Klitzke v. Klitzke, 9912

• Citation: 308 N.W.2d 385
• Decision Date: 15 July 1981
• Docket Number: No. 9912,9912
• Parties: Maxine Louise KLITZKE, Plaintiff and Appellee, v. Alan Rodney KLITZKE, Defendant and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 385

308 N.W.2d 385

Maxine Louise KLITZKE, Plaintiff and Appellee, v. Alan Rodney KLITZKE, Defendant and Appellant.

Civ. No. 9912.

Supreme Court of North Dakota.

July 15, 1981.

Lanier, Knox & Olson, Fargo, for plaintiff and appellee; argued by P. W. Lanier, Jr., Fargo.

Pancratz, Kruger, Wold, Yuill & Johnson, Fargo, for defendant and appellant; argued by Eugene A. Kruger, Fargo.

VANDE WALLE, Justice.

Alan Klitzke appealed from a divorce judgment of the district court of Cass County. We affirm.

Maxine Klitzke commenced a divorce action against Alan Klitzke in January of 1979. In June 1979, Alan counterclaimed for a divorce on the same ground, irreconcilable differences. After numerous hearings, and a trial which was held on November 7, 1979, and reopened February 15, 1980, the district court granted mutual divorces and issued its order regarding property division, child support and costs.

A central item in the dispute that developed over the division of the Klitzkes' property was a tract of land owned by Klitzke Brothers, Inc. Alan Klitzke owns one-half of the stock in this corporation and his brother owns the other half. The land which comprises the primary property of the corporation had been deeded to the corporation by warranty deed from Alan Klitzke, Maxine Klitzke, Alan's brother and his wife, and Alan's mother and stepfather. The land occupies approximately 60 acres adjacent to the west bank of the Red River south of Fargo. The record indicates that Klitzke Brothers, Inc., had subdivided the land into 28 residential lots ranging in size from approximately one to eight acres per lot with the intention of filling the sub floodplain lots and selling them. At the time of the trial, some of this development had taken place and seven of the individual lots had been sold for prices ranging from $8,000 to $9,600 per lot.

During the course of the proceedings in the divorce action, the trial court made several attempts to have the Klitzkes present evidence of the present value of the subdivision. Both Alan and Maxine claimed that they could not afford to pay for an expert's appraisal. The trial court offered its own plan for arriving at a valuation, and, while Maxine agreed to go along with this plan, Alan refused. Instead, Alan presented evidence which represented his opinion that further development of the subdivision was economically not feasible and that the land was essentially worthless.

The trial court concluded from the evidence before it that the land was worth between $14,000 and $100,000 and ordered that Maxine receive, as a portion of her share of the couple's property, $19,800 plus interest at a rate of 7 percent per annum in equal amortized payments. In addition, the court ordered that the family home be held in tenancy in common and awarded Maxine possession of the home for ten years from July 1, 1980. At the end of the ten-year period, or earlier if Maxine should decide, the house is to be sold and the proceeds divided equally between Maxine and Alan. The court also awarded Maxine custody of the couple's minor child and $200 per month child support, a tractor-lawn mower, and her costs. ¹

Alan raises these issues:

1. Whether or not the trial court made an equitable division of the property represented by Alan's shares in Klitzke Brothers, Inc.

2. Whether or not the trial court erred when, prior to the judgment, it ordered Alan to continue paying to Maxine $200 per month as temporary child support after one of the Klitzkes' two children moved out of Maxine's home and into Alan's home.

3. Whether or not the trial court erred in awarding possession of the home to Maxine.

4. Whether or not the trial court erred in awarding the tractor-lawn mower to Maxine.

5. Whether or not the trial court abused its discretion by awarding Maxine's costs to be taxed against Alan where mutual divorces had been granted.

6. Whether or not the trial court erred in ordering 7 percent interest on the unpaid balance of the property distribution payments.

In a divorce action, a trial court must make an equitable distribution of the parties' property and may compel either party to provide child support to the custodial parent as well as other type of support as the court deems just. Section 14-05-24, N.D.C.C. To assist the court in making the determinations arising out of Section 14-05-24, this court has adopted the Ruff-Fischer guidelines. ² These guidelines allow a trial court to consider the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the 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 and its income producing capacity, if any, and whether it was accumulated or acquired before or after their marriage; and such other matters as may be material. Nastrom v. Nastrom, 284 N.W.2d 576 (N.D.1979).

This court's position regarding our review of appeals arising out of property division and child support was recently set forth in Sanford v. Sanford, 301 N.W.2d 118, 126 (N.D.1980), where we pointed out that: A trial court's determinations on matters of child support and division of property are treated as findings of fact; these findings will not be set aside on appeal unless clearly erroneous pursuant to Rule 52(a), N.D.R.Civ.P.; a finding of fact is not clearly erroneous unless the reviewing court is left with a firm and definite conviction that a mistake has been made; and the mere fact that the appellate court might have viewed the facts differently, if it had been the initial trier of the case, does not entitle it to reverse the lower court.

The trial court's findings of fact do not contain a finding as to the property owned by the Klitzkes at the time of the divorce. However, the record indicates that a hearing was held July 10, 1980, for the purpose of rendering a decision in the Klitzkes' divorce case. In that hearing, the trial court stated its findings of fact with regard to the nature and value of the Klitzkes' property. In Hust v. Hust, 295 N.W.2d 316, 321 (N.D.1980), we stated at footnote 3:

"We are of the opinion that an oral recitation by the court from the bench which is fully recorded is entitled to consideration on appeal, under Rule 52(a), to the extent that it contains findings of fact or conclusions of law by the court."

The only limitation on this proposition is where a discrepancy exists between such an oral recitation and the findings of fact. In that case, the latter prevails for the purposes of our review. Schmidt v. Plains Elec., Inc., 281 N.W.2d 794 (N.D.1979). Because of the absence of a finding with regard to the nature and value of the Klitzkes' property in the trial court's findings of fact, there can be no such discrepancy in the instant case, and we accordingly review the findings appearing in the transcript of the oral recitation from the bench which the trial court rendered July 10, 1980.

The trial court found that the value of Alan's stock in Klitzke Brothers, Inc., was between $14,000 and $100,000. In light of this finding, the court awarded Maxine $19,800. Alan now claims that Maxine never held an interest in the property owned by Klitzke Brothers, Inc. Presumably, Alan is arguing that on this basis Maxine should not have been awarded the $19,800 as part of the property division. Although, the record demonstrates that Maxine deeded to Klitzke Brothers, Inc., her interest in the land that comprises the property of that corporation, it also appears that Alan, not Maxine, held legal title to the property at the time of the conveyance to the corporation. We have previously held that the fact that property of one spouse was acquired prior to marriage is only one consideration weighing in favor of granting it to such spouse at a division of property upon divorce, but it does not prevent the court from awarding the property to the other spouse if necessary to an equitable distribution. Fine v. Fine, 248 N.W.2d 838 (N.D.1976). More importantly, we have consistently held that in making an equitable distribution, the court must consider all of the property of the parties, both jointly and individually owned. See, e. g., Bellon v. Bellon, 237 N.W.2d 163 (N.D.1976). Thus, the fact that Maxine may not have held legal title to the property deeded to the corporation, nor any interest in the corporation, does not prevent an award of that property, or a cash payment in lieu thereof, to her....