Fine v. Fine, 9237

• Court: North Dakota Supreme Court
• Writing for the Court: PEDERSON; ERICKSTAD, C.J., and PAULSON; VOGEL and SAND
• Citation: Fine v. Fine, 248 N.W.2d 838 (N.D. 1976)
• Decision Date: 31 December 1976
• Docket Number: No. 9237,9237
• Parties: Elizabeth Josephine FINE, Plaintiff and Appellant, v. James O. FINE, Defendant and Appellee. Civ.

Page 838

248 N.W.2d 838

Elizabeth Josephine FINE, Plaintiff and Appellant, v. James O. FINE, Defendant and Appellee.

Civ. No. 9237.

Supreme Court of North Dakota.

Dec. 31, 1976.

Syllabus by the Court

1. In a divorce action the court has jurisdiction to award the separately owned property of one spouse to the other, even when that separate property was acquired before the marriage.

2. The fact that property subject to distribution was acquired prior to the marriage by one of the parties is a consideration weighing in that spouse's favor, but it does not prevent the court from awarding part or all of that property to the other spouse should an equitable distribution require it.

3. A finding by the trial court is not to be disturbed unless it is clearly erroneous, either upon a clear demonstration that it is without substantial evidentiary support or that it was induced by an erroneous view of the law.

4. A finding that a particular division of property is equitable is appropriately dealt with as a finding of fact.

5. We cannot assume that a trial court ignored the correct rule of law or that the court's finding was induced by an erroneous view of the law when it has requested trial briefs from both prties on the law and the facts, and when such briefs contain a correct exposition of the point of law in issue.

6. Findings of fact and conclusions of law should be stated with sufficient specificity to assist the appellate court, by affording it a clear understanding of the trial court's decision.

7. The practice of simply incorporating as conclusions of law 'the foregoing findings of fact' is not in strict compliance with Rule 52(a), NDRCivP, and by the use of a Rule 52(b) motion, the trial court's findings can be clarified.

8. Some indication that appropriate factors were considered by the trial court in making a property distribution in a divorce action should appear in the memorandum decision or findings of fact and conclusions of law.

Daniel J. Chapman, Bismarck, for plaintiff and appellant.

Lundberg, Nodland & Schulz, Bismarck, for defendant and appellee; argued by Charles W. LaGrave.

PEDERSON, Justice.

The judgment of the district court of Burleigh County, from which the appeal is taken, grants the plaintiff, Elizabeth J. Fine, a divorce from the defendant, James O. Fine, on the ground of irreconcilable differences, makes a division of the property of the parties, and awards alimony to the plaintiff in the sum of $150.00 per month for a period of one year.

Both parties concede on appeal that the divorce was properly granted on the ground of irreconcilable differences. The issues on appeal are: (1) whether the trial court erred as a matter of law in making its division of property under the mistaken belief that property acquired before the marriage and separately owned by one of the spouses could not be awarded to the other spouse; (2) whether the findings of fact, alimony award, and property division are clearly erroneous.

James and Elizabeth Fine were married on October 12, 1968, each for the second time. James had four children from his previous marriage: Charles, Rebecca, Janel and Nathan, each of whom lived with the parties for some period of time during the marriage. The two youngest children, Janel and Nathan, lived with the parties throughout the marriage. Elizabeth had three children by a previous marriage: Constance, Pamela and Daniel. Of these children, only Pamela and Daniel lived with the parties during the marriage.

It appears from the evidence that the two families blended into one family, with both James and Elizabeth becoming close to each other's children. Each parent helped with the daily tasks of raising a family, and contributed in varying degrees to the improvement of the family home and other properties owned by the parties.

In its memorandum decision the trial court found that, at the time of his marriage to Elizabeth, James owned the following property: 'a home in Bismarck complete with appliances, furniture and furnishings, subject to a mortgage; a 348 acre farm at Sheyenne, North Dakota; an $800.00 equity in a grain elevator at Sheyenne, North Dakota; an automobile; a residential lot in Highland Acres, Bismarck, North Dakota; and approximately $10,000 in cash savings.'

