Jochim v. Jochim, 9793

• Decision Date: 28 May 1981
• Docket Number: No. 9793,9793
• Parties: Lewis JOCHIM, Plaintiff and Appellant, v. Arlis Sally JOCHIM, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 196

306 N.W.2d 196

Lewis JOCHIM, Plaintiff and Appellant, v. Arlis Sally JOCHIM, Defendant and Appellee.

Civ. No. 9793.

Supreme Court of North Dakota.

May 28, 1981.

Phillip J. Brown, Bismarck, for plaintiff and appellant.

Tom Disselhorst, Bismarck, for defendant and appellee.

SAND, Justice.

The plaintiff, Lewis Jochim (Lewis), appealed from a district court judgment in a divorce action in which Lewis and the defendant Arlis Jochim (Arlis) were granted a divorce from each other because of irreconcilable differences. The district court judgment provided for a division of the couple's property and awarded Arlis $150.00 a month spousal support for three years.

Lewis and Arlis were married at Bismarck, North Dakota, on 1 January 1950. At the time the divorce action was initiated all the children of the marriage were over the age of 21 and were not living with their parents.

At the time of the trial Lewis was 53 years old. He wears a brace on his right leg as a result of wounds incurred in World War II, and is paralyzed on his left side as the result of a stroke suffered on 3 October 1977. ¹ Lewis testified that he has a one hundred percent disability rating and receives $954.00 a month as a veteran's disability pension since his injuries in World War II. Arlis testified that she has a heart condition.

After trial, the district court entered judgment which provided for the following disposition of the couple's real and personal property:

                TO LEWIS
                ---------
                Cabin - Lake Isabel ..................... $ 10,000.00
                Three mobile homes ........................ 13,500.00
                1979 Monte Carlo automobile ................ 3,500.00
                Boat and motor ............................. 2,500.00
                1972 motorcycle .............................. 250.00
                Snowmobile ................................... 225.00
                Lewis' guns and fishing tackle ............. 1,000.00
                                                          -----------
                                                          $ 30,975.00
                

                TO ARLIS
                ---------
                Equity in family home with mortgage in
                  neighborhood of $21,000.00 ............ $ 21,000.00
                1972 Volkswagen .............................. 500.00
                One-acre lot north of Bismarck ............... 500.00
                All household goods and furnishings
                  presently in Arlis' possession
                  except Lewis' guns and fishing
                  tackle ................................... 1,500.00
                                                          -----------
                                                          $ 23,500.00
                

The district court ordered the sale of the remaining motorcycles, a gooseneck trailer, a 1958 pickup camper, and a 1955 GMC pickup with the proceeds to be divided equally between Arlis and Lewis. The district court also ordered the $8,000.00 balance due to the Jochims on a farm contract ² plus $2,700.00 already received on the contract payment to be divided equally between Lewis and Arlis.

Additionally, the district court ordered Lewis to pay Arlis $150.00 a month for three years for "spousal support" to allow Arlis "to move into the job market."

Lewis appealed from that judgment and raises two issues for our consideration.

The first issue deals with the court's division of property. Lewis asserts the trial court erred in valuing the couple's three mobile homes at $13,500.00, and that a more realistic value of the mobile homes was $7,000.00. Lewis received the mobile homes in the trial court's property disposition. The mobile homes were income-producing property. Lewis contends that if the value of the three mobile homes were reduced to $7,000.00, the property division would be approximately equal, but because of his physical condition the division would still be inequitable.

Lewis testified at trial that the three mobile homes have an approximate value of $15,000.00, with.$1,472.20 in debt due on the mobile homes. Bruce Lohstreter, assistant vice president and manager of the installment loan department at the State Bank of Burleigh County, had dealt with the Jochims on a loan for the three mobile homes and testified that the value of three of the mobile homes was between $6,500.00 and $7,500.00. ³ Lohstreter testified that his appraisals were values that the bank could place on the mobile homes "without actually going out and physically doing an appraisal."

Section 14-05-24, North Dakota Century Code, requires that the trial court make an equitable distribution of the real and personal property of the parties when a divorce is granted. There are no fixed and rigid rules by which the trial court is to divide the marital estate in a divorce case. Lapp v. Lapp, 293 N.W.2d 121 (N.D.1980). For instance, there is no requirement that a property division in a divorce case be equal in order to be equitable. Rudel v. Rudel, 279 N.W.2d 651 (N.D.1979). The ultimate objective is to make an equitable distribution, and a determination of what is an equitable division lies within the discretion of the trial court and depends on the facts and circumstances of each case. Nastrom v. Nastrom, 284 N.W.2d 576 (N.D.1979).

It is well established that the following factors (Ruff-Fischer ⁴ guidelines) may be considered by the trial court in making an equitable distribution of property:

" ... the respective ages of the parties to the marriage; their earning abilities; the duration of and 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, and whether it was accumulated or acquired before or after the marriage; and such other matters as may be material. Bender v. Bender, 276 N.W.2d 695 (N.D.1979); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966); Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952)." Bosma v. Bosma, 287 N.W.2d 447, 450 (N.D.1979).

The trial court's determinations on matters of division of property and alimony are treated as findings of fact and will not be reversed by this Court unless clearly erroneous. Williams v. Williams, 302 N.W.2d 754 (N.D.1981). A particular finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on all the other evidence is left with a definite and firm conviction that a mistake has been made. Nastrom v. Nastrom, supra. Simply because we might have viewed the evidence differently, had it been presented to us as the trier of fact, does not entitle us to reverse the trial court. Bender v. Bender, 276 N.W.2d 695 (N.D.1979).

When there is conflicting testimony, the reviewing court will give considerable weight to the findings of the trial court because the trial court is able to see and hear the witnesses, and the reviewing court is not. Nastrom v. Nastrom, supra. The judge at the trial court level is in a better position to accept one version of the facts over another because he is able to listen to and observe the demeanor of the witnesses, whereas this Court, bound...