Pankow v. Pankow, 10833

• Decision Date: 11 July 1985
• Docket Number: No. 10833,10833
• Citation: Pankow v. Pankow, 371 N.W.2d 153 (N.D. 1985)
• Parties: August B. PANKOW, Jr., Plaintiff, Appellant and Cross-Appellee, v. Joan E. PANKOW, Defendant, Appellee and Cross-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 153

371 N.W.2d 153

August B. PANKOW, Jr., Plaintiff, Appellant and Cross-Appellee, v.Joan E. PANKOW, Defendant, Appellee and Cross-Appellant.

Civ. No. 10833.

Supreme Court of North Dakota.

July 11, 1985.

Robert Vogel Law Office, Grand Forks, and Johnson, Johnson, Stokes, Sandberg and Kragness, Wahpeton, for plaintiff, appellant and cross-appellee; argued by Robert Vogel, Grand Forks.

Miller, Norman & Kenney, Moorhead, Minn., for defendant, appellee and cross-appellant; argued by Patrick B. Kenney, Moorhead, Minn.

ERICKSTAD, Chief Justice.

This is an appeal by August Pankow and a cross-appeal by Joan Pankow from the district court's second amended judgment filed October 30, 1984, subsequent to our remand of this case in Pankow v. Pankow, 347 N.W.2d 566(N.D.1984)(Pankow 1 ).We reverse in part the court's second amended judgment and remand for more specific findings of fact.

August and Joan Pankow were granted a divorce on the ground of irreconcilable differences on February 7, 1983.The district court ordered August to pay child support of $150 per month until the youngest of the parties' two minor children reached the age of 18.The court awarded the parties' real estate, farm machinery, "grain on hand," and livestock to August.As her share of the property division, Joan was awarded monthly payments of $575 for the next 25 years.Joan appealed from the original judgment, alleging that the property division was inequitable and that the amount of child support was inadequate.In Pankow 1, we affirmed the district court's judgment with respect to the decree of divorce, and reversed that part of the judgment concerning the property distribution and child support.We stated in relevant part:

"In Tuff v. Tuff, 333 N.W.2d 421, 424(N.D.1983), we held that periodic cash payments without interest awarded as part of a property distribution must be discounted in determining whether or not the distribution is equitable....

"While we take notice of the fact that $172,500 paid in 300 monthly payments has a present value far less than $172,500, we will not usurp the power of the trial court to find the facts.We therefore remand the case to the district court for a reexamination of the property distribution.On remand, the court is to determine the present value of the monthly payments awarded to Joan and to reassess the distribution in light of this value.The district court should also take into consideration the fact that, if historical trends continue, the value of the land will substantially increase over the 25-year period, whereas the buying power of Joan's $575 monthly installments will substantially decrease.It is likely that the current disparity between the values of the property awarded to August and Joan may grow even wider in the future, and the district court should consider this fact when it reviews the property division."347 N.W.2d at 568-69.

We did not review the adequacy of the award of $150 per month in child support, stating that any changes made by the trial court in the property distribution may affect the adequacy of the child support.Id.

A hearing was held on July 6, 1984, at which time the district court heard additional testimony and arguments of counsel concerning the property distribution.A memorandum opinion was issued on August 30, 1984, from which amended findings of fact, conclusions of law, and order for judgment dated September 13, 1984, were drawn, and an amended judgment and decree entered on September 17, 1984.The district court's conclusions of law contain the following statement:

"Upon remand this Court feels there is no other way to divide the property, short of ordering that the property be sold for the most part, to achieve an equitable distribution in line with the findings previously entered, and in line with the reassessment ordered by the Supreme Court."

The court ordered that most of the parties' machinery and equipment, livestock, grain, and farm real estate be sold and the proceeds divided.The proceeds from the sale of the machinery and equipment, excluding a 1975 vehicle which was awarded to August, are to be divided on a 55/45 percent basis with August accorded the larger share for his part in arranging the sale.All proceeds from the sale of livestock and grain, with the exception of five percent of the proceeds to be paid to August for the hauling and disposing of this property, are to be divided equally.The court awarded August the "residence" and approximately ten acres of land.All the remaining land was ordered "sold for cash, the debts paid and the proceeds divided."The court ordered that all major farm liabilities to a maximum of $60,000 be deducted as necessary expenses from the sale of the land or machinery and livestock.Any additional debt exceeding $60,000 is to be deducted from August's share of the proceeds.August was ordered to pay child support of $150 per month in the manner previously ordered by the court in its original judgment.

