Rust v. Rust, 10152

• Decision Date: 01 July 1982
• Docket Number: No. 10152,10152
• Parties: Cheryl C. RUST, Plaintiff and Appellant, v. Curtis V. RUST, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 504

321 N.W.2d 504

Cheryl C. RUST, Plaintiff and Appellant, v. Curtis V. RUST, Defendant and Appellee.

Civ. No. 10152.

Supreme Court of North Dakota.

July 1, 1982.

James R. Brothers, of Schuster & Brothers, Fargo, for plaintiff and appellant.

Paul M. Hubbard, of Conmy, Feste & Bossart, Fargo, for defendant and appellee.

VANDE WALLE, Justice.

Cheryl Rust sought a decree of separation from bed and board. Curtis Rust counterclaimed for a divorce. The case was tried in the district court of Cass County, which entered a judgment of divorce for Curtis on the ground of irreconcilable differences. Cheryl appealed from the judgment. We affirm.

The parties were married on December 5, 1954. From 1954 to 1974 Curtis served in the United States Navy, which required numerous moves by the parties to duty stations throughout the world. After 20 years of service Curtis retired and was eligible for a military-retirement pension. They returned to North Dakota in 1975 and in 1976 they moved into their present marital home. The parties separated in 1977; Cheryl continued to live in the marital home.

The judgment and decree of divorce was entered on December 11, 1981. The judgment divided the parties' property and ordered the marital home sold with the proceeds to be applied to delinquent and current real-estate taxes, a first and second mortgage, and costs of the sale, the balance to be applied to other debts and thereafter to pay reasonable attorney fees and court costs for both parties.

The judgment also awarded to Cheryl spousal support payments on a decreasing basis over a period of 10 years. ¹

Cheryl raises on appeal the following issues:

1. Whether or not the trial court erred in failing to consider the conduct of the defendant during the course of the marriage in determining a division of the parties' property.

2. Whether or not the trial court erred in its application of the case of McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), to North Dakota law.

3. Whether or not the trial court erred in the amount of spousal support (rehabilitative alimony) awarded to the plaintiff because the military-pension income of the defendant was not taken into consideration in setting the amount of support to be awarded; and whether or not the trial court further erred in its finding that rehabilitative alimony cannot be permanent in nature or else it would constitute a division of property.

4. Whether or not the trial court's finding that the home must be sold is clearly erroneous.

5. Whether or not the trial court erred in failing to award to the plaintiff her attorney fees and costs.

I. CONDUCT OF THE DEFENDANT

Cheryl contends that the trial court failed to consider Curtis's conduct during the marriage when it made its division of property. Her position is that the Ruff-Fischer ² guidelines direct the trial court to consider, among other things, the conduct of each party during the course of the marriage when it makes a property division. She then focuses on the trial court's finding of fact which recognizes that during the marriage Curtis sexually molested ³ two of his children, that he was an alcoholic, that he contracted venereal disease from a bar girl in Japan, that he had kicked Cheryl out of bed, and that he expressed to her his desire that she were dead.

We note, however, the trial court's finding of fact No. 9 which discusses Curtis's contention that all of the fault is not on his side and his testimony that he did not beat or threaten Cheryl, that Cheryl was a hypochondriac who used too many prescription drugs and pills, and that Cheryl also drank to excess and became argumentative. We believe it is obvious that the trial court took into account the conduct of both parties when it made its property division. Under the Ruff-Fischer guidelines, the conduct of the parties is only one factor among a number of others to be considered by the trial court when dividing property. Conduct is not necessarily the sole or controlling factor and the guidelines do not require the division of property to be based on conduct of the parties; rather, they require that the trial court consider conduct in making the property distribution.

