Nastrom v. Nastrom, 9375-A

• Decision Date: 26 September 1979
• Docket Number: No. 9375-A,9375-A
• Citation: 284 N.W.2d 576
• Parties: Sharon NASTROM, Plaintiff and Appellant, v. Ned NASTROM, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 576

284 N.W.2d 576

Sharon NASTROM, Plaintiff and Appellant, v. Ned NASTROM, Defendant and Appellee.

Civ. No. 9375-A.

Supreme Court of North Dakota.

Sept. 26, 1979.

Rehearing Denied Oct. 25, 1979.

Chapman & Chapman, Bismarck, for plaintiff and appellant; argued by Daniel J. Chapman, Bismarck.

Lundberg, Conmy, Nodland, Rosenberg, Lucas & Schulz, Bismarck, for defendant and appellee; argued by Patrick A. Conmy, Bismarck.

ERICKSTAD, Chief Justice.

The plaintiff, Sharon Nastrom, appeals from a judgment of divorce granted on the grounds of irreconcilable differences. Her basic contention is that the court inequitably divided the marital estate. We affirm.

This action was originally commenced against the defendant, Ned Nastrom, by service of a summons and complaint dated March 30, 1976. The case was tried in Burleigh County District Court on December 21, 1976. A memorandum opinion was issued by the district court on January 18, 1977. The findings of fact, conclusions of law, and order for judgment were executed on March 1, 1977, and Sharon appealed from that judgment to this court (262 N.W.2d 487 (N.D.1978)). This court reversed the division of property ordered by the district court ¹ and remanded the case for a new trial on the issue of property distribution, and, if necessary, on the reallocation of alimony.

A second trial was held in Burleigh County District Court commencing July 6, 1978. On October 30, 1978, the court issued its findings of fact, conclusions of law, and order for judgment, reverting back to the original property division with the exception of one additional item that was added to the property given to Sharon, that being a duplex with a net equity value of approximately $15,173. The district court also ordered that Ned pay an additional $1,000 for Sharon's attorney's fees, this being in addition to the $1,000 previously awarded at the first trial. Judgment was executed on November 10, 1978, and on November 24, 1978, Sharon made a motion for amendment of the findings, but this motion was subsequently denied.

On December 19, 1978, Sharon filed a notice of appeal, and, subsequent thereto, Ned made a motion to dismiss the appeal pursuant to Rule 27 of the North Dakota Rules of Civil Procedure. Sharon also made a motion for payment of transcript fees, as she was unable to pay the court reporter the $1,500 required in order to secure a transcript of the trial. The motion to dismiss the appeal was denied by this court and the motion for payment of the transcript fee was granted. (276 N.W.2d 130 (N.D.1979))

The parties were married in International Falls, Minnesota, on April 16, 1954. Both were very young and neither brought any property into the marriage. However, since 1954, the financial condition of the parties has changed dramatically, and to date, the Nastroms have attained considerable wealth.

On appeal, Sharon has raised several issues which will be dealt with throughout the course of this opinion. The primary issue, however, concerns the district court's division of the couple's property, and whether or not the division was clearly erroneous under Rule 52(a) of the North Dakota Rules of Civil Procedure.

Sharon first contends that the district court failed to comply with the mandate of the Supreme Court on remand. An examination of the record warrants the conclusion that this argument is without merit.

The case was remanded by the Supreme Court on the issue of property distribution. Specifically, the district court was instructed to receive evidence on the value of certain assets held by the Nastroms which were not disclosed at the first trial, and which therefore rendered the district court's findings erroneous. The record reflects that evidence of the value of each of the assets was received at the second trial and considered by the district court in dividing the marital estate.

The value of the mobile home located in Tappen, North Dakota, was determined to be approximately $3,000. The record also indicates that title to the home had previously been transferred to Sharon Werre, the 23-year-old daughter of Sharon and Ned.

The 12 1/2% Interest in Dick Fisher Motors of Glasgow, Montana, and the 25% Interest in Dan Porter Motors of Dickinson, North Dakota, were both sold by Ned Nastrom subsequent to the first trial. The stock was sold to Dick Fisher and Dan Porter at a net profit to Ned Nastrom of $2,000 and $10,000 respectively.

