Ferguson v. Ferguson

• Decision Date: 30 November 1972
• Docket Number: No. 8845,8845
• Citation: 202 N.W.2d 760
• Parties: Mildred Joann FERGUSON, Plaintiff and Appellant, v. Arnold Roger FERGUSON, Defendant and Respondent. Civ.
• Court: North Dakota Supreme Court

Page 760

202 N.W.2d 760

Mildred Joann FERGUSON, Plaintiff and Appellant, v. Arnold Roger FERGUSON, Defendant and Respondent.

Civ. No. 8845.

Supreme Court of North Dakota.

Nov. 30, 1972.

Syllabus by the Court

1. The scope of review of the findings of a district court on an appeal to this court from a case tried without a jury is limited by Rule 52(a) of the North Dakota Rules of Civil Procedure.

2. In applying Rule 52(a), N.D.R.Civ.P., to appeals, the initial determination which must be made is whether the particular findings complained of are findings of fact and thus are subject to the 'clearly erroneous' Rule of 52(a), N.D.R.Civ.P., or whether they are conclusions of law and are fully reviewable by this court on appeal.

3. Findings that a party to a divorce action has committed adultery, that the best interests of the children of the parties to a divorce action would be served by awarding custody of the children to one party as opposed to the other, and that a particular division of property between the parties to a divorce action is eqitable, are appropriately dealt with on appeal as findings of fact. Consequently, a review of these findings is limited to a determination of whether or not they are 'clearly erroneous' within the purview of Rule 52(a), N.D.R.Civ.P.

4. A finding of adultery may be supported by direct or circumstantial evidence.

5. The paramount factor to be considered by a district court in awarding custody of children is the best interests of the children.

6. To assist a court in making a particular award of custody, § 30--10--06, N.D.C.C., sets out specific criteria. One such criterion is the child's preference as to custody, if the child is of sufficient age to form an intelligent preference. However, this preference is not controlling. Another criterion which assists a court in making its award of the custody of the children of the parties in a divorce proceeding is the statutory preference for an award of the custody of a child of tender years to the mother if other things are equal.

7. Section 14--05--24, N.D.C.C., grants to a district court the power in a divorce action to make such an equitable distribution of the real and personal property of the parties as may seem just and proper.

8. Section 14--05--25, N.D.C.C., provides that a district court, in rendering the decree of divorce, may assign the homestead or such part thereof as to the court may seem just, to the innocent party, either absolutely or for a limited period, according to the facts in the case.

9. In determining a division of property between the parties in a divorce action, the court, in exercising its sound discretion, will consider the respective ages of the parties; their earning ability; the duration of the marriage; the 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 accumulated or acquired before or after the marriage; and such other matters as may be material.

DePuy, Fair & O'Connor, Grafton, for plaintiff and appellant.

Dahl, Dahl & Greenagel, Grafton, for defendant and respondent.

PAULSON, Judge.

The plaintiff, Mildred Joann Ferguson (hereinafter Mildred), and the defendant, Arnold Roger Ferguson (hereinafter Arnold), were married in Adams, North Dakota, on December 8, 1956. There were three children born as the issue of their marriage, namely: Joleen, born in 1957; Jeffrey, born in 1959; and Jacalyn, born in 1962.

Mildred commenced an action for divorce in January 1970 which the district court dismissed. On July 14, 1970, a decree of separate maintenance was issued by the district court. A second action for divorce was commenced by Mildred on January 7, 1971, wherein she alleged extreme cruelty and grievous mental and physical suffering. The complaint in that action was later amended to allege, in addition, irreconcilable differences of the parties. Arnold filed a cross-complaint, alleging adultery on the part of Mildred. The action was tried to the court, commencing on August 24, 1971, and judgment was entered on September 8, 1971. The court awarded Mildred a divorce on the ground of irreconcilable differences and awarded Arnold a divorce on the ground of adultery. The district court also found that Arnold was entitled to the custody of Jeffrey and Jacalyn, the two youngest children of the parties, and that Mildred was entitled to the care of the oldest child, Joleen. The court further found that the defendant, Arnold, was entitled to possession of the homestead owned by the parties and to the personal property therein, except for such items as may ordinarily be associated with the child, Joleen, and such other furniture and fixtures which could reasonably be released without disrupting or totally incapacitating the household.

