Bridgeford v. Bridgeford, 9618

• Decision Date: 12 July 1979
• Docket Number: No. 9618,9618
• Parties: Beatrice Jeanne BRIDGEFORD, Plaintiff and Appellee, v. John Arthur BRIDGEFORD, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 583

281 N.W.2d 583

Beatrice Jeanne BRIDGEFORD, Plaintiff and Appellee, v. John Arthur BRIDGEFORD, Defendant and Appellant.

Civ. No. 9618.

Supreme Court of North Dakota.

July 12, 1979.

Rehearing Denied Aug. 2, 1979.

Pancratz, Kruger, Wold, Yuill & Johnson, Fargo, for plaintiff and appellee; argued by William A. Hill, Fargo.

Garaas Law Firm, Fargo, for defendant and appellant; argued by Jonathan T. Garaas, Fargo.

PAULSON, Justice.

Beatrice Jeanne Bridgeford ("Bette") commenced a divorce action against John Arthur Bridgeford ("John") on February 10, 1970. Beatrice and John further entered into a Stipulation and Settlement Agreement on the same date. The pertinent provision in the Stipulation and Settlement Agreement is contained in Section 7 thereof, which reads as follows:

"7. The Plaintiff (Bette) shall be awarded custody of the minor children, John Bridgeford, Jr., Julie Anne Bridgeford and David Bridgeford. The Defendant (John) shall be awarded custody of the minor children, Dennis Bridgeford and Steven Bridgeford. The Defendant shall pay to the Plaintiff the sum of $200.00 per month for alimony and support and said monthly payments shall continue until the death of either party, or the remarriage of the Plaintiff, whichever event might occur first. Said monthly payments shall commence on the first day of the month following the date of sale of the home owned by the parties."

On February 11, 1970, John executed a waiver and consent whereby he waived his right and time to appear or answer and, in addition, he waived the notice of hearing the divorce proceedings, note of issue, and notice of entry of judgment and decree of divorce.

The judgment and decree of divorce was docketed in the office of the clerk of the district court of Cass County on May 28, 1970. The provisions of the property settlement agreement were adopted by the district court and incorporated into the judgment and decree of divorce.

Several civil contempt proceedings were commenced by Bette against John because of John's failure to pay the $200 per month alimony and support payments pursuant to the judgment and decree of divorce. John's counsel prepared and served and filed a motion pursuant to Rule 60(b)(6) of the North Dakota Rules of Civil Procedure in which John requested three alternatives for relief from the judgment and decree of divorce dated May 28, 1970. The alternatives were:

1. To modify the judgment and decree dated May 28, 1970, so that defendant is no longer required to pay the plaintiff alimony and support.

2. Or in the alternative, to interpret the judgment and decree dated May 28, 1970, so as to specify the amount to be paid for alimony compared to child support.

3. Or in the alternative, to reduce the amount the defendant is required to pay the plaintiff for alimony and support.

Bette resisted the motion. A hearing was held on May 20, 1977, before Honorable Maurice E. Garrison, Juvenile Supervisor and Referee for the First Judicial District. On May 31, 1977, the Referee issued his findings of fact and conclusions of law denying any relief to John because he had failed to pay alimony and support money; he had failed to prove his financial inability to make alimony and support payments; and he had failed to prove any change in his circumstances sufficient to warrant relief. The referee determined John was in contempt of court for failure to make the alimony and support payments.

John then requested a review of the referee's findings of fact and conclusions of law, which were reviewed by Honorable Ralph B. Maxwell, District Judge for the First Judicial District, who confirmed the referee's findings of fact and conclusions of law on October 25, 1977.

Bette subsequently secured an order to show cause from Honorable James R. Brothers, Juvenile Supervisor and Referee for the First Judicial District, for contempt because John had failed to pay alimony and support money after the hearing was completed and the referee issued findings of fact and conclusions of law dated January 12, 1978. John was dissatisfied with the referee's decision and requested a review by the District Court of Cass County. Pursuant to Rule 53 of the North Dakota Rules of Civil Procedure the district court again confirmed the referee's findings of fact and conclusions of law on April 13, 1978.

John then prepared, served, and filed a motion dated September 29, 1978, pursuant to Rule 60(b)(6), N.D.R.Civ.P., in which he included the alternatives previously set forth in this opinion. The referee issued findings of fact and conclusions of law dated November 22, 1978, denying John any relief thereunder.

