Haugeberg v. Haugeberg, 9358

• Decision Date: 12 October 1977
• Docket Number: No. 9358,9358
• Citation: 258 N.W.2d 657
• Parties: Betty Ann HAUGEBERG, Plaintiff and Appellee, v. Arvid Herman HAUGEBERG, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 657

258 N.W.2d 657

Betty Ann HAUGEBERG, Plaintiff and Appellee, v. Arvid Herman HAUGEBERG, Defendant and Appellant.

Civ. No. 9358.

Supreme Court of North Dakota.

Oct. 12, 1977.

Bjella & Jestrab, Williston, and Herman F. Gierke, III, Watford City, for plaintiff and appellee; argued by Mr. Gierke.

Ella Van Berkom, Minot, for defendant and appellant.

ERICKSTAD, Chief Justice.

In this case Arvid H. Haugeberg, the defendant in an action for divorce instituted by Betty A. Haugeberg, appealed from those parts of the judgment delineating the property division, awarding child support and alimony, and ordering the defendant to pay $1,750 for the plaintiff's attorney fees.

The parties were married in Minot, North Dakota, on February 12, 1956. There have been four children born of this marriage, namely: Thomas Lynn Haugeberg, born August 30, 1956; Carrie Lou Haugeberg, born July 14, 1958; Jeffrey Lee Haugeberg, born June 23, 1960; and Mitchael Lory Haugeberg, born September 23, 1961.

Arvid, at the time of the marriage in 1956, was attending Minot State College. He was graduated from that college with a Bachelor of Science degree three years after their marriage. During this time, he worked 41 hours per week for MDU. After graduation he was employed by International Harvester basically as a salesman. He was a traveling salesman for International Harvester out of Minot and Stanley until 1963 when he went to work for O.K. Implement Company at Watford City, North Dakota. At the time that he started to work for O.K. Implement in 1963, he bought 453 shares of stock in O.K. Implement which represented about 25% of the outstanding stock of the corporation. He gave a $25,000 promissory note for the stock. This note was gradually paid off out of bonuses he earned with the company with the final payment being made in 1974. He sold all of the stock back to the corporation in January 1976, about three months before the divorce action was commenced. In return for his stock, Arvid received a $25,000 promissory note due in January 1979 together with interest accrued at 8% per annum. While he owned stock, Arvid was on the board of directors and held the office of vice president, although his primary duty was that of a salesman. He is currently working for O.K. Implement as a salesman. Arvid has had a problem with high blood pressure and was in intensive care units three times in 1974 for a heart condition. He also has had an alcohol problem for which he has received treatment at Heartview in Mandan and at A.T.U. at St. Josephs Hospital in Minot. He now believes he has this problem under control.

Betty is 40 years old and has a high school education. She was employed outside of their home while Arvid was going to school, taking time off, for short periods, for the birth of their children. She did not work outside the home from 1959 until they moved to Watford City in 1963. Since moving to Watford City, she has worked as a babysitter and as a part time bookkeeper and she is currently employed as a bookkeeper for two firms in the city.

The action for divorce was commenced by Betty by service of the summons and complaint on Arvid on April 19, 1976. Betty Betty was awarded an absolute decree of divorce on the grounds of irreconcilable differences.

also made a motion for an order to show cause why the court should not grant a temporary restraining order requiring her husband to leave the family home and providing for child custody, support, and visitation. A restraining order was entered pursuant to a stipulation of the parties in May of 1976. The action was tried in the Fifth Judicial District at Watford City on August 25, 1976. Under the judgment dated February 1, 1977:

Betty was awarded custody of the two minor children subject to reasonable visitation rights on behalf of Arvid.

Arvid was required to pay $150 per month for each minor child until the particular child reached the age of 18 or ceased to be Betty's dependent.

Arvid was ordered to pay $300 a month as alimony until January, 1979, for a total amount of $7,800.

Betty was to receive the parties' home with an equity of $29,197.85.

Betty was to receive the proceeds of the sale of stock, i.e. the $25,000 note along with accrued interest.

Betty was to receive the personal property in the home with the exception of certain stated possessions which went to Arvid.

Betty was to assume all obligations with regard to the indebtedness against the family home and Arvid was to assume all other indebtedness of the parties.

Arvid was to pay $1,750 for Betty's attorney fees.

It is in regard to the above award of alimony, child support, attorney fees, and division of property that Arvid appeals to this court.

The law in this area is quite clear and has been stated many times in the past by this court. The trial court's determination on matters of child support, alimony, and division of property are treated as findings of fact. Kostelecky v. Kostelecky, 251 N.W.2d 400 (N.D.1977); Larson v. Larson,234 N.W.2d 861 (N.D.1975). Our scope of review on appeal of these findings is limited by Rule 52(a), N.D.R.Civ.P., and thus we will not set aside those findings unless they are clearly erroneous. A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. Kostelecky v. Kostelecky, supra; Rambel v. Rambel,248 N.W.2d 856 (N.D.1977); In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973).

There is no clear rule by which division of property is to be made in a divorce case and the determination of what is an equitable division lies within the discretion of the trial court. Kostelecky v. Kostelecky, supra; Johnson v. Johnson, 211 N.W.2d 759 (N.D.1973). However, the trial court is given some guidelines to follow in making these determinations. Section 14-05-24, N.D.C.C., states:

"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."

This court has stated that in determining the division of property under this section, the trial court may consider the respective ages of the parties to the marriage, their earning abilities, the duration of the marriage and 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, whether accumulated before or after the marriage Likewise, attorney's fees stemming from an action for divorce are to be awarded in the discretion of the trial court. The trial court's decision as to whether or not attorney's fees will be awarded will not be interfered with on appeal unless the appealing party affirmatively establishes that the trial court has abused its discretion. Bohnenkamp v. Bohnenkamp, supra; Hoster v. Hoster, 216 N.W.2d 698 (N.D.1974); Halla v. Halla, 200 N.W.2d 271 (N.D.1972).

and such other matters as may be material. E. g. Bohnenkamp v. Bohnenkamp, 253 N.W.2d 439 (N.D.1977); Johnson v. Johnson, supra; Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966).

The trial court, in its memorandum opinion, stated: "In making a determination in this case the Court is bound by the factors set forth in Fischer v. Fischer, 139 N.W.2d 845. I have reviewed these factors and I have considered them in arriving at this determination."

We must review the trial court's decision also in light of the Fischer guidelines to determine whether it is clearly erroneous and, if found to be clearly erroneous, in what respects it is so.

The trial court in its findings of fact stated at paragraph XXVI that the financial condition of the parties is as follows:

ASSETS:

                ---------------------------------------------------------------
                Note from OK Implement                                           $25,000.00
                Equity in residence                                               29,197.85
                Household goods, furniture and other personal
                property in residence insurable value                             10,000.00
                Furniture and furnishings in possession of defendant               1,500.00
                Cash belonging to defendant in possession of defendant's father    2,000.00
                Cash in plaintiff's possession                                       341.47
                Profit sharing                                                    12,828.04
                                                                                 ----------
                                                                                 $80,867.36
                

LIABILITIES:

---------------------------------------------------------------

                First International Bank                                         $ 1,000.00
                Bob's Appliance                                                      562.64
                Standard Oil                                                         225.00
                MDU                                                                   17.30
                Fargo and Minot Hospital and Miscellaneous                         1,000.00
                                                                                 ----------
                                                                                 $ 2,804.94
                NET                                                              $78,062.42
                

Although conflicting values are ascribed to the personal property retained by Betty, varying between $5,000 and $10,000; and although the value of certain property taken from the household by Arvid has not been determined; we think that, for the...