The trial court explained in finding of fact No. 20 its reason for an equal distribution of property, as opposed to an uneven distribution in favor of Cheryl, as follows:

"20. This Court finds fault on both sides to some degree. It is impossible for this Court to determine the percentage of fault attributable to one or the other or which party's conduct precipitated the fault of the other. The fault of the Defendant in molesting the children is too old to be seriously considered in that it happened many years ago and the children affected have good relationships with their father. The episode of sexual relations and contacting [sic] venereal disease from a bar maid in Japan is likewise too far in the past for this Court to consider it as a reason for uneven distribution of marital property. Testimony indicated that Plaintiff knew of this and her subsequent actions constituted a condonation of his conduct. Defendant's excessive use of alcoholic beverages during the marriage can be considered as a disease. This Court in its discretion believes that in the interest of justice it should not be under the facts in this case used as a factor to cause unequal distribution of the marital assets. Similarly the conduct of Defendant in kicking the Plaintiff or expressing desires that she were dead are attributable to his drinking...."

The record indicates that the trial court considered the testimony and evidence about the drinking by both parties, Cheryl's allegations of mistreatment, Curtis's allegations of Cheryl's paranoia and hypochondriasis, and all other complaints by the parties and then, being unable to determine who was at fault, concluded that the fairest thing to do would be to divide the property equally and award Cheryl rehabilitative alimony.

We have stated:

"There is no clear rule by which division of property is to be made in a divorce case, and the determination of what is an equitable division lies within the discretion of the trial court." [Citations omitted.] Kostelecky v. Kostelecky, 251 N.W.2d 400, 402 (N.D.1977).

We will not set aside a division of property by the trial court unless it is clearly erroneous. Rule 52(a), N.D.R.Civ.P. Our review of the record does not convince us that a mistake has been made. The distribution of property by the trial court was not clearly erroneous.

II. THE APPLICATION OF McCARTY TO NORTH DAKOTA

In McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), the United States Supreme Court held that a military pension was not community property subject to distribution by a State divorce court. It is Cheryl's position that a military pension under McCarty is not divisible as a property right in divorce actions, but that it can be considered by the trial court when determining an award of spousal support. We agree.

In Webber v. Webber, 308 N.W.2d 548 (N.D.1981), we briefly discussed the McCarty case. In Webber the trial court concluded that the plaintiff's military-retirement benefits were property rights constituting marital assets and as such were subject to distribution upon dissolution of the marriage. On appeal we remanded the case for the trial court to reconsider its position in the light of the then recent McCarty decision. ⁴ We stated:

"Though the McCarty case arose in California, a community property state, it is clear that the law of property division in states like North Dakota are affected as well." 308 N.W.2d at 549.

Webber makes it clear that a military-retirement pension is not a divisible asset for purposes of a property division. We did not, however, explain in Webber the effect of McCarty on a claim for spousal support because that issue was not before the court. The instant case differs from Webber in that it involves the trial court's award of spousal support, and McCarty recognizes garnishment of military wages and pensions for such support. 42 U.S.C. Secs. 659, 662.

We agree with the Florida Court of Appeals, which recently stated:

"In the well publicized McCarty case the U. S. Supreme Court held that a military pension was not community property subject to distribution by a state divorce court. The court did not hold that a pension was an asset which could not be drawn on to provide support for the ex-spouse and children. Indeed, as noted in McCarty, Congress has provided for the garnishment of military wages and pensions for just such support, 42 U.S.C. Secs. 659, 662. It is clear that the needs of national defense, as seen by Congress, do not require state courts to avoid all use of military pensions in support cases. The McCarty ruling does not prohibit a state divorce court from considering military pensions in support proceedings." Higgins v. Higgins, Fla.App., 408 So.2d 731, 732 (1981).

See also In re Marriage of Jones, 309 N.W.2d 457, 460-461 (Iowa 1981).

We noted in Webber, supra, 308 N.W.2d at 549-550, that an award of alimony, in some cases, may also be, in part, a type of property division. The instant case, however, does not involve commingling of a property distribution with alimony or support because the trial court clearly indicated in its finding of fact No. 19 that its award of rehabilitative alimony "is a pure spousal 'support' element and not a division of property."

In those cases where a military pension is involved and there is confusion as to whether or not an award of alimony includes a distribution of property, this court will have to determine on a case-by-case basis whether or not the restriction in McCarty has been observed.

III. REHABILITATIVE ALIMONY

Having expressed our agreement with Cheryl's position as to the application of McCarty to claims for support in North Dakota, we next examine Cheryl's contention that the trial court erred by not...