Kostelecky v. Kostelecky, 9281

• Decision Date: 24 February 1977
• Docket Number: No. 9281,9281
• Parties: Carol A. KOSTELECKY, Plaintiff and Appellee, v. Dale J. KOSTELECKY, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 400

251 N.W.2d 400

Carol A. KOSTELECKY, Plaintiff and Appellee, v. Dale J. KOSTELECKY, Defendant and Appellant.

Civ. No. 9281.

Supreme Court of North Dakota.

Feb. 24, 1977.

Syllabus by the Court

1. Determination of child support and property division by a trial court in a divorce case are treated as findings of fact, and are to be set aside on appeal only when shown to be clearly erroneous.

2. It is within the discretion of the trial court to determine what constitutes an equitable division of property.

3. Distribution by the trial court which required the husband to make payments of $608.00 per month out of his $800.00 monthly salary, and awarded possession of the house to the wife and two children, was not clearly erroneous.

4. If the financial circumstances of one party have changed, the proper procedure is to return to the trial court to allege a material change of circumstances.

William R. Mills, Bismarck, for defendant and appellant.

Bair, Brown & Kautzmann, Mandan, for plaintiff and appellee; argued by Bruce B. Bair, Jr., Mandan.

SAND, Justice.

Issues regarding property settlement and support payments are raised in this appeal from a judgment of divorce in the Morton County district court.

Dale Kostelecky and Carol Kostelecky were married on September 2, 1967, and had two children during their marriage, Scott, age 7, and Tonee Ann, age 2. On January 30, 1976, Carol Kostelecky commenced an action for divorce against her husband on grounds of irreconcilable differences. An interim order was issued on February 2, 1976, granting temporary custody of the children to their mother and requiring the defendant, Dale Kostelecky, to make certain payments, including temporary support and attorney's fees, and to show cause why possession of the family home should not be granted to Carol Kostelecky. The terms of the interim order are not contested on this appeal.

After the uncontested divorce trial in July of 1976, custody of the children was awarded to the wife, and liberal visitation rights given to the husband, who was also found to be a fit parent. Support payments to be made by the husband were set at $150.00 per month per child. The wife was awarded possession of the family home until the youngest child reached 18 or unless both parties agreed to a sale of the home prior to that time. Ownership of the home was awarded one-half to each party, and each was required to contribute one-half toward the monthly mortgage payment.

From the division of the remaining property the wife received $3,207.00 worth, and assumed debts of $220.00. Her net award after deduction of attorney's fees was $2,587.00. The husband received property worth $7,786.00, and assumed a debt of $5,883.00, which in large part involved a mortgage on items of personal property awarded to him, among them a camper pickup, garden tractor, snowmobile, and two camper toppers. His net award was $1,903.00, $680.00 less than that awarded to the wife.

The husband is employed as a plumber with a net income of approximately $800.00 per month. Early in the marriage the wife had worked for Northwestern Bell, and later worked at a uniform shop. At the time of trial she was working part-time at a day care center earning approximately $100.00 per month. The couple differed in their estimates of the value of their home, on which there was a mortgage of close to $12,000.00. Their estimates ranged from $25,000.00 to $32,000.00.

The principal issues raised by the husband on this appeal are the portion of his income required to meet his obligations under the divorce decree, and the disposition of the house. He argues that after making the required monthly payments he is left with only $192.00 per month to live on out of his $800.00 per month income, and that the payment requirement by the trial court is clearly erroneous. He contends that a fair and equitable disposition would be to sell the home, pay off the debts, and divide the remaining proceeds. He would then be required to continue to pay child support only. If these were insufficient for the wife and children, he suggests that some other source, such as Aid to Families with Dependent Children, be used to supplement their income. The disposition made by the trial court, he argues, fails to take into account his needs, in addition to those of the wife and children.

The trial court's determination on matters of child support and property division are treated as findings of fact. Rambel v. Rambel, 248 N.W.2d 856 (N.D.1977); Larson v. Larson, 234 N.W.2d 861 (N.D.1975). Our scope of review on appeal of these findings is therefore limited by Rule 52(a), North Dakota Rules of Civil Procedure, and we cannot set aside those findings unless they are clearly erroneous. 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. Rambel, supra ; Scheid v. Scheid, 239 N.W.2d 833 (N.D.1976).

There is no clear rule by which division of property is to be made in a divorce case, and the determination of what is an equitable division lies within the discretion of the trial court. Schumacher v. Schumacher, 242 N.W.2d 136 (N.D.1976). Johnson v. Johnson, 211 N.W.2d 759 (N.D.1973). After reviewing the record, we are not left with a definite and firm conviction that a mistake has been made, and must conclude that the distribution made by the trial court was not clearly erroneous.

It was within the trial court's discretion to award possession of the family home in this case to the wife. She was given custody of the children, for whom the stability of remaining in a familiar home may be important. In addition, by contributing one-half of the mortgage payment each month the wife is able to provide adequate housing for her children at a cost of about $65.00 per month. Other housing at this price would be difficult to find if the present home were sold and the proceeds divided.

Although the husband is correct in stating that his interest in the home may be tied up for as long as 15 years, the fact remains that retaining the home is of benefit to him as well. In Larson v. Larson, 234 N.W.2d 861 (N.D.1975), where we dealt with a similar issue, this Court pointed out that where both parties share in ownership of the home and contribute toward monthly payments, their equity increases with every payment. Here the couple's only substantial asset is their home, and when it is finally sold the husband should realize a good return on his investment. Until that time, the primary concern is that the children are provided with adequate yet economical housing along with some semblance of stability.

Disposition of the remaining property...