Davis v. Davis, 890342

• Decision Date: 03 July 1990
• Docket Number: No. 890342,890342
• Citation: 458 N.W.2d 309
• Parties: Geri G. DAVIS, Plaintiff and Appellant, v. Jay D. DAVIS, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 309

458 N.W.2d 309

Geri G. DAVIS, Plaintiff and Appellant, v. Jay D. DAVIS, Defendant and Appellee.

Civ. No. 890342.

Supreme Court of North Dakota.

July 3, 1990.

Lundberg, Nodland, Schulz, Lervick, Tharaldson & Dickson, P.C., Bismarck, for plaintiff and appellant; argued by Ardell Tharaldson.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, for defendant and appellee; argued by Pamela J. Hermes.

ERICKSTAD, Chief Justice.

Geri Davis appeals from a divorce judgment of the District Court for Cass County, granting her a divorce from Jay Davis and making a division of property of the marital estate. We deny the motion to dismiss and affirm.

Jay and Geri were married on December 29, 1969. They were both 40 years old at the time of trial. Their 19 year marriage began as they were both in the final year of obtaining undergraduate degrees from the University of North Dakota. Geri earned her degree in Elementary Education, while Jay earned his degree in Business. In 1970, they moved to Bismarck, North Dakota. Geri got a job teaching the second grade, while Jay began working in the family auto dealership, which he contends he received an interest in prior to the marriage through gifts from his grandfather.

Geri stopped working in 1974 in anticipation of beginning a family. They have two children, twins who were born in 1976. Jay continued to work in the auto dealership. During the marriage, Jay was able to purchase additional stock in the dealership as a result of an option obtained for him at no cost to his family. In 1978, Jay sold his interest in the Bismarck dealership for a cash payment of $480,000. The parties then moved to Moorhead, Minnesota. There, Jay purchased a Chevrolet dealership for a total price of $560,000. Of that amount, $350,000 was initially put into the dealership, with the remainder being financed.

Geri stayed at home with the twins until they began Kindergarten. She then began working part-time as a tutor. After the children began the first grade, Geri began teaching full-time.

In 1980, Jay received a Small Business Administration loan of $250,000 and a loan of $100,000 from his father's family trust. This money was interjected into his auto dealership. In 1981, Jay merged his Moorhead dealership with a Fargo Chevrolet dealership. Jay operated his Fargo-Moorhead dealership and Geri continued as a full-time teacher until August of 1985. At that time, Jay sold his interest in the Fargo-Moorhead dealership for a cash payment of $200,000 and $5,000 a month for 24 months. After the sale of the dealership, Jay and Geri moved to Dallas, Texas, but returned to Fargo, North Dakota, to live in September of 1986.

Upon their return to Fargo, Geri secured employment with the Fargo Public School System as a teacher in the "Gifted and Talented Program." She continues as a full-time elementary teacher in that program. In January of 1987, Jay purchased the Aamco Transmissions business in Fargo, for a total of $115,000. Jay paid $50,000 of the purchase price with cash he had received from the sale of his Fargo-Moorhead dealership. The balance was financed with a local bank. Jay continues to be the sole owner and proprietor of Aamco Transmissions.

Geri filed for a divorce on October 25, 1988. At the outset of the trial, the parties stipulated as to all matters regarding their children and to a division of their household property. No spousal support and no child support was requested or awarded. Jay has custody of the children. The trial court made a distribution of the property of the marital estate.

On appeal, Geri argues that three decisions made by the trial court were clearly erroneous and constitute reversible error. First, she contends that the findings of fact drafted by counsel for Jay went beyond the oral findings and conclusions of the trial court articulated pursuant to Rule 52 of the North Dakota Rules of Civil Procedure. Secondly, Geri contends that using the values assigned by the court, she received only $38,938 of the marital estate, while Jay received $194,104. Finally, Geri contends that the trial court's acceptance of Jay's financial statement pursuant to the divorce proceeding, which varied greatly from a previous financial statement issued by Jay in a business matter, violated public policy.

Jay filed a motion to dismiss the appeal pursuant to Rule 27 of the North Dakota Rules of Appellate Procedure upon the ground that Geri accepted substantial benefits pursuant to the divorce judgment and thereby waived her right to appeal. We will first consider Jay's motion to dismiss.

