Kitzmann v. Kitzmann, 890378

• Decision Date: 31 July 1990
• Docket Number: No. 890378,890378
• Citation: 459 N.W.2d 789
• Parties: Gloria KITZMANN, Plaintiff and Appellant, v. James KITZMANN, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 789

459 N.W.2d 789

Gloria KITZMANN, Plaintiff and Appellant, v. James KITZMANN, Defendant and Appellee.

Civ. No. 890378.

Supreme Court of North Dakota.

July 31, 1990.

Ann Mahoney of Mahoney & Mahoney, Center, for plaintiff and appellant.

Daniel J. Chapman of Chapman & Chapman, Bismarck, for defendant and appellee.

VANDE WALLE, Justice.

Gloria Kitzmann appealed from a judgment of divorce entered in the district court for Morton County. On appeal, Gloria contends that the findings of fact of the trial court were clearly erroneous resulting in an inequitable distribution of the property of the parties, and that the trial court erred in failing to grant her attorney's fees. We affirm in part, and remand for further proceedings consistent with this opinion.

James and Gloria Kitzmann were married on June 16, 1967, in New Salem, North Dakota. The parties have two children, both of whom are now adults.

At the time of their marriage, Gloria was employed as a clerical worker in Mandan, North Dakota. James had recently been discharged from the United States Navy and was working with his parents on their family farm located in Oliver County. After the wedding, Gloria terminated her employment and the parties moved into a vacant building on the farm owned by James's parents. James and Gloria did extensive work on the building and eventually converted it into their residence.

During their marriage, the parties acquired a marital estate consisting primarily of farmland, farm equipment, and livestock. The farmland, approximately 600 acres, was purchased from James's parents pursuant to two contracts for deed at generally favorable prices and interest rates. The Kitzmanns raised grain and cattle during most of their marriage, but moved from a cattle to a sheep operation in late 1988.

The income of the parties from the farm could be characterized as modest and, on occasion, James and Gloria would work outside the farm to meet expenses. At various times during the marriage, James worked as a union carpenter at local power plants. In 1987, Gloria obtained employment as a licensed insurance agent in New Salem. Both parties readily acknowledge each other's joint efforts and contributions to the farm operation.

Gloria is currently employed as an insurance agent, and James is working on a full-time basis on the farm. Each party is in good physical health, although James had twice sought treatment for depression during the couple's marriage. ¹

This case was commenced on March 7, 1989, when Gloria served James with a summons and complaint alleging irreconcilable differences. During trial, Gloria testified that she was tired of farm life and of James's dictatorial manner produced by his periods of depression. Gloria also testified that she was not interested in receiving the farmland in a property division. She noted that if James desired to continue farming, she would not want the farm sold and the proceeds from the sale divided, but would rather receive some other form of equitable compensation in the property division. Gloria further testified as to her current income and expenses as well as to numerous items of personal property that she wished to retain out of the marital estate. James testified that he wanted to continue farming, and that he would need farm equipment and certain other marital property in order to maintain the farm. Evidence was presented by both parties regarding the valuation of their marital property and debts by means of a Rule 8.3, NDROC, property listing and in-court testimony. Each party also submitted into evidence expert testimony and certified appraisals regarding the value of the farmland and buildings.

After the hearing, the trial court issued its Findings of Fact, Conclusions of Law and Order for Judgment. The court entered a number of findings regarding the value of the marital property. It found that the parties had total marital assets of $226,194, total marital debts of $16,482, and a resulting net marital estate of $209,712. In making its property division, the trial court awarded Gloria numerous specific pieces of property with a net value of $27,485. James received all of the remaining assets of the net marital estate, including the farmland, equipment, and other personal property, with a resulting net value of $182,227. In an attempt to make an equitable division of the property, the trial court ordered James to pay Gloria $46,000, secured by a mortgage on the land. The mortgage payments were to be amortized over a period of ten years at a six percent rate of interest. ² The court calculated that James's total payments to Gloria would equal $73,600, thereby resulting in a final property award to Gloria of $101,085, and a final property award to James of $108,627. The trial court noted that Gloria's share would amount to "nearly one-half" of the $209,712 net estate.