Second amended findings of fact, conclusions of law, and order for judgment, and a second amended judgment and decree were filed on October 30, 1984, setting forth additional details concerning the sale of the property.The findings of fact contained in the district court's second amended findings of fact, conclusions of law, and order for judgment are the very same findings of facts set forth in the court's original findings of fact, conclusions of law, and order for judgment filed prior to our remand.¹

August contends that the district court failed to comply with our mandate in Pankow 1 by not determining the present value of the monthly payments awarded to Joan in the original judgment.In Minnkota Power Cooperative, Inc. v. Lake Shure Properties, 295 N.W.2d 122, 125(N.D.1980), we said:

"When the mandate of the appellate court makes clear the defects which need to be cured by the district court, the district court need do no more than rectify those defects and proceed in a manner consistent with the appellate opinion."

See alsoLayman v. Braunschweigische Maschinenbauanstalt, Inc., 356 N.W.2d 102(N.D.1984);VanRosendale v. VanRosendale, 342 N.W.2d 209(N.D.1983).

The court's second amended findings of fact do not include a determination of the present value of the monthly payments originally awarded to Joan.However, our examination of the transcript of a teleconference had on October 12, 1984, between the parties' attorneys and the district court concerning August's motion for a stay of the amended judgment pending appeal, reveals the following oral comments expressed by the court:

"I did play with the values for quite a period of time determining what I felt, under the circumstances, Mr. Pankow could afford based on the productivity of the land at the figure that I set reducing it to what would appear to be a present value.And it became readily apparent to me, and I am sure it is readily apparent to Mr. Kenney and it might also become apparent to you, Ms. Vogel, that setting up the type of payment schedule beyond the amounts that I originally awarded would not leave Mr. Pankow in business.It just--oh, certainly, he would have had some equity in the land which he could borrow to make eventual payments, but it was a situation of diminishing returns.There was just no way that I could take the $172,000, convert it to present value and attach an interest payment to it and come up with a payment schedule that he could handle in--based on productivity of the land.... and so I toyed with that idea before I considered the redistribution of the property."

An oral recitation by the court from the bench which is fully recorded is entitled to consideration on appeal, under Rule 52(a), N.D.R.Civ.P., to the extent that it contains findings of fact or conclusions of law by the court.Schneider v. S.L.M., 347 N.W.2d 126, 130(N.D.1984);Klitzke v. Klitzke, 308 N.W.2d 385, 388(N.D.1981);Williams v. Williams, 302 N.W.2d 754, 759(N.D.1981);Hust v. Hust, 295 N.W.2d 316, 321 n. 3(N.D.1980).We cannot ascertain from the teleconference transcript what present value the court concluded the monthly installment payments had.It is possible, however, that the court may have concluded that the present value, whatever it was determined to be, would not constitute an equitable division of property and that the property could not support a more generous installment program.

As the court made no specific findings on this issue and the transcript is not very revealing, we must reluctantly again remand this case for more specific findings, which it appears will require an additional evidentiary hearing.In so remanding, we are not saying that a sale of the property and distribution of the proceeds is or is not required, but that we cannot discern from the findings of fact or the record before us whether or not the property distribution is clearly erroneous.

August contends that the district court committed reversible error when it failed to specify the findings of fact on which it based its conclusion of law that "there is no other way to divide the property short of ordering that the property be sold for the most part."As we have already indicated, the findings of fact in the court's second amended judgment are identical to those contained in the original judgment in which the court expressed the view that the farm property did not have to be sold in order to effectuate an equitable property distribution.The court specifically found that August "is a farmer by occupation.This is the only trade that he knows and he has had no training in any other economic endeavor."

A trial court should "find the facts specially" in order to enable this Court to understand the basis of the trial court's conclusions of law.E.g., Graves v. Graves, 340 N.W.2d 903, 906(N.D.1983).Our holding in Pankow 1 was not intended to carry with it the implication that, as a matter of law, the farming operation had to be...