Rudel v. Rudel, 9593

• Decision Date: 22 May 1979
• Docket Number: No. 9593,9593
• Citation: 279 N.W.2d 651
• Court: North Dakota Supreme Court
• Parties: Catherine M. RUDEL, Plaintiff and Appellee, v. Arthur G. RUDEL, Defendant and Appellant. Civ.

Page 651

279 N.W.2d 651

Catherine M. RUDEL, Plaintiff and Appellee, v. Arthur G. RUDEL, Defendant and Appellant.

Civ. No. 9593.

Supreme Court of North Dakota.

May 22, 1979.

Lamb, Schaefer, McNair & Larson, Fargo, for defendant and appellant; argued by Bruce H. Carlson, Fargo.

Wheeler, Wolf, Wefald & Peterson, Bismarck, for plaintiff and appellee; argued by Robert O. Wefald, Bismarck.

ERICKSTAD, Chief Justice.

The defendant, Arthur G. Rudel, appeals from a judgment in a divorce action contending, among other things, that the court inequitably divided the marital estate. We affirm.

The action was commenced by Catherine M. Rudel by service of a summons and complaint dated January 10, 1977. An interim order was issued by the district court on January 11, 1977, providing in part for payments of temporary support by Arthur to Catherine. The case was tried in the District Court of Foster County on September 7, 1977, and a memorandum opinion was issued by the court on August 17, 1978. The findings of fact, conclusions of law and order for judgment were executed on August 29, 1978. The judgment was dated August 29, 1978, and notice of the entry of the judgment was served upon Arthur by mail on the 14th of September, 1978. ¹ The parties were married on January 10, 1951, and thereafter engaged in farming near the city of Fessenden. During the course of the marriage, they acquired approximately 690 acres of real property, of which 160 acres were received as a gift from Catherine's family, and of which 80 acres were received as a gift by Arthur from his family. Of the balance of the land, 160 acres had been owned by Arthur's family but were acquired by purchase, and 290 acres of the land were purchased on a contract for deed in 1973, with a balance to be paid thereon at the time of the trial of approximately $40,000.

In addition to the acquisition of the real estate, substantial personal property was acquired during the marriage.

Arthur apparently does not object to the values placed upon the property by the court, nor does he object to the mode of dividing the property which permits him to continue to farm the land subject to his payment of a cash settlement of $40,000 within six weeks of the service of the notice of entry of judgment, an installment note of $152,476 bearing interest at the rate of seven percent in 15 annual payments, and cash of $3,162.50 with interest within a similar six-week-period; but he does object that the trial court excluded from the division of the property, the 160 acres acquired by the parties from Catherine's family, and the 80 acres of land acquired by Arthur from his mother.

This issue is phrased by Arthur in this language: "Did the trial court err in ordering the property division and settlement while under the assumption that 'equitable' and 'equal' are synonymous?"

He asserts, and he is correct, that in dividing property in connection with a divorce, the trial court is required to make an equitable distribution of the real and personal property of the parties. See Section 14-05-24, N.D.C.C. He also points out that there is no rigid rule as to what is an equitable distribution and that the determination of what is equitable depends upon the particular facts and circumstances of each case. Fleck v. Fleck, 79 N.D. 561, 58 N.W.2d 765 (1953); Nicholson v. Nicholson, 126 N.W.2d 904 (N.D.1964).

He further asserts that our court has said on a number of occasions that there is no requirement that a property division be equal to be equitable. Hultberg v. Hultberg, 259 N.W.2d 41 (N.D.1977); Haugeberg v. Haugeberg,258 N.W.2d 657 (N.D.1977); and Grant v. Grant, 226 N.W.2d 358 (N.D.1975). This is true. He next asserts that although an equal division may in some cases be equitable, where such a division is made on the erroneous assumption that the law mandates an equal division of jointly held property in all cases, such a division must be set aside. Hultberg v. Hultberg, supra at 44. Citing Hultberg, he states that although an equal division in some cases may be equitable, where such a division is made on the erroneous assumption that the law mandates an equal division of jointly held property, irrespective of the contributions of the parties, such a division must be set aside.

Referring to a part of the memorandum opinion of the court, he contends that the trial court rendered its decision under the erroneous impression that equitable and equal are synonymous.

