Hedin v. Hedin, 10860
| Decision Date | 27 June 1985 |
| Docket Number | No. 10860,10860 |
| Citation | 370 N.W.2d 544 |
| Parties | Jerome A. HEDIN, Plaintiff and Appellee, v. Mavis HEDIN, Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Ramlo Law Office, Fargo, for plaintiff and appellee; argued by Jean A. Samelson, Fargo.
Duis Law Offices, Fargo, for defendant and appellant; argued by George E. Duis, Fargo.
Mavis Hedin appeals from a district court judgment granting Jerome Hedin a divorce on the ground of irreconcilable differences. Mavis contends that the trial court clearly erred in dividing the parties' property and in failing to award her alimony or rehabilitative alimony and her attorney's fees and costs. We modify the court's spousal support provision, affirm the property division, and remand for a redetermination of the spousal support and for a determination of whether or not attorney's fees should be awarded.
There is little dispute about the facts. The 28-year marriage of Jerome and Mavis Hedin was dissolved by decree on October 4, 1984. At the time of trial, the parties' three children had reached the age of 18. Jerome was 53 years of age, in fair health, and employed as a church custodian at $14,800 per year. Jerome testified that his monthly take home pay was $962, and he enumerated various monthly expenses totaling $957. Jerome resided in a mobile home at the time of trial, having left the family home in September 1983.
Both parties are high school graduates. After their marriage in 1956, Jerome worked in a hardware store in Fargo, North Dakota, for one year, then took a job in 1957 as a warehouseman for an appliance distributor. He was a salesman for the appliance distributor from 1960 to 1975. He then farmed land the parties purchased from Jerome's mother and brother in Norman County, Minnesota. After farming for approximately two years, he accepted employment in 1978 with another distributorship from which he earned approximately $28,000 in 1981, before losing that employment in January 1982 for reasons not fully disclosed in the record. Jerome testified that he does not want to get back into the appliance sales field as he was "told in 1975 by the Fargo Clinic to get out of ... sales or I would end up in the hospital."
Mavis has been a traditional homemaker for most of the marriage. At the time of trial she was 50 years of age, in fair health, and had employment with a Tupperware distributor, packing and lifting large boxes at $3.35 per hour, two days a week, earning approximately $200 in take-home pay per month. Mavis has worked outside the home sporadically during the marriage for a kitchen supply store, for a cleaning business, for a church as a wedding coordinator, and for a leasing company for whom she cleaned apartments.
The trial court found that Mavis "has no vocation but is able-bodied and should be able to obtain employment." The court also found that Mavis' current monthly expenses totaled in excess of $500, and that two of the parties' children were residing with her at the time of trial in the family home.
The trial court found that, during the marriage,
Jerome testified that he informed Mavis at least 10 years prior to trial that he would be leaving her when the oldest child turned 18 or graduated from high school.
The trial court valued the parties' joint assets at $291,000, and their joint liabilities at $147,444. The primary marital assets consist of (1) the family home located in Fargo valued at $90,000 subject to a mortgage of $10,000, (2) 10 acres of land located in Norman County, Minnesota, valued at $7,500, which the parties purchased as a potential homestead, and (3) 310 other acres of land in Norman County, Minnesota, which they have sold through a contract for deed apparently entered into on March 1, 1983.
The trial court found that there will be under the contract for deed potential income to the parties of $10,750 per year. The terms of the contract reveal that Jerome and Mavis agreed to sell the land at a purchase price of $268,500, with $53,500 due at the time of the execution of the agreement. Principal payments of $10,750 plus interest on the unpaid balance are due annually on March 1. The land under contract for deed was subject to a Federal Land Bank mortgage of $60,000 which Jerome and Mavis agreed to retain responsibility for under the contract. Jerome testified that he received from the buyer approximately $21,000 for the March 1, 1984, principal and interest payment, which he allegedly applied to the Federal Land Bank mortgage and other family debts.
The district court's judgment ordered that the parties' home be sold and that the proceeds, after reasonable costs of sale, be used to pay the following described liabilities of the parties:
Production Credit Association $15,112.27
Earl Schneider 12,000.00
First Federal (home mortgage) 10,000.00
Big Horn-Tobiason 8,000.00
Stacy Veldman 8,000.00
Midwest Leasing 7,732.00
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Total $60,844.27
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The court's judgment directed that $12,000 of the remaining proceeds from the sale of the home be paid to Mavis, and that any remainder be divided equally between the parties.
The trial court also ordered that the parties' two campers, valued at $3,000, and the parties' 10 acre tract of land, valued at $7,500, be sold and the proceeds used to discharge debts to Norwest Bank ($6,600) and Jerome's mother, Leona Hedin ($5,000), with any remaining proceeds to be divided equally. Mavis was held responsible for any income tax liability for the year 1983, which Jerome estimated at trial will be approximately $5,000.
The contract for deed was made the property of the parties as tenants in common subject to the Federal Land Bank mortgage. The court directed that all income derived from the contract be equally divided between the parties after reasonable expenses and mortgage payments are made. The court also awarded Mavis personal property valued at approximately $7,450, and Jerome personal property valued at approximately $9,200. Jerome was ordered to pay Mavis $250 per month as "alimony" until such time as the family home was sold. All alimony payments were to cease upon the sale of the home.
Mavis contends that the trial court's property division, as it relates to the sale of the house and other property to pay accumulated debt, is clearly erroneous. She argues that at least $25,000 of this debt was incurred by Jerome without her knowledge and consent.
A trial court's determination on matters of property division is treated as a finding of fact and will not be set aside unless clearly erroneous. E.g., Heller v. Heller, 367 N.W.2d 179, 183 (N.D.1985). 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 a definite and firm conviction that a mistake has been made. Id. at 181. In considering the entire distribution in this case and not merely the allocation of debt, we are not left with a definite and firm conviction that a mistake was made in the trial court's division of the marital estate.
The trial court specifically found that the parties "have joint indebtedness in the total sum of $147,444.00." [Emphasis added.] We are not directed to any evidence that contradicts this finding, but we have discovered a statement in the transcript where Jerome said "she [Mavis] was against everything."
There is no contention or showing that the debts arose as a result of the squandering of the parties' assets, the intentional or neglectful...
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...it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Hedin v. Hedin, 370 N.W.2d at 547. Section 14-05-24, N.D.C.C., authorizes the trial court "to make such suitable allowances to the other party for support during life or ......
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Kitzmann v. Kitzmann, 890378
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