Larson v. Larson
| Decision Date | 23 October 1975 |
| Docket Number | No. 9118,9118 |
| Citation | 234 N.W.2d 861 |
| Parties | Myra Lee LARSON, Plaintiff-Appellee, v. Owen Harlan LARSON, Defendant-Appellant. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.
2. Findings that a party to a divorce action has established irreconcilable differences, that the best interests of the children of the parties to a divorce action would be served by maintaining the current ownership of the home and requiring the father to make monthly payments thereon, that the child support payments which the father is ordered to make are proper, and that a particular division of property between the parties to a divorce action is equitable, are appropriately dealt with on appeal as findings of fact. Consequently, a review of these findings is limited to a determination of whether or not they are 'clearly erroneous' within the purview of Rule 52(a), N.D.R.Civ.P.
3. A finding is 'clearly erroneous' only 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. 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.
4. Irreconcilable differences are those grounds for a divorce which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved. § 14--05--09.1, N.D.C.C.
5. In determining a division of property between the parties in a divorce action, the court, in exercising its sound discretion, will consider the respective ages of the parties; their earning ability; the duration of the marriage; 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 at that time, its income-producing capacity, if any, and whether accumulated or acquired before or after the marriage; and such other matters as may be material.
6. In determining the amount a divorced father should pay for support of minor children and for the maintenance of the family home, the court must be mindful not only of the needs of the children but also of the divorced father.
7. Rather than impose upon the divorced father an obligation which he cannot perform, the interests of the children involved can best be protected by striking a balance between the needs of the children and the ability of the father to pay.
8. Where it is established that the father's court-ordered payments and personal living expenses exceed his monthly income, and also established that the mother's monthly expenses for the support of the children and herself is less than the amount of money she has available for that purpose under the trial court's order, a finding by the trial court that the father continue to make payments in accordance with the amended judgment is clearly erroneous.
Ella Van Berkom, Minot, for defendant and appellant.
Wheeler, Wolf, Wefald & Durick, Bismarck, for plaintiff and appellee; argued by Albert A. Wolf, Bismarck.
This is an appeal from the amended judgment of the Burleigh County District Court in a divorce action commenced by Myra Lee Larson, the plaintiff (hereinafter Myra), against Owen Harlan Larson, the defendant (hereinafter Owen); and from the order of such district court denying Owen's motion to modify that portion of the amended judgment pertaining to the property settlement and support provisions.
The parties in this action were married on August 1, 1959, at Bismarck. Two children were born as the issue of the marriage, namely: Ward Douglas Larson, born November 24, 1961, and Craig Kenneth Larson, born December 26, 1968.
On October 11, 1974, Myra commenced this divorce action against Owen, alleging irreconcilable differences as grounds for the divorce, and seeking custody of the two children, support payments and suit money from Owen, and an equitable division of the parties' property. Owen, in his answer, denied the existence of irreconcilable differences and counterclaimed for a divorce on grounds of extreme cruelty. He also sought custody of the two children and an equitable division of the couple's property.
The district court granted both parties a divorce on grounds of irreconcilable differences and awarded custody of the two children to Myra.
The following property was owned by the couple at the time of the divorce:
Property Value Mortgage
---------------------------- ----------------- --------
House (located in $36,500 $25,800
Bismarck)
Lot on Garrison Reservoir 1,100 - - -
1972 Ford LTD automobile 2,000 - - -
1971 Ford Ranger pickup with
attached camper 1,800 - - -
Furniture None assigned
(house completely
furnished)
Owen's net monthly salary, after federal income tax, social security, and miscellaneous deductions is $1,364.21. In addition, Owen has the obligation to pay a state income tax. Myra receives an income from teaching piano lessons of from $200 to $400 per month, the total amount being in dispute between the parties.
On March 14, 1975, the district court's amended judgment and decree of divorce was entered, in which it was ordered that Owen pay to Myra for child support the sum of $200 per month per child; assume all outstanding debts of the marriage; maintain hospitalization and medical insurance for the children during their minority; maintain an existing trust account of $1,100 for the benefit of the two children; and maintain life insurance protection in the amount of $20,000 for each child, with the minor children named as beneficiaries.