The part of the opinion which he relies upon reads:

"It should be readily noted that in this instance the court has taken the position championed by the plaintiff's attorney to the effect that Equitable and equal are synonymous." (Emphasis provided by Arthur.)

He further refers us to similar language contained in part III of the trial court's conclusions of law.

He concludes that under an erroneous view of the law the trial court has made an erroneous division of the property.

Our analysis of what the trial court has done is that it has adopted for the sake of this case alone, because of the circumstances of this case, a view that an equal division of the property other than the inherited property is an equitable division to the parties.

Such a conclusion, however, still leaves undecided the question of whether or not it was proper for the trial court to first take from the marital estate and award to the individual parties the property which he or she inherited.

In response to that issue, Catherine contends that under the Ruff-Fischer guidelines and the cases that have applied those guidelines to aid in the division of property, this court has affirmed divisions of property as not being clearly erroneous under Rule 52(a) of the North Dakota Rules of Civil Procedure, when the trial court has taken into consideration that certain property was inherited.

In Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 at page 111 (1952), our court adopted the rule applied by the Supreme Court of Nebraska:

"In determining the question of alimony or division of property as between the parties, the court, in exercising its sound discretion, will consider the respective ages of the parties to the marriage; their earning ability; the duration of and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances as shown by the property owned at the time, its value at that time, its income-producing capacity, if any, and whether accumulated or acquired before or after the marriage; and from all such elements the court should determine the rights of the parties . . ." 52 N.W.2d at 111.

In Fischer v. Fischer, 139 N.W.2d 845, 847 (N.D.1966), in syllabus P 7 of the court, we added to the guidelines the phrase "and such other matters as may be material."

Although the rule leading up to and applied in Fischer was that the division of property would not be set aside in a divorce judgment unless it was found that the trial judge abused its discretion, since the adoption of Rule 52(a), N.D.R.Civ.P., we have applied Rule 52(a) in determining whether or not a trial court's division of property is equitable. ²

Since Ferguson v. Ferguson, 202 N.W.2d 760 [N.D.1972], and its progeny, we have applied the clearly erroneous test to findings of a trial court relating to the division of property between the parties in actions for divorce. ³

In Bellon v. Bellon, 213 N.W.2d 376 (N.D.1973) and in Grant v. Grant, supra, we declined to hold clearly erroneous divisions of property made by trial courts which took into account inherited property and awarded it or part of it to the party who inherited it and thereafter divided the balance of the marital estate equally or substantially so.

In Bellon, this court approved a division of property which awarded to the wife two savings accounts totaling $18,192 which represented money the wife had inherited in recent years from her mother and aunt in addition to property totaling.$26,483, and awarded to the husband property valued at $28,954. It did so saying it was applying the Fischer guidelines. Bellon v. Bellon, supra at 380.

In Grant this court upheld a division of property in which the trial court excluded one-half the value of five quarters of land acquired by the husband from his parents in determining the marital estate. The trial court did this on the basis that one-half of the value of the five quarters had been earned by the husband's work and the other half of the value had been intended as a gift from his parents to him. The trial court, in effect, excluded from the marital estate the one-half value intended as a gift to him.

This brings us to a consideration of the size of the present estate if the inherited property were included in it and the significance of the exclusion of it. The 80 acre tract of land was estimated to be of the value of $32,000, and the 160 acre tract of land was estimated to be of the value of $57,025. When $32,000 is added to the $202,476 in value awarded to Arthur and $57,025 is added to the $202,476 in value awarded to Catherine, one arrives at the sum of $493,977. The difference between what Arthur received and Catherine received amounts to $25,025, or .0506, or approximately five percent of the estate. From this perspective, it does not appear to us that the trial court's division of property is clearly erroneous. In so concluding, we take into consideration that the trial court may also have considered it beneficial, not only for Catherine, but also for Arthur, that Arthur be permitted to continue in the farming business and that to facilitate this, he awarded all of the real and personal property to Arthur subject to the obligations previously referred to. The trial court could also have considered that in times of inflation, land is more apt to keep abreast of inflation than a note which is tied to a definite amount of interest.

The next issue is whether or not the...