Hoge v. Hoge, 9562

• Decision Date: 30 April 1979
• Docket Number: No. 9562,9562
• Citation: 281 N.W.2d 557
• Parties: Dennis HOGE, Plaintiff and Appellee, v. Judy HOGE, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 557

281 N.W.2d 557

Dennis HOGE, Plaintiff and Appellee, v. Judy HOGE, Defendant and Appellant.

Civ. No. 9562.

Supreme Court of North Dakota.

April 30, 1979.

Rehearing Denied May 22, 1979.

Kapsner & Kapsner, Bismarck, for defendant and appellant; argued by Carol Ronning Kapsner, Bismarck.

Baer, Asbridge & Hager, Bismarck, for plaintiff and appellee; argued by Richard B. Baer, Bismarck.

PEDERSON, Justice.

Judy Hoge appeals from the district court's denial of a motion for a new trial. She alleges that the court abused its discretion by refusing to consider certain grounds which she raised for a new trial under Rule 59, North Dakota Rules of Civil Procedure. We reverse the district court's denial of the motion and remand for a new trial on issues relating to an equitable property division.

Dennis and Judy Hoge were married in 1960. At the time of their separation, the couple was residing on a farm north of Bismarck where they had lived with their three children for the major part of their marriage. The legal title to this farmland was held by Dennis jointly with his brother, James Hoge, except for a 30-acre tract which was held jointly by Dennis and the children. For purposes of the property division, the court considered Dennis to be the sole owner of the land held, apparently, in joint tenancy with the children. This 30-acre tract was the site of the family home. Dennis Hoge's primary occupation has always been farming and, while raising the children, Judy assisted her husband with the farm work. Since 1970, Judy has been employed in Bismarck on either a part-time or full-time basis.

Dennis initiated this action for divorce in November, 1975, in which he alleged irreconcilable differences and sought custody of the children. In response to Dennis's complaint, Judy answered and counterclaimed for divorce, and sought custody of the children. Although a hearing was held in August, 1976, judgment was not entered until May 2, 1978. The parties were granted a divorce on irreconcilable differences and the custody of their three children was awarded to Dennis. Title to all of the real and personal property owned by Dennis and Judy was awarded to Dennis. Judy was awarded a lump sum of $45,000.00, representing her share of the real and personal property owned by the parties.

In May, 1978, Ervin, one of the Hoges' children, began living with his mother in Bismarck. As a consequence of this de facto change in custody, an amended judgment and decree was entered on July 14, 1978, in which custody of Ervin was transferred to Judy, and Dennis was required to pay $50.00 per month as child support. The amount of child support was subsequently increased to $75.00 per month in an amended judgment and decree dated July 21, 1978. Apparently the Hoges' other two children are also now living with Judy. In oral argument before our court, it was disclosed that issues of custody and child support are currently being litigated in another action. We will not, therefore, address these matters.

On June 29, 1978, Judy moved for a new trial under Rule 59, NDRCivP, alleging, inter alia, that:

(1) There was newly discovered evidence concerning whether the property division was equitable;

(2) The evidence was insufficient to support the judgment because the property division was inherently inequitable and contrary to § 14-05-24, NDCC;

(3) There were certain irregularities in the testimony of Dennis.

In its amended judgment of July 21, 1978, the trial court denied Judy's motion on the ground that she did not present any "newly discovered" evidence. The court held that the evidence upon which she relied in seeking a new trial existed at the time of the original proceeding. The court further held that the property division contained in the original judgment was equitable and that the real estate acquired by the parties consisted of a gift to Dennis from his parents. For these reasons, the court concluded that Judy failed to substantiate and support her motion for a new trial.

Pursuant to Rule 59(f), NDRCivP, the trial court, when refusing to grant a new trial, is required to file a written memorandum concisely stating the different grounds on which its ruling is based. This provision does not require the trial judge to address the merits of each ground raised by the party seeking a new trial. To sufficiently comply with Rule 59(f), all that must be provided is a clear statement of the reasons for denying the motion.

