Rummel v. Rummel

• Decision Date: 15 March 1978
• Citation: Rummel v. Rummel, 265 N.W.2d 230 (N.D. 1978)
• Parties: Gilbert RUMMEL, Plaintiff and Appellee, v. Stella RUMMEL, Defendant and Appellant. Civ. 9418.
• Court: North Dakota Supreme Court

Page 230

265 N.W.2d 230

Gilbert RUMMEL, Plaintiff and Appellee, v. Stella RUMMEL, Defendant and Appellant.

Civ. 9418.

Supreme Court of North Dakota.

March 15, 1978.

Rehearing Denied April 20, 1978.

Maurice R. Hunke, Dickinson, for plaintiff and appellee.

Floyd B. Sperry, Bismarck, for defendant and appellant.

SAND, Justice.

This is an appeal by Stella Rummel from a Stark County district court judgment and from an order ¹ amending the judgment in a divorce action.

After the trial, the court awarded both parties a divorce on the grounds of irreconcilable differences; granted custody of the two minor children to Stella; made a division of the parties' properties; and ordered Gilbert Rummel to pay temporary support in the amount of $300.00 per month for the support of the two minor children, and $100.00 per month for the support of Stella, until liquidation of the parties' real and personal property was completed. Judgment was entered accordingly.

After the entry of judgment, original counsel for Stella withdrew. Thereafter she was represented by present counsel.

At the outset we find it appropriate to observe that generally, in the absence of unusual circumstances, new counsel on appeal is limited to the same issues that prior counsel would have been able to raise. Merely becoming a successor to prior counsel does not give him the right to raise issues on appeal which prior counsel could not have raised. The issues and the positions of the respective parties remain the same.

"It is not our function to seek out error, which the trial court was not given an opportunity to rectify, or to remake the record for review, or to allow second guesses on trial strategy." Waletzko v. Herdegen, 226 N.W.2d 648, 653 (N.D.1975); Welken v. Conley, 252 N.W.2d 311, 317 (N.D.1976).

Neither, on appeal, should we allow the introduction of new issues not presented to the trial court.

Issues presented for the first time to the court in a motion for a new trial are generally too late to be seriously considered to make a new rule of law or to refine an existing rule. Kirchoffner v. Quam and Maple River Golf Club, Civil No. 9398, 264 N.W.2d 203 (N.D.1978).

In State v. Motsko, 261 N.W.2d 860 (N.D.1977), we said "It is easy for new counsel on appeal (or for an appellate judge, for that matter) to go through a transcript and find matters that could have been explored further, questions that could have been asked but were not, questions that were asked that should not have been asked, objections that could have been made that were not, and witnesses who could have been called but were not or witnesses who would have been better left uncalled. Hindsight is perfect and criticism easy. But the lawyer engaged in a trial, who has made an investigation of the facts and has talked to the witnesses, may have his own reasons and they may be very good reasons for not asking a question or making an objection or calling a witness. In all fairness, courts may pay some respect to the right and duty of attorneys, whether court-appointed or not, to use judgment in the heat of a trial, and we must have some doubts about the accuracy of second-guesses later on."

We also said:

"It is just as true in criminal cases as in civil cases, and as true in appeals as it is in motions to reopen judgments, that parties will not be relieved from free, calculated, deliberate choices they have made (City of Wahpeton v. Drake-Henne, Inc., 228 N.W.2d 324 (N.D.1975); Schnell v. Schnell, 252 N.W.2d 14 (N.D.1977)) and that it is not our function to allow second-guesses on trial strategy (Waletzko v. Herdegen, 226 N.W.2d 648 (N.D.1975); Rummel v. Rummel, 234 N.W.2d 848 (N.D.1975))."

Stella raises four issues on appeal. She contends that

(1) The trial court failed to set out its findings of fact as required by Rule 52(a), North Dakota Rules of Civil Procedure, and failed to make a finding of fact as to value of the property and its indebtedness;

(2) The trial court committed error in not determining the issue of fault or faults of the parties;

(3) The court erred in placing the parties' property in a receivership when it was not for the sole purpose of securing and enforcing payments to be made by one of the parties to the other for the care of the children or either party pursuant to § 14-05-25, North Dakota Century Code; and

(4) The trial court erred in directing payment of $15,000.00 to Gilbert as a reasonable amount to be received for advance inheritance and gifts from his parents.