The plaintiff, Mildred, has appealed from that part of the divorce judgment awarding a divorce to Arnold on the ground of adultery, providing for the custody of the children of the marriage, and ordering a distribution of the property of the parties. She has assigned three specifications of error.

The first specification of error charges that the finding of the district court that she had committed adultery is not supported by the evidence. The second specification charges that the finding of the district court that the best interests of the children, Jeffrey and Jacalyn, would be served by awarding their custody to their father, Arnold, is not supported by the evidence. The third specification charges that the finding of the district court that Arnold is entitled to possession of the homestead and part of the personal property contained therein is not supported by the evidence.

The scope of review of the findings of a district court on an appeal to this court from a case tried without a jury is limited by Rule 52(a) of the North Dakota Rules of Civil Procedure, which provides, in pertinent part:

'In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; and in granting or refusing temporary injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. . . .' (Emphasis added.)

In applying this Rule to appeals, the initial determination which must be made is whether the particular findings complained of are findings of fact and are subject to the 'clearly erroneous' Rule of 52(a), N.D.R.Civ.P., or whether they are conclusions of law and are fully reviewable by this court on appeal. Schatz v. Jerke, 199 N.W.2d 908 (N.D.1972); 5a Moore's Federal Practice (2d ed.) 52.05(1), p. 2693. In making this determination, the labels placed upon the findings by the district court are not conclusive. Houck v. Hinds, 215 F.2d 673 (10th Cir. 1954); State Farm Mutual Automobile Insurance Company v. Brooks, 136 F.2d 807 (8th Cir. 1943), cert. den. 320 U.S. 768, 64 S.Ct. 80, 88 L.Ed. 459.

A review of the decisions of other courts which have applied the 'clearly erroneous' rule to divorce actions indicates that findings that a party to a divorce action has committed adultery, that the best interests of the children of the parties to a divorce action would be served by awarding custody of the children to one party as opposed to the other, and that a particular division of property between the parties to a divorce action is equitable, have all been appropriately dealt with on appeal as findings of fact. Spencer v. Spencer, 258 Md. 281, 265 A.2d 755 (1970); Franklin v. Franklin, 257 Md. 678, 264 A.2d 829 (1970); Meredith v. Meredith, 91 Idaho 898, 434 P.2d 116 (Idaho 1967); Ingram v. Ingram, 385 S.W.2d 69 (Ky.1964). We adopt this reasoning. Consequently, our review of the judgment from which Mildred has appealed is limited to a determination of whether or not the findings of fact of the district court are 'clearly erroneous' within the purview of Rule 52(a), N.D.R.Civ.P. Schatz v. Jerke, Supra; Strandness v. Montgomery Ward, 199 N.W.2d 690 (N.D.1972).

At the outset, we shall review the finding of the district court that Mildred had committed adultery, as was alleged in the cross-complaint. However, in reviewing the finding of adultery we believe that no useful purpose would be served by commenting upon all of the evidence which the defendant, Arnold, introduced in support of his cross-complaint.

While no direct evidence of adulterous conduct was introduced, the law is well settled that adultery may be proved by direct or circumstantial evidence. Rott v. Goehring, 33 N.D. 413, 157 N.W. 294 (1916); Baker v. Baker, 166 Neb. 306, 89 N.W.2d 35 (1958). As for circumstantial evidence of adultery, it should be sufficient for the purposes of this review to say, as this court did in Agrest v. Agrest, 75 N.D. 318, 27 N.W.2d 697, 702 (1947), quoting with approval from Thayer v. Thayer, 101 Mass. 111, 100 Am.Dec. 110, that the circumstances were such as to

"lead the guarded discretion of a reasonable and just man to the conclusion of guilt'.'

Finally, the record contains evidence that Mildred admitted committing adultery. Thus, on the basis of the record before this court we conclude that the finding of the district court that the plaintiff, Mildred, had committed adultery, was not 'clearly erroneous'. Rule 52(a), N.D.R.Civ.P.

Section 14--05--22, N.D.C.C., grants to a district court the power in a divorce action to award as it may deem proper the custody of the children of a marriage....