Mattis v. Mattis, 9480

• Decision Date: 08 January 1979
• Docket Number: No. 9480,9480
• Citation: 274 N.W.2d 201
• Parties: Donna Kay MATTIS, Plaintiff and Appellant, v. Eugene E. MATTIS, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 201

274 N.W.2d 201

Donna Kay MATTIS, Plaintiff and Appellant, v. Eugene E. MATTIS, Defendant and Appellee.

Civ. No. 9480.

Supreme Court of North Dakota.

Jan. 8, 1979.

Rehearing Denied Feb. 1, 1979.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for plaintiff and appellant; argued by Gordon W. Schnell, Dickinson.

Jerome L. Jaynes, Hettinger, for defendant and appellee.

SAND, Justice.

Following a marriage of slightly over two years, the parties to this action sought and were granted a divorce in Adams County district court on grounds of irreconcilable differences. Pursuant to the court's order, the judgment made a division of the parties' personal possessions and household items. This division is not challenged on appeal. The issue in this case, however, arises over the distribution of certain other major assets and liabilities of the parties. Appellant contends the trial court made an unequal distribution of those assets and that the evidence is insufficient to support such an unequal distribution. We affirm.

Eugene E. Mattis (Gene) and Donna Kay Mattis (Donna) were married on 22 October 1975. During the course of their marriage they resided in Hettinger, North Dakota, where Gene farmed and worked part-time as a carpenter, and Donna was employed as a county health nurse. Both parties had been married previously and both had children from those previous marriages. No children were born to this marriage and only Donna's youngest daughter resided with the parties on a permanent basis during the period of their marriage.

At the time of the marriage Donna owned, in addition to her personal possessions and household goods, the following assets:

                Cash                                  $ 1,000
                Stocks and other investments           65,248
                Automobile (the value of this          ------
                  used automobile at the time
                  of the marriage is not available.)
                

At the same time, Gene owned the following assets in addition to his personal possessions and household goods:

                Cash                 $  1,451
                Land                   96,000
                Machinery and tools    15,872
                Stored wheat           15,151
                

In addition, Gene had liabilities in the amount of a $6,000 promissory note.

After the marriage the cash owned by the parties appears to have been placed in a joint checking account and used for living and farming expenses. Both parties contributed their income to the joint account maintained during the marriage, although the exact amount of the contributions as well as the source and amount of expenditures by each party is somewhat in conflict. The record does indicate, however, that Gene worked as a carpenter only part-time and that the farm income during the years of the marriage was below average.

During the marriage, Gene and Donna purchased a house and two lots from Gene's parents. The purchase price of the real property was $20,000 on which a $10,000 down payment was made from the assets held by Donna prior to the marriage. The remaining $10,000 on the contract for deed was still owing at the time of trial. Five thousand dollars worth of assets owned by Donna prior to the marriage were also used, together with her used automobile as a trade-in, to purchase a new automobile for her. Along with the house, lots, automobile, as well as personal and household items, the parties acquired the following assets during the marriage:

Machinery $ 5,112

Stored wheat 6,105

Although during the marriage the parties paid $3,000 on the promissory note made by Gene prior to the marriage; $27,067 of liabilities in the form of promissory notes, conditional sales contracts, and loans were incurred during the same period in addition to the $10,000 due on the contract for deed.

Differences developed between the parties shortly after the marriage which Donna testified were caused to some extent by the gambling and drinking habits of Gene. Following unsuccessful attempts of both parties to mend their differences, Donna filed a divorce complaint on 26 August 1977. After a bench trial held on 1 November 1977, the parties were granted a divorce on grounds of irreconcilable differences. The court on that date took under advisement the division of the parties' property and ordered them to submit lists of the personal and household property owned by each prior to the marriage, as well as a list of the personal and household items acquired during the marriage.

On 18 January 1978, a judgment was entered awarding to each party the personal possessions and household items owned by that party prior to marriage. The court also made a division of items of personal possessions and household goods acquired by the parties during marriage. Those divisions are not challenged on appeal.