Elizabeth contends, on appeal, that in awarding what remains of this property to James, including the home in Bismarck, the trial court mistakenly believed that it could not take into consideration property owned by James prior to the marriage when determining an equitable property settlement. The relevant statute which provides for permanent alimony and division of property in a divorce action is Section 14--05--24, NDCC:

'When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, and may compel either of the parties to provide for the maintenance of the children of the marriage, and to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively. The court from time to time may modify its orders in these respects.'

While there may have been some confusion in the past as to the jurisdiction of the court in a divorce action to award the separate property of one spouse to the other (see Fleck v. Fleck, 79 N.D. 561, 58 N.W.2d 765 (1953)), it is now well settled that the court has such power, even when that separate property was acquired before the marriage. Bellon v. Bellon, 237 N.W.2d 163, 165 (N.D.1976). In that decision we stated:

'Although Fleck v. Fleck, supra, cited this statute, we do not construe the case as holding that the court lacks jurisdiction to determine the distribution of the property of either party in making an equitable distribution. * * *

'We said in Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966), at syllabus 7, that one of the factors to be considered in a division of property between the parties in a divorce action is whether the property was acquired before or after the marriage. We have consistently held that in making an equitable distribution the court shall consider all of the property of the parties, both jointly and individually owned. See Agrest v. Agrest, 75 N.D. 318, 27 N.W.2d 697 (1947), and McLean v. McLean, 69 N.D. 665, 290 N.W. 913 (1940).'

The fact that property subject to distribution pursuant to Section 14--05--24 was acquired prior to the marriage by one of the parties is a consideration weighing in that spouse's favor, but it does not prevent the court from awarding part or all of that property to the other spouse should an equitable distribution require it.

While we agree that appellant has stated the correct rule regarding division of property in a divorce action, we are not persuaded that the trial court misconceived the law in making its property distribution in this case. A finding by the trial court is not to be disturbed unless it is clearly erroneous, either upon a clear demonstration that it is without substantial evidentiary support or that it was induced by an erroneous view of the law. See Stee v. 'L' Monte Industries, Inc., 247 N.W.2d 641, syllabus 1 (N.D.1976).

A finding that a particular division of property is equitable is appropriately dealt with as a finding of fact. Scheid v. Scheid, 239 N.W.2d 833 (N.D.1976); Grant v. Grant, 226 N.W.2d 358 (N.D.1975). Nothing in the court's memorandum decision, findings of fact, or conclusions of law indicates that the court's division of property was induced by an erroneous view of the law. Mrs. Fine argues that paragraph XI of the findings of fact so indicates:

'The Court finds that the evidence clearly establishes no property was accumulated by Mr. Fine during the marriage and That the plaintiff is not entitled to any of the property still owned by Mr. Fine.' (Emphasis added.)

Apparently Mrs. Fine's interpretation would require us to substitute the word 'therefore' for the italicized word. We do not so interpret the paragraph. When the court has requested trial briefs from both parties on the law and the facts, as here, and when such briefs contain a correct exposition of the point of law in issue, we cannot arbitrarily assume that the court chose to ignore it. In DeForest v. DeForest, 228 N.W.2d 919, 924 (N.D.1975), a child custody case in which we were unable to determine if the lower court had considered the best interests of the child, we said:

'Unfortunately in the instant case, neither in the finding on custody nor in the oral opinion do we find any language which indicates that the trial court either considered or found that it was in Peggy's best interests or least detrimental to her that the split custody arrangement be made. * * *

'The purpose of Rule 52(a) is 'to enable the appellate court to obtain a correct understanding of the factual issues determined by the trial court as a basis for the conclusions of law and judgment it entered thereon.' Ellendale Farmers Union Cooperative Ass'n v. Davis, 219 N.W.2d 829, 836 (N.D.1974). * * *

'Before we make a determination of whether the findings of fact are 'clearly erroneous,' we must understand the basis for the decision of the trial court.

'A finding of fact on a controlling issue which fails to show the basis for a trial court's conclusion is held to be clearly erroneous.'

Rule 52(a), NDRCivP, provides in 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;'

We have said repeatedly that findings of fact and conclusions of law should be stated with sufficient specificity to assist the appellate court, by affording it a clear understanding of the trial court's decision. Matson v. Matson, 226 N.W.2d 659 (N.D.1975). The appellate court's task of...