A request for a review of the findings of fact and conclusions of law was presented to Cass County District Judge Roy K. Redetzke, who, on November 28, 1978, confirmed the referee's findings of fact and conclusions of law. John appealed. We affirm.

There are three issues presented to this court:

1. Whether or not the district court, as a matter of law, committed error in not interpreting the judgment and decree dated May 28, 1970, so as to specify the amount to be paid for alimony as compared to child support.

2. Whether or not there was an adequate showing under Rule 60(b)(6), N.D.R.Civ.P., which entitled John to the relief requested.

3. Whether or not there has been a material change of circumstances of the parties since the divorce was granted which would justify a reduction in alimony.

John contends that the district court committed error on several grounds in denying his motion under Rule 60(b)(6), N.D.R.Civ.P. John first urges that the district court, by confirming the referee's interpretation of Section 7 of the property Stipulation and Settlement misinterpreted such Section 7. Paragraphs VII and VIII of the referee's findings, dated November 22, 1978, read as follows:

"VII.

"That from the terms of said Stipulation and Agreement, it is quite clear that the $200.00 per month payments were to be treated as alimony and were to be in no way tied to the eventual emancipation of the parties minor children.

"VIII.

"That the Defendant's claim that he did not understand said payments to be alimony is obviously without merit that the Defendant has continually, since entry of Judgment herein, treated all such payments as alimony for income tax purposes."

John further urges that Section 7 of the property Stipulation and Agreement is ambiguous, and cites § 14-05-24 of the North Dakota Century Code, and Chapter 14-07, N.D.C.C., and Mathisen v. Mathisen, 276 N.W.2d 123 (N.D.1979), which considers § 14-05-24, N.D.C.C., and Chapter 14-09. Mathisen is distinguished on its facts and is not applicable to the instant case because the children who were the issue of this marriage have all attained majority. John further urges that the support referred to in Section 7 refers to child support and not to alimony; that because the children are now adults, the support moneys are no longer necessary; and that the fact that he paid the sum of $200 per month until March of 1977 and deducted the moneys paid each month as alimony on his federal and state income tax returns should in no manner affect his right to have such payments denominated as to the amount to be allocated to alimony and support money respectively.

John urges in support of his contention that the district court misinterpreted Section 7 of the Stipulation and Settlement Agreement which was incorporated into the judgment; that such Section 7 is ambiguous; that the district court overlooked the definitive wording of Section 7, which reads, in pertinent part:

" . . . The Defendant shall pay to the Plaintiff the sum of $200.00 per month for alimony and support and said monthly payments shall continue until the death of either party, or the remarriage of the Plaintiff, whichever event might occur first. . . . "

The wording of this provision is definitive and clear. See § 9-07-02, N.D.C.C. ¹ The statement that payments shall continue until the death of either party or the remarriage of Bette requires no further explanation. In addition, the district court in its confirmations dated April 13, 1978, and November 28, 1978, was cognizant of its previous order issued April 13, 1978, and the order of Judge Ralph B. Maxwell dated May 20, 1977, which confirmed the findings of fact and conclusions of law of the respective referee, pursuant to Rule 53, N.D.R.Civ.P., which provides that the referee's findings of fact in the instant case must be accepted by the reviewing court unless they appear to be clearly erroneous. Furthermore, the interpretation of a contract is a matter of law that must be determined by the court. Stetson v. Blue Cross of North Dakota, 261 N.W.2d 894 (N.D.1978).

Where a judgment of divorce has been regularly entered, it is largely within the discretion of the trial court to say whether or not the defendant shall be permitted to come in afterwards and attempt to set aside a judgment, and unless an abuse of discretion be made to appear, this court will not interfere. The trial court properly interpreted Section 7 of the property settlement agreement in confirming the referee's findings of fact and conclusions of law. Bettger v. Bettger, 280 N.W.2d 915 (N.D.1979); Kinsella v. Kinsella, 181 N.W.2d 764 (N.D.1970). We conclude that the trial court did not abuse its discretion. See Balsam v. Buehner, 278 N.W.2d 425 (N.D.1979); Zimmerman v. Campbell, 245 N.W.2d 469 (N.D.1976).

John next urges that he was induced to designate the payments as alimony, both by Bette and by her attorney; that he was not represented by counsel; that there was an explicit understanding between Bette and him with reference to the monthly payments in that they were actually for the support of the children; and that he was an alcoholic prior to and during the time the divorce proceedings were pending and finalized and, thus, was unable to comprehend the import of the divorce and its subsequent effect on his...