Dividing the major assets of the parties, the trial court ordered that Donna receive the stocks and investments she owned prior to marriage which were still held by the parties, as well as the automobile that was purchased with the assets she owned prior to marriage. Donna was to receive from Gene the $1,000 cash she owned prior to the marriage which was used for living expenses in addition to the $10,000, plus interest, that was paid from Donna's investments for the down payment on the house.

Gene was awarded the farm land, the farm equipment, and the stored wheat, as well as the house and lots. In addition, Gene was to assume the outstanding liabilities including the $10,000 remaining on the contract for deed.

Donna asserts as the issue on appeal that the division of the major assets was inequitable.

We note that Donna was represented by different counsel on appeal than she was at trial. This court has, however, stated in Rummel v. Rummel, 265 N.W.2d 230, 232 (N.D.1978):

". . . in the absence of unusual circumstances, new counsel on appeal is limited to the same issues that prior counsel would have been able to raise. Merely becoming a successor to prior counsel does not give him the right to raise issues on appeal which prior counsel could not have raised. The issues and the positions of the respective parties remain the same.

" 'It is not our function to seek out error, which the trial court was not given an opportunity to rectify, or to remake the record for review, or to allow second guesses on trial strategy.' Waletzko v. Herdegen, 226 N.W.2d 648, 653 (N.D.1975); Welken v. Conley, 252 N.W.2d 311, 317 (N.D.1976)."

To this we add that ordinarily on appeals to this court the record must reflect that the appellant brought all matters necessary for the disposition of the issues raised on appeal before the trial court or that they were improperly excluded by the court; and that all issues raised on appeal were presented to the trial court but were not resolved in accordance with law. The appeal process is designed to review action taken by the trial court. It is not designed to give the appellant an opportunity to develop different strategy or theories. The appellant is bound by the record he made. Rummel v. Rummel, supra.

Donna argued the distribution of property was improper. In support of her argument she claimed that the only major items of property acquired by the parties during their marriage were the house and lots in addition to the farm machinery, but the trial court's award in effect restored to each party the property each had prior to the marriage and gave to Gene all the property accumulated during the marriage except for a few items of personal and household goods.

No specific finding of fact was made by the trial court as to the value of the property awarded, the fault of the parties, or the basis for its distribution. Donna contends that because specific findings of fact were not made on these matters this court is not confronted "with the usual situation of reviewing whether or not the findings are 'clearly erroneous' within the purview of Rule 52(a) of the North Dakota Rules of Civil Procedure." Donna then goes on to say there "are no material fact questions here which need to be settled by such findings of fact in order for the Supreme Court to know whether an equitable property division has been made."

We are not persuaded by her reasoning. Our review of fact matters is in accordance with the "clearly erroneous" rule set forth in Rule 52(a), NDRCivP. We have adequate reason to believe that the trial court had reasonable knowledge of the value of the property in the locality at the time it was purchased and drew appropriate inferences from the testimony presented. Any effort on our part to assign a value to the property in question at the time of acquisition and to the contribution each made would be speculative. In a divorce action the trial court's basis for its determination on matters of child support, alimony, and division of property are treated as findings of fact. Haugeberg v. Haugeberg, 258 N.W.2d 657 (N.D.1977); Kostelecky v. Kostelecky, 251 N.W.2d 400 (N.D.1977); Larson v. Larson, 234 N.W.2d 861 (N.D.1975). As we said in Haugeberg, supra, at page 659 "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 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 the definite and firm conviction that a mistake has been made. Kostelecky v. Kostelecky, supra; Rambel v. Rambel, 248 N.W.2d 856 (N.D.1977); In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973)."

Generally, a finding of fact on a controlling issue in a divorce action which fails to show the basis for the trial court's conclusion is held to be clearly erroneous. DeForest v. DeForest, 228 N.W.2d 919 (N.D.1975). We agree the findings of fact in this case could have been drawn in a manner to make clearer the basis for the trial court's distribution of the property. A property division, however, will not be set aside on the grounds of failure to show the basis for it if that basis is...