The decision to grant or deny a new trial rests almost entirely with the discretion of the trial court. We have defined "abuse of discretion" As an unreasonable, arbitrary, or unconscionable attitude on the part of the court. Porter v. Porter, 274 N.W.2d 235, 243 (N.D.1979); Piper v. Piper, 239 N.W.2d 1, 3 (N.D.1976). The sole question here is whether the trial court displayed this attitude in denying Judy's request for a new trial.

Our standard of review on appeal from a denial of a motion for new trial is limited to a determination whether the trial court manifestly abused its discretion. Porter v. Porter, supra.

The trial court's findings reveal that it relied heavily on Dennis's representations that he wanted to continue farming both for his own benefit and for that of his children. In her motion, Judy asserted as a ground for new trial that she had discovered evidence to indicate that Dennis did not intend to keep the farm intact. Ordinarily, events occurring subsequent to trial are not grounds to justify a new trial under Rule 59(b), NDRCivP.

"The validity of a finding by the trial court, supported by substantial evidence on the record as to the future intentions of a party is not affected by a subsequent decision by that party to engage in conduct contrary to the finding." Porter v. Porter, 274 N.W.2d at 242, Supra.

We hold that the trial court properly denied Judy's motion on the ground of newly discovered evidence.

Judy further alleged under Rule 59(b) that the evidence was insufficient to support an equitable property division and that the division was contrary to the mandate of § 14-05-24, NDCC. This section provides in part:

"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, . . . ."

Under this section, the court must consider All of the property accumulated by the parties, both jointly and individually owned. Bellon v. Bellon, 237 N.W.2d 163, 165 (N.D.1976). The existence of evidence necessary to permit the court to make correct findings is the responsibility of counsel. Nastrom v. Nastrom, 262 N.W.2d 487, 492 (N.D.1978). Where sufficient evidence has been admitted from which the court can determine the net worth of the parties' real and personal property, and the court fails to do so, a manifest abuse of discretion exists. When there is evidence upon which the court can arrive at an equitable property division, justice requires use of the elementary accounting equation of assets minus liabilities equals total equity. From this equation it is possible to determine the net worth of the marital property. See Nastrom v. Nastrom, 262 N.W.2d at 491, Supra.

After the court has determined the net worth of the parties, the guidelines enunciated by our court in Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966), come into play to aid the court in formulating its findings in relation to the facts and circumstances of a particular case. There is no requirement that a property division be equal in order to be equitable. Grant v. Grant, 226 N.W.2d 358, 363 (N.D.1975). On appeal, the findings of the court will not be set aside unless they are clearly erroneous. Rule 52(a), NDRCivP; Keig v. Keig, 270 N.W.2d 558, 560 (N.D.1978); In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973).

In the original judgment of May 2, 1978, and the amended judgment of July 21, 1978, which was in effect an order denying a new trial, the court ignored assets acquired by the parties which have substantial value. Although there was sufficient evidence before the court from which to determine the value of the personal farm property, the findings reveal that the court based the property division solely on the value of the real property owned by the parties. Dennis's interest in the farmland was appraised at $312,250.00, a value reflecting its highest and best use as residential property. Subsequent to the original judgment, the land ownership was restructured and Dennis is now the sole owner of 340 acres of farmland. From Dennis's testimony and evidence presented in the form of gift tax returns, the court concluded that the real property was acquired by Dennis largely as a result of gifts from his father. The court found that substantial mortgages existed against this property but did not, in its findings, cite the specific amount of these encumbrances.

In addition to the real property held by Dennis and Judy, they accumulated substantial personal property for use on the farm and in the home. The record indicates that the farm personalty has a value after depreciation of $60,960.00. The findings do not show whether or not the court adopted this value as representing the true worth of the farm personalty or whether the court even considered its value when reaching a property division.

In 1977, Dennis and his brother, James, acquired Dakota Sanitation, Inc. This business was obtained while Dennis and Judy were living separate and apart, but were still married. Ordinarily, property acquired while living separately is accountable to satisfy obligations which arise out of the status of marriage. Keig v. Keig, supra.

The record discloses that, as of March 20, 1978, Dakota Sanitation, Inc., incurred the amount of $79,134.45 in liabilities. Dennis testified at trial that the total value of the trucks used in this business was approximately $65,000.00. Neither the value of the trucks nor the liabilities of Dakota Sanitation, Inc., were...