The partnership interest in Northern Properties, located in Williston, North Dakota, was sold to Don Peterson, and the 90 shares of stock held in Nastrom-Peterson Motors were transferred to Peterson in order to allow Ned to acquire 99% Interest in Nastrom-Peterson, Inc., as well as eliminate the debt owed to Peterson.

Finally, the 22 1/2% Interest in the leasing enterprise of Triple A Corporation was traded for stock in Western Rent-A-Car at a loss of $10,000 to Ned Nastrom.

All of these transactions occurred after the first trial in September of 1976, but before the second trial in July of 1978. Most of the business interests mentioned above were secured with 100% Financing, with no personal investment on Ned's part. The net realization from the sale of Fisher, Porter, Northern Properties, and Triple A Leasing was estimated by Ned to be $8,500. The purpose of these various transactions was to enable Ned to increase his ownership interest in Nastrom-Peterson from 40% To 99%, as well as pay off several outstanding debts owed against the stock of those corporations previously mentioned.

On remand, the district court heard testimony as to the value of the assets not mentioned at the first trial as well as to the value of each of the other assets owned by the Nastroms. The court also heard testimony relating to the conduct of the parties during the marriage.

Based upon the evidence adduced at the second trial concerning the value of the property to be distributed, and the conduct of the parties during the marriage, the district court concluded in its findings of fact:

"5.

"That the present net worth of the parties is approximately $160,000.00, and consists of cash, of capital stock of Nastrom-Peterson, Inc., of capital stock of Western-Rent-A-Car, of capital stock of the Bank of Kirkwood, of the homestead of the parties, of a duplex owned by the parties, of a forty percent (40%) interest in partnership property identified as 'Nastrom-Peterson-Neubauer land,' of an interest in real property identified as the 'body shop,' of the cash values of insurance policies, of a mobile home, of building lots in Florida, of household furnishings and goods, personal clothing, jewelry, and other miscellaneous items of personal property having a total value of $1,260,000.00; and that the parties have indebtedness outstanding to various financial agencies, individuals, and the United States government in the amount of $1,101,893.00, leaving a net worth of approximately $160,000.00.

"6.

"That the valuations of the capital stock of Nastrom-Peterson, Inc., was a major issue in the retrial proceedings, and that the court finds the value of the stock to be approximately $325,000.00."

Thereafter, in its conclusions of law and order for judgment, the district court made the following property division:

"2.

"(a) To the plaintiff the home of the parties, together with all household furniture contained therein . . .

"(b) To the plaintiff A cash payment of the sum of Ten Thousand Dollars ($10,000.00) . . .

"(c) To the plaintiff The sum of Forty Thousand Dollars ($40,000) payable at the rate of $333.33 per month for 120 months . . .

"(d) To the plaintiff Alimony . . . commencing on November 1, 1978, at the rate of $1,000.00 per month until her death or remarriage . . .

"(e) To the plaintiff . . . title to the duplex property owned by the parties.

"(f) To the plaintiff . . . the real property given to the plaintiff herein shall be given subject to any mortgage indebtedness thereon.

"(g) To the plaintiff . . . title to and possession of a 1977 automobile . . . of the approximate type and kind . . . in the plaintiff's possession on the 1st day of March, 1977.

"(h) To the plaintiff . . . $2,000.00 as and for the plaintiff's attorney's fees.

"(i) To the defendant All other property of the parties."

It is in regard to the above award of alimony, attorney's fees, and the division of property that Sharon appeals to this court.

This court has said many times in the past that the trial court's determination on matters of alimony and property division 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). The findings of the trial court on these matters will not be set aside unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P. A particular 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. Bender v. Bender, 276 N.W.2d 695 (N.D.1979); Bohnenkamp v. Bohnenkamp, 253 N.W.2d 439 (N.D.1977); In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973).

Our scope of review is thus limited by the clearly erroneous rule, and rightly so, for a judge present in the courtroom is in a much better position to ascertain the true facts by listening to and observing the demeanor of the witnesses than we are by reading the cold record.

There are no fixed rules by which a trial court is to divide the marital estate in a divorce case. The ultimate objective is to make an equitable distribution, and the determination of what is an equitable division lies within the discretion of the trial court. Piper v. Piper, 239 N.W.2d 1 (N.D.1976). This will depend on the facts and circumstances of each case. Johnson v. Johnson, 211 N.W.2d 759 (N.D.1973).

Section 14-05-24, N.D.C.C., does provide certain guidelines for the...