Harwood v. Harwood, s. 9611
Decision Date | 02 August 1979 |
Docket Number | Nos. 9611,9611-A,s. 9611 |
Citation | 283 N.W.2d 144 |
Parties | Elizabeth K. HARWOOD, Plaintiff and Appellant, v. William R. HARWOOD, Defendant and Appellee. Civ. |
Court | North Dakota Supreme Court |
Conmy, Feste & Bossart, Fargo, for plaintiff and appellant; argued by David Bossart, Fargo.
Lamb, Schaefer & McNair, Fargo, for defendant and appellee; argued by Alice K. Olson, Fargo.
These are two appeals involving the divorce of Elizabeth and William Harwood. Elizabeth appeals from the judgment and argues that the property division is inequitable. William appeals from an order, apparently intended as a clarification of the judgment, entered eight days after Elizabeth's appeal had been filed with the clerk of the district court. Elizabeth has moved that we dismiss William's appeal.
The order that William has appealed from is, in effect, an amendment of the judgment after an appeal therefrom and, in part, relates to matters which occurred subsequent to the entry of judgment. A trial court has a continuing jurisdiction to modify, from time to time, its orders relating to "maintenance of the children" and "allowances" (§ 14-05-24, NDCC; see also, Becker v. Becker, 262 N.W.2d 478 (N.D.1978)). There is a very limited exception for trial court functions relating to the appeal itself. Jurisdiction of the supreme court attaches upon the filing of the appeal and the trial court has no further jurisdiction in the matter. 1 Orwick v. Orwick, 152 N.W.2d 95 (N.D.1967). The trial court order made after appeal is void for lack of jurisdiction. In re Estate of Brudevig, 175 N.W.2d 574 (N.D.1970); Hermes v. Markham, 78 N.D. 268, 49 N.W.2d 238 (1951); Muhlhauser v. Becker, 76 N.D. 402, 37 N.W.2d 352 (1948). Elizabeth's motion to dismiss William's appeal is granted.
Recently, in Hultberg v. Hultberg, 259 N.W.2d 41, 46 (N.D.1977), we said:
In Mattis v. Mattis, 274 N.W.2d 201, 205 (N.D.1979), we said:
See also, Bender v. Bender, 276 N.W.2d 695 (N.D.1979).
The findings of fact made by the trial court in this case, which relate to property division, are:
Prior to the trial judge's adoption of the above-quoted findings of fact, he issued a memorandum decision and two addenda memorandum decisions. Elizabeth argues that it is obvious that the court was having difficulty in reaching a final conclusion and that "it may very well be that the court was confused" as to the value of vested renewals as accumulation of property.
In Schmidt v. Plains Electric, 281 N.W.2d 794 (N.D.1979), this court said:
The trial court's memorandum opinion or decision cannot be used by Elizabeth to impeach the trial court's findings of fact. See Kack v. Kack, 142 N.W.2d 754, 763 (N.D.1966).
All of the trial court's findings of fact are supported by substantial evidence. A particular finding of fact is held to be clearly erroneous when, although there is some evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been...
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