Johnson v. Johnson
| Decision Date | 24 October 1973 |
| Docket Number | No. 8901,8901 |
| Citation | 211 N.W.2d 759 |
| Parties | Sylvia G. JOHNSON, Plaintiff-Appellee, v. Delbert M. JOHNSON, Defendant-Appellant. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. The power of the court to decree a property settlement is derived from statute.
2. There is no fixed rule governing the matter of division of property nor the award of alimony and what is an equitable distribution depends on the facts and circumstances of each case.
3. In arriving at an equitable distribution of property, facts and circumstances which are relevant and material upon the issues are to be considered. These include the respective ages of the parties, their
earning abilities, their conduct during the marriage, the duration of the marriage, the station in life of the parties, their education, health and physical condition, the value and income-producing capacity of the property and whether it was acquired before or during the marriage, and such other matters as may be material.
4. Alimony and equitable distribution of property are matters within the sound discretion of the trial court, and ordinarily the decision of the trial court will not be disturbed on review in the absence of an abuse of discretion or that the findings of the trial court are clearly erroneous.
5. The appellate court will not interfere with the sound exercise of discretion by the trial court in making an award for prosecuting or defending a divorce action in the absence of a showing of abuse of discretion. An abuse of discretion is never assumed but must be affirmatively established.
Ella Van Berkom, Minot, for defendant-appellant.
Bosard, McCutcheon, Kerian, Schmidt & Holum, Minot, for plaintiff-appellee.
The issue for consideration of this appeal from a judgment of divorce and post-judgment order for attorney's fees on appeal is whether the trial court erred in making the division of property and in awarding alimony and attorney's fees.
The parties were married in 1953. The plaintiff, Sylvia G. Johnson (hereinafter Sylvia), had three minor children from a prior marriage whom she brought with her into the home of these parties at the time of the marriage. The defendant, Delbert M. Johnson (hereinafter Delbert), had not been previously married. No issue was born of this marriage. By their pleadings both parties sought a divorce. The trial court granted a divorce to Sylvia on the ground of extreme cruelty. Delbert does not seek to have this part of the judgment reviewed on this appeal.
At the time of the divorce Sylvia's minor children were grown and had left the home. Delbert had never adopted these children but had contributed to their support for a number of years, although Sylvia did receive Social Security payments to assist in their support.
Neither of the parties brought any property into the marriage. At the time of the divorce they owned the following property: the home in which they lived, which contained a basement apartment, held in joint tenancy and valued at $25,000, against which there is an outstanding mortgage in the amount of $14,752, payable in monthly installments of $155; household goods and furnishings used in the home, valued at about $600; furnishings in the basement rental apartment, valued at about $500; a 1966 Dodge automobile, valued at $750 but subject to a chattel mortgage to GAC Finance; an old Rambler automobile of no value; miscellaneous tools of nominal value; small amount of cash in bank deposit, probably not exceeding $115; and their personal belongings.
The indebtedness of the parties, exclusive of the home mortgage, may be classified as follows: several small sundry debts owed by Sylvia, totaling $234; several debts owed by Delbert, including the chattel mortgage on the Dodge, totaling $1,963.50. In addition, Delbert is indebted to Sylvia in the amount of $150 for attorney's fees awarded by the court for the trial of the action, and $450 for attorney's fees awarded for this appeal.
Delbert is employed as a school janitor, earning a total monthly income, including travel allowance, of $617.50. His net income, after deductions, is $465.94. Sylvia, although she had worked during a good portion of their married life, is now unemployed, on orders from her doctor, and her income consists of Social Security disability payments in the amount of $147 per month and the renal income from the basement apartment in the amount of $125 per month, less utilities furnished, leaving a net income from the apartment of $110 per month. Thus she has a net income of $257 per month.
The trial court directed that Delbert should pay Sylvia $70 per month alimony. Pursuant to the judgment Sylvia will be entitled to the use, occupancy and rents of the home. The legal title was directed to be placed in tenancy in common, subject to a life estate in Sylvia. The court also directed that each of the parties pay one-half of each monthly mortgage payment, including taxes and insurance, in the amount of $155 per month; that Sylvia be entitled to a deposit with the power company in the amount of $50, all household furnishings and personal property presently located in the home, and her own clothing and personal effects.
Delbert was awarded the 1966 Dodge automobile, the Rambler automobile, his own clothing and personal effects, and tools.
The trial court also directed that each would be obligated for his own personal debts.
Sylvia is 46 years of age, is suffering from diabetes, problems with her colon, and ulcers, and is presently under the orders of a doctor not to work. Delbert has a history of various medical disorders, including a hernia and emphysema, but is able to work.
Under the circumstances Sylvia will occupy the home during her lifetime, pay the utilities and upkeep thereof, and one-half of the mortgage payments, insurance and taxes. Delbert must find other quarters in which to live, bear the expense thereof, and pay one-half of the mortgage payments, taxes and insurance on the home occupied by Sylvia, but in which he owns an undivided one-half interest as a tenant in common. In addition, he must pay $70 per month alimony to Sylvia, plus $600 in attorney's fees as a result of this action and the appeal. In addition, each of the parties is responsible for his respective current outstanding indebtedness.
The power of the court to decree a property settlement is derived from statute. Halla v. Halla, 200 N.W.2d 271 (N.D.1972). Section 14--05--24, N.D.C.C., provides as follows:
Under this statute we have held that the court, in the exercise of its judicial discretion, shall make equitable distribution of the property. Fleck v. Fleck, 79 N.D. 561, 58 N.W.2d 765 (1953). In determining what an equitable distribution is, facts and circumstances which are relevant and material upon the issues of equitable distribution should be considered. We have held that these include the respective ages of the parties, their earning abilities, the conduct of the parties during the marriage, the duration of the marriage, the station in life of the parties...
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