The district court further ordered that the family home remain the home of the children and that Myra be permitted to occupy the home during the children's minority, with the provision that she keep and maintain it in a clean and livable condition. Owen is required to make payments on the home for taxes, insurance, mortgage interest, and mortage principal. The district court also imposed a restraint on alienation of the home, and further ordered that the equity of the parties be determined after the interests of the minor children shall have been served.
Finally, the district court awarded title to the Garrison Reservoir property and the 1972 Ford LTD automobile to Owen; and awarded title to the 1971 Ford Ranger pickup with camper attachment to Myra.
On April 5, 1975, Owen moved the district court for an order reducing child support payments, requiring sale of the home and division of the proceeds thereof, and liberalizing visitation rights. The basis of Owen's motion seeking a reduction in child support payments and the sale of the home was that he was financially incapable of complying with the court's order.
Payments which Owen is required to make each month by order of the district court are as follows:
Child support $400.00
House payment 270.00
Life insurance (for boys) 36.58
Boy's life insurance 12.00
Insurance on house 12.00
Dr. Worford (on orthodontist's
bill, outstanding at time of
divorce) 50.00
Medical insurance 27.00
-------
Total $807.58
Owen's monthly living expenses, as submitted by him in an affidavit to the district court, are as follows:
Rent $200.00
Utilities 44.83
Newspaper 2.40
Drycleaning & laundry 35.00
Clothing 30.00
Car expense 50.00
Medical 10.00
Food 180.00
Personal supplies & spending 70.00
Disability insurance 3.00
Income protection insurance 12.66
Automobile & personal property
insurance 16.50
-------
Total $654.39
Consequently, Owen contends that his total monthly expenditures exceed his net monthly income by the sum of $97.96, making it financially impossible for him to comply with the district court's order.
Myra's necessary monthly expenses for the support of herself and the children, according to her October 11, 1974, affidavit, are:
House payment $270.00
Gas 65.00
Water 10.00
Telephone 15.00
Food 200.00
Clothing 15.00
Laundry 10.00
Transportation 30.00
Drugs 5.00
Medical insurance 50.00
-------
Total $670.00
However, the $270 house payment is made by Owen under the terms of the amended judgment and decree of divorce.
Pursuant to the terms of the trial court's amended judgment, Myra has the following minimum amount available each month:
Child support $400.00
Income (from piano lessons) 200.00
House payment (including
insurance) 282.00
-------
Total $882.00
In addition, Myra may have additional income available, depending on the time of year from her teaching of piano lessons.
Myra, therefore has a net monthly suplus...
To continue reading
Request your trial
-
Kupperion, In Interest of, 10391
...760, 761 (N.D.1982); Voth v. Voth, 305 N.W.2d 656, 658 (N.D.1981); Keator v. Keator, 276 N.W.2d 135, 138 (N.D.1979); Larson v. Larson, 234 N.W.2d 861, 864 (N.D.1975); Matson v. Matson, 226 N.W.2d 659, 663 Ferguson v. Ferguson, 202 N.W.2d 760, 763 (N.D.1972). In Ferguson, supra, we determine......
-
Haugeberg v. Haugeberg, 9358
...alimony, and division of property are treated as findings of fact. Kostelecky v. Kostelecky, 251 N.W.2d 400 (N.D.1977); Larson v. Larson,234 N.W.2d 861 (N.D.1975). Our scope of review on appeal of these findings is limited by Rule 52(a), N.D.R.Civ.P., and thus we will not set aside those fi......
-
Hegge v. Hegge
...the efforts and attitude of the parties towards its accumulation; and such other matters or facts as may be material. Larson v. Larson, 234 N.W.2d 861 (N.D.1975); Ferguson v. Ferguson, 202 N.W.2d 760 (N.D.1972); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966); Dahl v. Dahl, 97 N.W.2d 844 (N.D......
-
Weir v. Weir
...to pay support. Davis v. Davis, 268 N.W.2d 769, 777 (N.D.1978). See also Cook v. Cook, 364 N.W.2d 74, 76 (N.D.1985); Larson v. Larson, 234 N.W.2d 861 (N.D.1975); Hoster v. Hoster, 216 N.W.2d 698, 702 (N.D.1974). In Davis we quoted with approval from Hoster, p 2 of the syllabus, which " '2. ......