On appeal, Gloria contends that the trial court erred in determining the value of the buildings on the farmland, the value of certain other minor pieces of personal property, and the amount of the payment to be made to her in order to make the distribution equitable. Gloria also argues that the trial court erred in denying her attorney's fees. We consider Gloria's arguments separately.

PROPERTY DIVISION

It is well-settled that a trial court's determination on matters of property division are treated as findings of fact to be reviewed under the "clearly erroneous" standard of Rule 52(a), NDRCivP. Freed v. Freed, 454 N.W.2d 516 (N.D.1990); Heggen v. Heggen, 452 N.W.2d 96 (N.D.1990); Bader v. Bader, 448 N.W.2d 187 (N.D.1989). 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. Freed v. Freed, supra; Routledge v. Routledge, 377 N.W.2d 542 (N.D.1985); Hedin v. Hedin, 370 N.W.2d 544 (N.D.1985). Furthermore, this Court will not reverse a decision of the trial court merely because we may have viewed the evidence differently had it been presented to us initially as the trier of fact. Williams v. Williams, 302 N.W.2d 754 (N.D.1981).

Gloria first contends that, in determining the value of the net marital estate, the trial court erred in accepting James's expert's appraisal of the value of the farm buildings and improvements. During the trial, James's expert appraiser, Eugene Weekes, valued the farm buildings and improvements at $24,400, while Gloria's expert appraiser, Bill Knudson, valued the structures at $40,000. Knudson's appraisal partly relied upon one farm sale that had taken place after Weekes's appraisal which, Knudson testified, revealed that buildings and improvements contributed to the overall value of the farmland sold. Noting that the recent sale would not alone be sufficient to establish a trend, Knudson concluded that, when taken in conjunction with the other comparable sales used in his appraisal, farm buildings contribute significantly to the value of farmland. Weekes testified that in farm market trends of recent years, the contributory value of buildings and improvements to overall farmland valuation "is quite small." Weekes also indicated that one sale is not enough to establish a different trend and that his appraisal, which also utilized comparable sales, would not have changed as of the time of trial. The trial court specifically accepted Weekes' valuation, finding that Knudson employed "unacceptable" comparable sales in his appraisal.

This Court has ordinarily refused to overturn a trial court's findings when it was presented with conflicting testimony on an issue. In Jochim v. Jochim, 306 N.W.2d 196, 199 (N.D.1981), we stated:

"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. [Citation omitted.] 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, where this Court, bound by a cold reading of the transcript, cannot do so."

See also Freed v. Freed, supra; Jondahl v. Jondahl, 344 N.W.2d 63 (N.D.1984); Lapp v. Lapp, 293 N.W.2d 121 (N.D.1980); Nastrom v. Nastrom, 284 N.W.2d 576 (N.D.1979).

In the instant case, there was conflicting expert testimony as to whether buildings significantly add to the overall valuation of farmland, and whether Knudson's "recent" comparable sale, in conjunction with the other sales used in his appraisal, established such a trend. The trial court, which heard the testimony and had the opportunity to observe the manner of presentation and the demeanor and credibility of the appraisers, is in a far better position than an appellate court, which possesses only a cold record, to ascertain the true facts regarding the value of the structures and, accordingly, its findings will have considerable force on appeal when conflicting valuation testimony exists. We do not believe that it was clearly erroneous for the trial court to place greater weight or credibility upon Weekes's testimony and certified appraisal concerning the valuation of the buildings and improvements, nor are we left with a definite and firm conviction that a mistake has been made.

Gloria's second argument is that the trial court was clearly erroneous in its valuation of five relatively minor pieces of personal property. Again, however, there was often equivocal evidence and differing testimony presented to the trial court by James and Gloria regarding the value of these individual properties. ³ Upon reviewing the transcript, testimony, and the record, we also do not believe that the trial court was clearly erroneous in its personal property valuations.

Gloria's final property division issue concerns the mortgage on the farmland granted to her by the trial...