Rambel v. Rambel

• Decision Date: 03 January 1977
• Docket Number: No. 9235,9235
• Citation: 248 N.W.2d 856
• Parties: Carol J. RAMBEL, Plaintiff and Appellee, v. Marvin O. RAMBEL, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 856

248 N.W.2d 856

Carol J. RAMBEL, Plaintiff and Appellee, v. Marvin O. RAMBEL, Defendant and Appellant.

Civ. No. 9235.

Supreme Court of North Dakota.

Jan. 3, 1977.

Syllabus by the Court

1. Trial court's determinations as to irreconcilable differences, property division, child support, and alimony are findings of fact and will not be reversed unless clearly erroneous. Rule 52(a), N.D.R.Civ.P.

2. If one party alleges irreconcilable differences as ground for divorce, and court finds such differences exist, the court need not hear evidence on 'fault' grounds asserted by other party, but may grant divorce on ground of irreconcilable differences.

Harry M. Pippin, of Bjella & Jestrab, Williston, for plaintiff and appellee.

Ella Van Berkom, Minot, for defendant and appellant.

VOGEL, Justice.

This is an appeal by Marvin Rambel from a judgment granting a divorce to Carol Rambel, and from the property division and alimony award included in that judgment.

The parties were married in 1960. Since their marriage, they have supported themselves by farming and by her part-time work as a nurse's aide. Five children were born to the couple during their marriage, their ages ranging from three years to sixteen years.

The wife sued for divorce in 1975, and the husband counterclaimed for divorce in his answer. Both asked for custody of the children and a property division.

The lower court granted the divorce to the wife on the ground of irreconcilable differences. She was awarded custody of the eldest and the two youngest children. The husband was awarded custody of the other two children.

The property division resulted in a fifty-fifty split of the couple's net assets. In addition, the husband was ordered to pay alimony for thirteen months at $200 a month to enable the wife to attend school, and child support in the amount of $85 a month for each of the three children residing with her.

The division of property resulted in the husband's retaining the farmland and buildings, plus all but one of the family's vehicles, in order to continue his farming business. The wife was awarded the residence and all its contents, one car, and the sum of $21,081.63, with interest at six percent, to be paid by the husband in five annual installments. Each received a one-half interest in the minerals owned by them in the farmland. Under this distribution, each party received about one-half of the net assets of the family.

The husband presents three issues to the court on this appeal:

1. He contends that he should have been granted the divorce on the ground of extreme cruelty, rather than her being granted the divorce on the ground of irreconcilable differences.

2. He contends that the evidence shows that he is not financially able to pay alimony and child support.

3. He contends that the property division is clearly erroneous.

For purposes of discussion, we will consolidate the second and third issues, since they both concern the financial situation of the parties in this case.

The questions raised by the appeal turn upon the evidence produced at trial and the trial judge's perception of that evidence. The trial judge has made findings of fact based on that evidence. Our determination of each issue, then, is controlled by Rule 52(a), N.D.R.Civ.P., defining the scope of appellate review of the trial court's findings of fact. As such, these fact determinations made by the trial judge cannot be set aside on appeal unless they are clearly erroneous: property division as finding of fact (Scheid v. Scheid, 239 N.W.2d 833 (N.D.1976)); and irreconcilable differences, child support, and division of property as findings of fact (Larson v. Larson, 234 N.W.2d 861 (N.D.1975)). We hold that the lower court's findings were not clearly erroneous, and we affirm the judgment.

This court will not hold that a lower court's finding of fact was clearly erroneous unless we have a definite and firm conviction that a mistake has been made. Scheid v. Scheid, supra; Hegge v. Hegge, 236 N.W.2d 910 (N.D.1975). On the record before us, we are not convinced that a mistake has been made in this case.

When the trial judge made his determination as to property division, alimony, and child support, he had before him evidence of the earning power of each of the parties, their financial status, the total financial assets of the family, and each party's ability to pay child support after divorce. The husband's business is left intact. The wife, as the dislocated party in the breakup of the marriage, was awarded temporary alimony for a fixed period to enable her to train for a profession in order to support her part of the family in the future.

In addition, the trial court found that the husband was financially able to pay child support, while the wife was not. We cannot quarrel with the trial court's findings here, in light of its determination of the other financial issues. The family...