Fischer v. Fischer, 10569

• Decision Date: 17 May 1984
• Docket Number: No. 10569,10569
• Citation: 349 N.W.2d 22
• Parties: Margaret FISCHER, Plaintiff and Appellant, v. Mike FISCHER, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 22

349 N.W.2d 22

Margaret FISCHER, Plaintiff and Appellant, v. Mike FISCHER, Defendant and Appellee.

Civ. No. 10569.

Supreme Court of North Dakota.

May 17, 1984.

Fabian E. Noack, Carrington, for plaintiff and appellant; submitted on briefs.

Robert C. Heinley, Carrington, for defendant and appellee; submitted on briefs.

SAND, Justice.

Margaret Fischer appealed from a judgment in which she was granted a divorce from her husband, Mike Fischer, on grounds of irreconcilable differences. She contended that the court failed to make an equitable distribution of the property.

Mike and Margaret Fischer were married in 1964 and divorced in August 1983. At the time of the divorce both were 65 years of age or older. Both were previously married. Mike's first marriage ended in divorce. See Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). Margaret's first marriage ended upon the death of her husband. Margaret had six children by her previous marriage who, at the time of her marriage to Mike, were between eight and eighteen years old. Mike had no children by his previous marriage, and no children were born during Mike and Margaret's marriage. Mike did not adopt any of Margaret's children.

At the time of the marriage Mike had a 440-acre farm located near Chaseley, North Dakota (350 tillable acres), farm machinery sufficient to farm 840 acres, several bonds totaling $17,500.00, and about $33,000.00 in cash. He continued to farm until 1970 when he retired and decided to rent his land. Mike currently receives about $478.00 per month from social security, plus interest income and cash rent.

Margaret, at the time of the marriage, had a house in Chaseley, a car, household goods, $3,500.00 in certificates of deposit, and several bonds with a face value of $5,350.00. (Counsel for Margaret asserted that the trial court miscalculated the face value of the bonds, that their actual face value was $7,550.00. The brief provided no support for the assertion.) In 1976 she inherited $8,975.00. Margaret worked as postmaster in Chaseley until she retired in 1981. When she retired she was earning $13,000 per year. She also received payments from the Postal Service of about $1,000.00 per year for the rental of her house. She currently receives a pension from the postal service of about $450.00 per month, plus $208.00 per month social security based upon Mike's account. She also receives some interest income.

Neither Mike nor Margaret have any significant debts. At the time of the divorce Mike had three CD's in his name totaling $35,000.00. Margaret had several CD's in her name totaling $62,000.00. The couple also acquired government bonds during their marriage totaling $14,000.00. During the marriage additional bonds were acquired, some of which were acquired from the farming activities. Also, some bonds were either converted into cash or put in CD's making it difficult, if not impossible, to accurately trace or account for all of the money involved. Unfortunately, the transcript and exhibits are not very helpful in this respect. We also recognize that the ordinary family does not keep detailed records comparable to a business.

The trial court awarded Mike $21,500.00 worth of bonds (face value), $45,000.00 worth of CD's and cash, the 440 acres of farm land which the court valued at $184,000.00, and about $4,000.00 in other personal property. The net value of Mike's distribution was approximately $254,500.00. The court awarded Margaret her home in Chaseley valued at $7,500.00, $3,200.00 worth of bonds (face value) (many bonds that Margaret brought to the marriage had been converted to CD's), $52,000.00 in CD's and cash, and $8,954.00 in other personal property. The net value of Margaret's distribution was approximately $71,654.00. The divorce decree did not provide for any alimony or spousal support. Neither of the parties contended that the court erred in this respect.

In a divorce action the trial court must make an equitable distribution of the parties' property based upon the respective circumstances of the parties. North Dakota Century Code Sec. 14-05-24. There are no fixed and rigid rules by which the trial court is to divide the marital estate. Martin v. Martin, 307 N.W.2d 541, 543 (N.D.1981). What is an equitable distribution depends upon the facts and circumstances of each case. Ibid.

We have said that marriage in a sense is a partnership. Jones v. Jones, 310 N.W.2d 753 (N.D.1981), and Rummel v. Rummel, 265 N.W.2d 230 (N.D.1978). However, as a result the property owned or acquired prior to marriage does not become community property upon marriage. This is in complete harmony with the Ruff-Fischer guidelines which have been adopted by this Court as an aid to making equitable distribution of the property. See Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, supra. Those guidelines permit the trial court to consider the respective ages of the parties, their earning ability, the duration of 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 and its income-producing capacity, if any, and whether it was acquired before or after the marriage, and such other matters as may be...