Hecker v. Hecker, 890062

• Decision Date: 20 November 1989
• Docket Number: No. 890062,890062
• Citation: 448 N.W.2d 207
• Parties: Arvilla M. HECKER, Plaintiff and Appellee, v. George HECKER, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 207

448 N.W.2d 207

Arvilla M. HECKER, Plaintiff and Appellee, v. George HECKER, Defendant and Appellant.

Civ. No. 890062.

Supreme Court of North Dakota.

Nov. 20, 1989.

Howe, Hardy, Galloway & Maus, P.C., Dickinson, for plaintiff and appellee; argued by Gerald D. Galloway, Dickinson.

William G. Heth, argued, Dickinson, for defendant and appellant.

ERICKSTAD, Chief Justice.

George Hecker appeals from a district court judgment granting Arvilla Hecker a divorce from him. George asserts on appeal that the trial court's distribution of marital property is clearly erroneous. We disagree and, accordingly, affirm the divorce judgment.

George and Arvilla were married on May 1, 1959. At the time of their marriage, George was 50 years old and Arvilla was 38 years old. It was George's first marriage and the second for Arvilla, whose first husband was killed in World War II. Arvilla, who had a daughter from her first marriage, lived in South Heart and was employed as a postmistress during the parties' marriage until her retirement in 1982. George ran a small grain farming and livestock operation in Billings County until his retirement in 1972, when the farmland, machinery, and livestock were sold. During this period, George occasionally held other jobs to supplement the farm income. The parties had two sons, both of whom are now adults.

At the time of the divorce trial in October 1988, George was 80 years old and was in relatively good health. He currently receives $992 per month in social security benefits and disability benefits from a previous work-related shoulder injury. Arvilla was 68 years old, had been diagnosed as having cancer, and was undergoing treatment. She currently receives $993 per month in retirement benefits. The parties' marital estate totaled approximately $450,000 and mostly consisted of liquid assets. The trial court awarded Arvilla property valued at $268,024.31 and awarded George property valued at $188,234. No spousal support was requested by either party.

Section 14-05-24, N.D.C.C., requires the trial court to distribute divorce litigants' real and personal property "as may seem just and proper." A trial court's determination on matters of property division are treated as findings of fact and will not be set aside on appeal unless they are clearly erroneous under Rule 52(a), N.D.R.Civ.P. Anderson v. Anderson, 368 N.W.2d 566, 568 (N.D.1985). A finding of fact is clearly erroneous only when the reviewing court is left with a definite and firm conviction that a mistake has been made. Gabel v. Gabel, 434 N.W.2d 722, 723 (N.D.1989). Although a property division need not be equal in order to be equitable, any substantial inequality must be explainable. Anderson v. Anderson, 390 N.W.2d 554, 556 (N.D.1986); Volk v. Volk, 376 N.W.2d 16, 18 (N.D.1985).

The trial court found that when the parties were married in 1959, Arvilla "owned her own family residence in South Heart, North Dakota, absent any indebtedness thereon, together with five residential lots at said location, a recent [model] automobile free of indebtedness, and $30,000.00 in savings." The court further found that George "owned no real estate interests, but did own a line of farm machinery, fifty head of cattle, a recent [model] pick-up and farm truck, absent any indebtedness ..., and had $20,000.00 in savings." The court determined that Arvilla came to the marriage with "substantially more property" than George. George asserts that this finding is clearly erroneous.

We initially note that the parties presented no evidence as to the value of Arvilla's home or George's farm machinery and cattle at the time of the marriage. George had at least an equal responsibility to submit evidence of the 1959 value of the property. See Hoge v. Hoge, 281 N.W.2d 557, 561 (N.D.1979); Nastrom v. Nastrom, 262 N.W.2d 487, 492 (N.D.1978). However, even if the trial court's determination that Arvilla entered into the marriage with substantially more property than George is clearly erroneous, we nevertheless are not left with a definite and firm conviction that the trial court made a mistake in its ultimate distribution of the parties' marital property. See Dick v. Dick, 414 N.W.2d 288, 291 (N.D.1987). Viewing the record as a whole, the disparity in the amounts of property awarded to the parties is explainable in this case.

The trial court noted that George and Arvilla "came to their marriage having been previously self-supporting and continued that attitude throughout" the course of their 29-year marriage. Arvilla maintained a separate checking account and...