On the first issue, Stella contended that the trial court erred by not setting out more fully the facts in its findings of fact and by referring to its oral decision which was contained in the transcript of the trial but which was not transcribed until a later date.

The trial court's formal findings of fact, conclusions of law, and order for judgment contained the following statement in the findings of fact:

"That the Court in its Memorandum Decision entered into the record of proceedings herein did state all of the factors considered by the Court in its determination of the disposition to be made of such real and personal property and indebtedness of the parties and did state its reasons therefor."

Stella contends that the reference in the court's formal findings of fact to its oral decision announced at the conclusion of the trial was not available until the record was transcribed at a later date and as such did not satisfy the requirements of Rule 52(a), NDRCivP.

Rule 52(a), NDRCivP, as is pertinent to this question, provides as follows:

"If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. . . ."

"In Higgins v. Mills, 181 N.W.2d 726, 730 (N.D.1970), this court said that where the memorandum of decision clearly contains findings of fact and conclusions of law it is not necessary that they be set forth in the judgment. Pursuant to Rule 52(a), NDRCivP, the opinion or memorandum of decision must be filed to meet this requirement. In order to be filed it must be in writing, as the term "memorandum of decision) implies. An oral decision not transcribed does not meet the requirements of Rule 52(a). Had the opinion been transcribed, signed, and filed we would have a different situation. But because the oral opinion has now been transcribed and made part of the record on appeal, we may examine it to help elucidate the formal findings of fact.

We note that the court in this case filed formal findings of fact, conclusions of law, and order for judgment. The real issue, then, is whether or not these findings of fact, as they may be clarified by the oral opinion, are adequate for the disposition of the issues involved at the trial court.

In making this determination, we will recognize and consider findings of fact regardless of the label that may be placed upon them or that they may be denominated by their placement as conclusions of law. Pulkrabek, Inc. v. Yamaha International Corporation, 261 N.W.2d 657 (N.D.1977); Jahner v. Jacob, 233 N.W.2d 791 (N.D.1975). We will also take into account that Stella did not make a motion as permitted under Rule 52(b), NDRCivP, to either amend or make additional specific findings as to the value of the property even though she made a motion for a new trial and to reopen the judgment, which was denied. The inadequacy of the findings of fact was raised for the first time on appeal. Stella's contention in this respect will be carefully scrutinized. Kirchoffner, supra.

On the disposition of the property, the trial court decreed that

"The balance remaining, if any, shall be divided by the receiver equally between the parties hereto, after determining and applying various credits and adjustments for any personal property which either of the parties may have selected pursuant to the provisions of Paragraphs 6(a) and 6(b) hereinabove." (Emphasis added.)

Earlier in the judgment the court provided that Gilbert should have the first right to select and retain certain property used in farming and ranching operations and that Stella would have the first right to select and retain certain property, and that the real property to be sold for a sum not less than $207,559.00, which was the appraised value of the property, and that the receiver pay out of the proceeds first the various debts and obligations of the parties.

Counsel has not illustrated the need for the additional findings of fact or how they would be significant in the disposition of the property. Neither does the need, if any, seem to be apparent. The property is to be disposed of at a public sale. Either of the parties may bid on the property. The ultimate proceeds of the sale will be divided equally after first paying obligations and indebtedness, except for the $15,000.00 allowed to Gilbert as advance inheritance. Under these circumstances, we fail to see a need or benefit for additional or more specific findings of fact as to the exact value of the property involved and its indebtedness.

The ultimate disposition of this issue, however, rests in part, at least, upon the resolution and determination of the other issues raised on appeal, including whether or not they are properly before this court for review.

Stella contended that the trial court committed error in not determining the issue of fault or faults of the parties.

The complaint seeking the divorce was founded on irreconcilable differences. The divorce was granted on those grounds. In determining a divorce action on irreconcilable differences the court need only find that irreconcilable differences exist and is not required to go into the conduct or, as it is sometimes referred to, the fault of the parties. Irreconcilable differences as grounds for divorce, we believe, was adopted to eliminate the public accusation of wrongdoing by the parties.

However, as to other matters, such as custody of children, child support, support or alimony of either...