Hegge v. Hegge

• Decision Date: 17 December 1975
• Docket Number: No. 9138,9138
• Citation: 236 N.W.2d 910
• Parties: Kenneth A. HEGGE, Plaintiff, Appellant and Cross-Appellee, v. Chris A. HEGGE, Defendant, Appellee and Cross-Appellant.
• Court: North Dakota Supreme Court

Page 910

236 N.W.2d 910

Kenneth A. HEGGE, Plaintiff, Appellant and Cross-Appellee, v. Chris A. HEGGE, Defendant, Appellee and Cross-Appellant.

No. 9138.

Supreme Court of North Dakota.

Dec. 17, 1975.

Syllabus by the Court

1. The determination of custody of minor children, alimony, and the disposition of property in divorce actions are findings of fact subject to the 'clearly erroneous' provisions of Rule 52(a), N.D.R.Civ.P.

2. A memorandum of decision which recites the facts may be resorted to for purposes of determining the facts found by the trial court, if not contrary to the findings of fact, even though the findings of fact under such designation were made but were inadequate.

3. In awarding the custody of a minor the best interests of the child are the first and paramount consideration. Section 30--10--06, NDCC.

4. Case law or common law of this State does consider fault or misconduct as significant and important on the question of alimony.

5. The grounds upon which a divorce is actually granted are not necessarily controlling on the questions of child custody, alimony, or disposition of the property, and as to these items the court must base its decision on facts that are pertinent to the issues and statutory and case laws that apply.

6. In determining whether either party is entitled to alimony, the trial court may consider the respective ages of the parties; their earning ability; the conduct of the parties during the marriage and its duration; their station in life; their health and physical condition; the necessities of the parties and their circumstances, financial or otherwise; the value and income-producing capacity of the property and whether it was accumulated before or after marriage, the efforts and attitude of the parties towards its accumulation; and such other matters or facts as may be material.

7. A finding is clearly erroneous although there is evidence to support it when the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.

Nelson & Binek, Grand Forks, for plaintiff, appellant and cross-appellee; argued by William W. Binek, Grand Forks, and Joel Gilbertson, Senior law student.

Murray, Mack, Moosbrugger & Leonard, Grand Forks, for defendant, appellee and cross-appellant; argued by Timothy R. Geck, Grand Forks, and Bradley W. Berg, Senior law student.

SAND, Judge.

This is an appeal by the plaintiff, Kenneth Hegge, from a judgment of the district court of Pembina County granting a divorce to both the plaintiff and the defendant, Chris Hegge, on the ground of irreconcilable differences, and awarding alimony to the defendant in the amount of $300 per month, not to exceed 48 months. The plaintiff alleges that the award of alimony by the trial court is a reversible error of law and that the trial court's determination of alimony in the amount of $300 per month is clearly erroneous. On a cross-appeal, the defendant claims the trial court erred by giving custody of their daughter, Rachael, to plaintiff, and contends she should have been given custody.

The parties were married on April 28, 1967, at Vancouver, Washington. At the time of their marriage the defendant was 19 years old and was a waitress at a cafe. The plaintiff was a graduate chemical engineer, aged 27. Two children were born of this marriage, Steven in 1968 and Rachael in 1972. Steven was killed in an accident in 1974. For the past two years the plaintiff has been the chief chemist in charge of quality control at the American Crystal Sugar refining plant near Drayton, North Dakota. He has an income of approximately $14,000 per year. The property holdings of the parties consist of a modest checking account, two older model automobiles, a pickup truck, together with household goods and furnishings valued between $1,000 and $1,500. There is little or no indebtedness.

After the parties were married, they lived in Portland, Oregon, for one week before the plaintiff left to take employment in Alaska. By mutual agreement, his wife remained in Oregon and joined him about four months later. They lived in Alaska for approximately three months, during which time she developed an extramarital relationship with another man, an associate of the plaintiff and a co-employee. In hope that her absence might terminate the relationship, she returned to Portland for a month. Some time in December of 1967 Kenneth also came to Portland and the parties sufficiently reconciled so that both returned to Alaska before Christmas. Within two weeks after her return to Alaska, however, the extramarital relationship with the same party was resumed.