The general rule in North Dakota is that a party to a divorce action who accepts substantial benefits pursuant to a divorce judgment thereby waives the right to appeal from the judgment. White v. White, 434 N.W.2d 361, 363 (N.D.1989); Brodersen v. Brodersen, 374 N.W.2d 76, 77 (N.D.1985). However, in White, supra at 363, we said:

"We recognized in Sanford v. Sanford, [295 N.W.2d 139, 141-42 (N.D.1980) ], that the general rule was subject to several recognized exceptions:

'In Tyler v. Shea, 4 N.D. 377, 61 N.W. 468 (1894), we said:

' "Where the reversal of the judgment cannot possibly affect the appellant's right to the benefit he has secured under the judgment, then an appeal may be taken, and will be sustained, despite the fact that the appellant has sought and secured such benefit." 4 N.D. at 381, 61 N.W. at 469.

'This exception was further expounded in Boyle v. Boyle, 19 N.D. 522, 524, 126 N.W. 229, 230 (1910), wherein we held:

' "If a provision of the judgment appears to have been fixed by consent, or is undisputed, or, for any reason, cannot be changed or reversed by the appeal, an acceptance of the benefit given by such provision is not a waiver of the appeal."

'Moreover, in Grant v. Grant, [226 N.W.2d 358 (N.D.1975) ] supra we recognized that the rule which bars a subsequent appeal when substantial benefits of a divorce judgment are accepted is not absolute when we said:

' "Before the waiver of the right to appeal can be found to exist, there must be an unconditional, voluntary, and conscious acceptance of a substantial benefit under the judgment." 226 N.W.2d at 361.

* * * * * *

'In addition to the exceptions recognized above, this court has also held that:

' "It is both practical and just that if one jointly or individually possesses an asset during the pendency of a divorce action and is subsequently awarded that asset by the divorce judgment, he should not have to divest himself of that asset before appealing the judgment. This is most obvious when the asset is a necessity of life." Piper v. Piper, 234 N.W.2d at 623 [ (N.D.1975) ].

* * * * * *

'Finally, in Hoge v. Hoge, 281 N.W.2d 557 (N.D.1979), we recognized a caveat to the general principle that acceptance of benefits under a judgment of divorce precludes a later appeal.... We said in Hoge that a party is not estopped from an appeal of a divorce judgment by the acceptance of alimony and property "to which he or she was entitled as a matter of right." 281 N.W.2d at 563.' "

Jay contends that in accepting the benefits of the following items pursuant to the divorce judgment, Geri has waived her right to appeal: Titles to and possession of the Lincoln and Triumph cars, the Moorhead Country Club stock, $3,851.27 in joint income tax refund checks which were endorsed by Jay, and checks from Jay's personal checking account in satisfaction of the division of cash required by the court after certain debts had been paid. Jay asserts that none of the exceptions apply in this case and that Geri has therefore waived her right to appeal, citing White v. White, 434 N.W.2d 361, supra, in support of his assertion.

In White, Martha White appealed a property division and award of spousal support. Prior to entry of the formal judgment, Martha forwarded to Thomas, her husband, a quitclaim deed for him to sign as to the homestead which was jointly owned real property. Instead, Thomas prepared and signed a warranty deed to Martha for the homestead. Martha also demanded a bill of sale from Thomas for their bar and requested that Thomas sign off of the bar's liquor license, which was done as requested. Titles to the motor vehicles were signed and exchanged, war bonds were divided, and the coin collections were divided. We ruled:

"After taking into account the affirmative actions taken by Martha to transfer title to the homestead to her name, to transfer rights to the bar and liquor license, and to divide the remaining items of property of substantial value, we conclude that Martha accepted substantial benefits under the divorce judgment and therefore Martha waived her right to appeal. Accordingly, Thomas' motion to dismiss Martha's appeal is granted."

White at 363-64.

In Geier v. Geier, 332 N.W.2d 261 (N.D.1983), we also dismissed an appeal based upon a substantial acceptance of benefits under the divorce judgment. Edna Geier appealed the property division of the divorce judgment. Subsequent to the entry of judgment, but at Edna's request, Charles Geier executed both deed and title in a jointly owned mobile home to Edna. We said:

"In this case Edna took affirmative steps to have title of jointly held real estate transferred to her name before appealing to this Court. In considering the property awarded to Edna pursuant to the divorce judgment, most of that property, except the mobile home, was her separate property which she would have clearly been entitled to without the divorce decree. In view of the trial court's finding that Charles paid for the mobile home and the understanding between Charles and Edna ... we are not satisfied that Edna would have been entitled to the mobile home but for the divorce decree. Taking into account the affirmative actions taken by Edna to transfer title to the mobile home to her name and the fact that the mobile home was the only item of property awarded to Edna which was not her separate property, we...