Mees v. Mees
| Decision Date | 20 October 1982 |
| Docket Number | No. 10163,10163 |
| Citation | 325 N.W.2d 207 |
| Parties | Adeline MEES, Plaintiff and Appellant, v. Herman W. MEES, Defendant and Appellee. Civ. |
| Court | North Dakota Supreme Court |
LaRoy Baird, Bismarck, for plaintiff and appellant.
James D. Schlosser, Bismarck, for defendant and appellee.
Adeline Mees appealed from a judgment 1 granting her a divorce from Herman Mees and awarding her alimony in the sum of $75 per month for a period of two years. We modify the judgment and affirm as modified.
Adeline and Herman had been married for some 34 years at the time of the divorce. They have seven children, all of whom are of the age of majority. Prior to the divorce the couple sold the family home and the proceeds were divided by agreement of the parties. The balance of the personal effects of the parties also were divided by agreement prior to the divorce.
At the time of the divorce Herman was 54 years of age and had worked for the same business for more than 20 years. Adeline was 51 years of age and had been employed as a sales clerk since 1974. Adeline has a grade-school education. She has a back condition for which she required surgery twice and she may require additional back surgery in the near future. Herman has pancreatitis, a condition for which he may require future medical treatment. During 1981 Herman's gross salary was $25,000 and his net was $16,000. Adeline earns $525 a month as take-home pay. In addition to these facts the trial court found that Herman had physically abused Adeline during the last five years of the marriage. The parties lived apart for nearly two years prior to the divorce trial. The trial court awarded Adeline a divorce on the ground of irreconcilable differences.
Adeline contends, on appeal, that the alimony award to her of $75 per month for two years is insufficient. She acknowledges that alimony and property divisions are findings of fact to be made by the trier of fact, to be reviewed by this court to determine whether or not those findings of fact are clearly erroneous under the standard set forth in Rule 52(a), N.D.R.Civ.P., and that it is her burden, on appeal, to show that the findings of fact are clearly erroneous. Svetenko v. Svetenko, 306 N.W.2d 607 (N.D.1981). Adeline urges us to conclude that the findings are clearly erroneous because the trial court, although finding that Herman physically abused her, did not find that he sexually abused her as she had testified. Adeline contends that because the trial court found that Herman physically abused her, the award of alimony to her should have been greater. It is true that the conduct of the parties during the marriage is one of the factors to be considered by the trial court. Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952). See Williams v. Williams, 302 N.W.2d 754 (N.D.1981). Recently we stated with regard to conduct of the parties:
Rust v. Rust, 321 N.W.2d 504, 506 (N.D.1982).
Subsequent to the judgment but prior to the appeal, Adeline moved the trial court for a new trial. In its opinion denying a new trial the trial court stated:
It is clear that the trial court did consider the conduct of the parties. It found that Herman physically abused Adeline but that did not weigh heavily in the trial court's determination. We reiterate that we have required conduct of the parties during the marriage to be only one of the factors considered by the trial court in dividing the marital property or in awarding alimony. We have not required that the division or award be based on that factor alone. Rust v. Rust, supra.
Adeline refers us to the decision in Hegge v. Hegge, 236 N.W.2d 910 (N.D.1975), in which this court, in reversing an award of alimony to the wife, indicated that fault or misconduct is significant and important in the question of alimony. We do not consider that case controlling in this instance. In Hegge the trial court gave no factual basis for the award nor did it explain or give any reason for allowing alimony. Furthermore, the party awarded alimony in Hegge was the party indulging in the misconduct and the misconduct was substantially greater than is present here.
We have indicated many times previously that a particular finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on all the evidence is left with a definite and firm conviction that a mistake has been made and that simply because we might have viewed the evidence differently, had it been presented to us initially as the trier of fact, does not entitle us to reverse the trial court. See, e.g., Williams, supra. We are not left with a definite and firm conviction that a mistake has been made here insofar as an award of alimony based on conduct of the parties is concerned.
However, further review concerning the award of alimony in this instance is in order. In some cases it has been difficult to determine whether an award of "alimony" is a type of property division or a form of spousal support. See, e.g., Eberhart v. Eberhart, 301 N.W.2d 137 (N.D.1981). Here, it is apparent from the award of "alimony" that the district court awarded it as spousal support and not as a type of property division. 2 Rust, supra.
Furthermore, the...
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