In the middle or latter part of January 1968 she returned to Portland. Kenneth also returned to Portland after terminating his job in Alaska. He took his former job as a research chemist at the medical school of the University of Oregon. Steven, their first child, was born on October 18, 1968, at about the same time that the plaintiff started working as an instructor at the University. In the fall of 1969 the plaintiff obtained an assistantship at the University and entered graduate school. During the summer of 1970 the defendant had two affairs, one with a man whom the plaintiff described as a hippie and who was also a drug user. The defendant became pregnant by this individual. She obtained, and plaintiff paid for, an abortion, giving the reason that the child, having this type of father, would likely to be deformed. Approximately a month after the abortion she left the home for a six-month period, whereupon plaintiff started a divorce action. During the first part of April 1971 a reconciliation was accomplished, just as the plaintiff was finishing his graduate work.

Upon resuming their marital status, they now decided that Portland, Oregon, like Alaska, might have a bearing on thir marital tranquility. They moved to Menahga, Minnesota, where Kenneth served as instructor for a year. From there they moved to Drayton, North Dakota, in the summer of 1972 where Kenneth assumed employment with American Crystal. Rachael, their daughter, was born at Drayton.

It is suggested that during their stay in Menahga, and later when first at Drayton, that things were going well for them. Living conditions available at Drayton were not good. The defendant found it difficult to tolerate her role as a mother and housewife. Counseling was sought from the local pastor and from other professionals. Although Kenneth was critical of the way his wife maintained the home, and how she cared for the children, there is other testimony that she was a good mother, showed affection for her children, and tried hard to make friends and to become a part of the community in which they lived.

In the early summer of 1974 the defendant again left for two or three days at a time. This absence was prompted by an extramarital affair with a bartender in East Grand Forks. It was during this period that their son, Steven, was killed, but her behavior was not responsible for the death. The defendant was home at the time. The death of her son was such a severe shock to her that while under sedation prescribed by a doctor she took an overdose of prescription pills. Later she threatened suicide unless she were permitted to leave. After this incident the marriage completely deteriorated. She left home and continued her association with the bartender at the Spud Bar in East Grand Forks, where she took employment as a cocktail waitress. Defendant testified that she makes approximately $130 per week at this job.

Kenneth then brought the action for divorce and Chris counterclaimed.

At the trial, Kenneth testified that his wife had had several extramarital affairs and that she had on occasion left the home, leaving him with the children, for periods ranging from weekends to a six-month period of absence.

The defendant complained that, because of the disparity in their academic levels, she felt inferior to her husband. She wished to go to school to improve herself, but the situation was never such that she could. Also, much was made of the plaintiff's inadequacy as a conjugal partner.

Because of these irreconcilable differences the plaintiff was granted an absolute decree of divorce from the defendant, and the defendant was granted an absolute decree of divorce from the plaintiff.

The complaint alleged extreme mental cruelty and irreconcilable differences. It asked for custody of the minor child, Rachael, with visitation rights to the defendant, and that the plaintiff be awarded the real and personal property. The answer consisted primarily of a general denial and a counterclaim alleging extreme physical and mental cruelty, as defined in § 14--05--05, NDCC, irreconcilable differences, and asked for the custody of the minor child, Rachael, with visitation rights for the plaintiff, and for alimony and child support 'sufficient to meet the demands of the defendant and minor child.' Both parties asked for an absolute divorce.

The trial court issued its memorandum of opinion, which concluded with the following language:

'Counsel for the plaintiff is directed to prepare Findings of Fact, Conclusions of Law, and Order for Judgment in accordance with this Memorandum of Decision.'

The findings of fact so designated, however, are very meager and recite basically only the uncontested facts in the action. Paragraph V provides as follows:

'FOUND: That there has arisen between the couple such differences that are irreconcilable in nature.'

Under the designation of 'Findings of Fact' no findings were made appertaining to the custody of the child, nor were any findings of fact made as the basis for the division of the property or for alimony or support payments.

The conclusions of law substantially state that irreconcilable differences exist which are grounds for an absolute decree of divorce; that the plaintiff be awarded the care, custody, and control of the minor child, Rachael Hegge,...