Davis v. Davis
| Decision Date | 13 July 1978 |
| Docket Number | No. 9473,9473 |
| Citation | 268 N.W.2d 769 |
| Parties | Lyle James DAVIS, Plaintiff-Appellant, v. Paula Catherine DAVIS, Defendant-Appellee. Civ. |
| Court | North Dakota Supreme Court |
Pearson & Christensen, Grand Forks, for plaintiff and appellant; argued by Garry A. Pearson, Grand Forks.
Shaft, McConn & Fisher, Grand Forks, for defendant and appellee; argued by Patrick W. Fisher, Grand Forks.
The plaintiff, Lyle James Davis (hereinafter Lyle), and the defendant, Paula Catherine Davis (hereinafter Paula), were married in Grand Forks on July 23, 1972. Paula had previously been married and divorced. There were two children born as the issue of her first marriage, namely, Rachel Ann, born March 4, 1970, and Mary Carolyn, born July 7, 1971, both of whom were adopted by Lyle in 1975. Two children were born as issue of their marriage, namely, Michael James Davis, born October 28, 1973, and Patrick Lyle Davis, born September 9, 1975.
Lyle commenced this divorce action in November of 1976, alleging irreconcilable differences. On November 24, 1976 Paula answered, denying the allegations of the complaint and requesting a dismissal of the Lyle appealed from the judgment and from the order denying a new trial. The court granted a divorce to Paula on the ground of adultery. The district court awarded the following property to Paula: (1) the homestead, subject to the mortgage; (2) the personal property therein; (3) the custody of the four minor children; (4) child support in the sum of $200.00 per month for each child; (5) alimony in the sum of $1,600.00 per month; (6) her personal checking account; and (7) the sum of $80,000.00 as a cash settlement, which sum was divided as follows: $10,000.00 payable to Paula within 90 days after the date of the judgment, the remaining balance of $70,000.00, plus interest, payable in thirty-six equal monthly installments with interest at the rate of 7 percent on the unpaid balance, the first payment to commence October 1, 1982, except that the annual interest payments in the amount of $4,900.00 per year shall be paid on or before 30 days following each anniversary date of the judgment, commencing in 1978 and continuing in 1979, 1980, and 1981, and through September 30, 1982. The interest payments were to be in addition to other child support and alimony.
action. On March 30, 1977, pursuant to the stipulation of the parties, Paula amended her answer and also counterclaimed, alleging adultery, and praying for a divorce, custody of the four children, child support, alimony, and an equitable division of the property. The action was tried to the court on September 1 and 2, 1977, and judgment was entered on November 15, 1977. Thereafter Lyle moved for a new trial and, after a hearing, the court, on February 2, 1978, entered an order denying a new trial.
The court awarded to Lyle the following property: (1) all of his stock in Davis Jewelry, Inc.; (2) the Trepanier building; (3) all bank accounts presently in his name; (4) all other stock presently owned by him; (5) all personal property presently in his possession; and (6) the residence at Manvel, North Dakota, subject to indebtedness.
Lyle has appealed from that part of the divorce judgment in which the trial court divided the parties' property, and awarded alimony and attorney fees.
We are first confronted with the question of whether or not Lyle's motion for a new trial, based solely upon newly discovered evidence, which motion was denied by the district court, limits Lyle's appeal to this single issue. When a party appeals from an order denying a new trial, the review in this court is limited to those grounds which were presented to the district court. However, when there is an appeal from the judgment, the appeal is not limited to those issues raised in a motion for a new trial. All issues which were properly preserved at the trial and raised on appeal are reviewable.
We shall now discuss the issues presented to this court, which are as follows:
(1) Whether or not the trial court's distribution of property and the award of alimony were clearly erroneous.
(2) Whether or not the trial court committed reversible error in its application of the law concerning the distribution of property under the divorce decree to the children.
(3) Did the trial court err in finding that the appellee did not have sufficient moneys to pay her attorney fees and that the amount of $2,853.70 was reasonable?
Lyle requests this court to reverse the trial court's award to Paula of $1,600.00 per month alimony and also the property award to Paula of $80,000.00. Lyle also requests this court to reduce the attorney fees which the trial court awarded to Paula's attorney. However, Lyle does not contest the ground upon which Paula was granted a divorce. Nor does he appeal the award of custody of the four minor children to Paula, the award of $200.00 monthly support payments for each of the minor children during their respective minorities, or the award to Paula of the Belmont home, together with its furnishings.
The court has adopted the rule that the review of the judgment on appeal is limited to whether or not the findings of
fact are clearly erroneous within the provisions of Rule 52(a) of the North Dakota Rules of Civil Procedure, and, thus, we will not set aside those findings unless they are clearly erroneous. This court stated in Haugeberg v. Haugeberg, 258 N.W.2d 657, 659 (N.D.1977):
The trial court's determinations on matters of child support, alimony, and division of property are treated as findings of fact, and our review of such matters on appeal is limited by Rule 52(a), N.D.R.Civ.P. Haugeberg, supra.
In determining whether the trial court erred in dividing the property between Lyle and Paula, we are governed by the provisions of § 14-05-24, of the North Dakota Century Code, which grants to a district court in a divorce action the power to make such an equitable distribution of the real and personal property as may seem just and proper. Section 14-05-24, N.D.C.C., provides as follows:
This court must also give consideration to § 14-05-25, N.D.C.C., which provides:
Lyle urges that the award of alimony in the sum of $19,200.00 per year during Paula's lifetime or until she remarries is unrealistic and exorbitant, in comparison with the property which was awarded to him, and, specifically, places an unusual financial burden upon him in view of his financial condition, as shown by the evidence adduced in support thereof. Lyle testified that he commenced his employment during the Fall of 1971 with Davis Jewelry, Inc. (a close corporation) owned by his father and mother. Prior to that time he was employed by other persons outside the State of North Dakota. The jewelry store was founded by Roy Davis, Lyle's father, in 1937, and was owned and operated by Roy Davis and his wife as majority stockholders until August 1, 1977. Lyle purchased the majority stock owned by Roy Davis (323 shares) and by Vonnie Davis (10 shares).
On December 31, 1976, Davis Jewelry, Inc., a Subchapter S corporation, had a total of 509 shares, which were owned as follows:
During the years of his marriage, Lyle's salary was paid on a weekly basis, as follows: in 1972, $200.00; in 1973, $250.00; in 1974, $250.00; in 1975, $300.00; and in 1976, $350.00. Davis Jewelry, Inc., at the end of each year, paid either a bonus or a dividend on Lyle's shares of stock, as well as on the shares owned by Roy and Vonnie Davis. Lyle's dividend income was returned to the corporation in order to pay for his shares of stock, as well as for his state and federal income taxes. Lyle further testified that Paula and he lived on the salary which he rece...
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