the trial court included in the judgment the following provision:

"9. That in view of Pamela's present financial situation, the Court shall enter no order at this time requiring her to pay child support to David but shall retain jurisdiction on this issue so that child support may be ordered at such time as circumstances dictate."

Thus, the trial court retained jurisdiction to order Pamela to pay child support if she became able to do so in the future. The trial court should similarly have retained jurisdiction to order David to pay rehabilitative spousal support if he became able to do so in the future and Pamela's need therefor remained.

Pamela contends that the trial court's determination to award custody of the children to David is clearly erroneous. She does not...