Sabot v. Sabot

• Decision Date: 30 March 1971
• Docket Number: No. 8649,8649
• Citation: 187 N.W.2d 59
• Parties: Delores M. SABOT, Plaintiff and Respondent, v. Lawrence C. SABOT, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 59

187 N.W.2d 59

Delores M. SABOT, Plaintiff and Respondent, v. Lawrence C. SABOT, Defendant and Appellant.

Civ. No. 8649.

Supreme Court of North Dakota.

March 30, 1971.

Rehearing Denied May 17, 1971.

Syllabus by the Court

1. Under North Dakota law, when the court grants a divorce it shall make such equitable distribution of the real and personal property of the parties as may seem just and proper.

2. Where the trial court in a divorce decree distributed real property to the husband but restrained him from alienating title thereto, because of his history of instability, in order to secure the payment of support moneys to the wife and the minor children of the parties, and where the trial court thereafter in its amended findings and conclusions stated that such distribution was not intended to be final, the distribution was not a final division of the property and, accordingly, the decree could be modified by the court.

3. In providing for the custody and care of the minor children, the welfare and best interests of such children is the primary concern of the court.

4. For reasons stated in the opinion, the trial court's order modifying the judgment and awarding the plaintiff one-third of the real estate is changed, and she is awarded $3,000 in lieu of a share of such property, said sum to be paid as provided in the opinion.

Rausch & Chapman, Bismarck, for plaintiff and respondent.

Thompson, Lundberg & Nodland, Bismarck, for defendant and appellant.

STRUTZ, Chief Judge.

The facts in this case disclose a long history of marital and domestic difficulties between the parties. They were married on October 30, 1952. To this marriage were born seven children, one of whom, a daughter named Claudia, is physically handicapped and is a resident of the Crippled Children's Home in Jamestown. The parties experienced difficulties in their relationship for some time prior to March 15, 1966, the day on which the plaintiff commenced her action for divorce. In her complaint, she alleged extreme cruelty on the part of the defendant. After being served with summons and complaint, the defendant served and filed an answer denying the material allegations of the plaintiff's complaint, and he counterclaimed for a divorce, also on the ground of extreme cruelty.

Prior to June 15, 1966, the day on which this action was to be tried, the attorney for the defendant served notice of motion and motion for an order permitting him to withdraw from the case. This motion was heard on the day set for trial. The trial court granted the motion and the case then was tried on the day set, although the defendant was without counsel. The court stated that the defendant had had ample notice of his attorney's motion to withdraw and that he could have made arrangements for other counsel. After one day of hearing, the case was postponed until the following Friday to allow the defendant to produce witnesses in his own behalf. The continued hearing never was held, however it appearing from the record that the defendant had been admitted to a hospital before the day set for such hearing.

Subsequently, the defendant employed other counsel, and, almost three months after the time of the partial hearing, the parties entered into a written stipulation relative to the custody of the children, the possession of the real property, the support payments to the plaintiff and the minor children, and other matters. Based upon the evidence which had been taken on June 15, 1966, and the provisions of the stipulation entered into by the parties, the trial court, on September 26, 1966, made its findings of fact, conclusions of law, and order for judgment. The stipulation, which was approved by the court, provided, among other things, that the plaintiff quitclaim her interest in the real property of the parties to the defendant, subject to a provision against alienation of such property which evidently was included so that the property would be available for support payments, which also were provided for, to be paid to the plaintiff for her support and for the support of the children. The custody of the children was awarded to the plaintiff. The court's order provided that the defendant should pay to the plaintiff 'for and as support for herself and the minor children of the parties' the sum of $300 per month on the 15th of each month thereafter for a period of twelve months, at the end of which period the plaintiff should move for an increase of such monthly payments to the sum of $400 per month, and the parties were to submit to the court statements of their financial condition and account for all moneys acquired by them during the previous twelve months.

Judgment was entered on September 28, 1966, granting to the plaintiff an absolute decree of divorce, requiring the plaintiff to execute appropriate deeds to the defendant of her interest in the real property, prohibiting alienation of the title to such property, and providing that the defendant pay to the plaintiff, as and for support of herself and the minor children of the parties, the sum of $300 a month, as stipulated by the parties.

Some months after the entry of judgment, a dispute arose as to whether the defendant had made all of the payments which were required of him by the terms of the judgment. The plaintiff started proceedings requesting that the defendant be found in contempt of court for failure to make the required support payments. The defendant filed his return and moved to modify the judgment by giving him custody of the children and eliminating all future support payments to the plaintiff.

After hearing of these various motions, the court found the defendant in default in making support payments in the sum of $200. The court further found from the evidence submitted that the custody of all of the children except the one in the Crippled Children's Home in Jamestown should be awarded to the defendant. At such hearing, the plaintiff also moved to modify the judgment further to award to her a part of the real estate which the parties owned at the time of the divorce action, but the court deferred action on plaintiff's motion. An amended judgment thereupon was entered on September 26, 1967, awarding custody of the children, except Claudia, to the defendant. In all other respects the provisions of the original decree were reaffirmed.

On October 30, 1967, the defendant made a further motion to modify the judgment by removing the restraints on alienation of the real property. The plaintiff countered with a motion for a division of the real property which the court previously had ordered quitclaimed to the defendant. These motions were set for hearing on November 18, 1968, and such hearing thereafter was continued to July 9, 1969. On the latter date, the trial court entered its order for distribution of the real property, awarding one-third of it to the plaintiff.

From an amended judgment entered on such order the defendant has taken this appeal, demanding a trial de novo.

The first issue to be determined on this appeal is whether the judgment of the court entered in this case ordering the plaintiff to quitclaim the real property to the defendant was a final settlement of the property rights between the parties or whether the court has the power, more than two years after entry of the divorce decree, to distribute the property of the parties by awarding one-third of the real estate to the plaintiff. In other words, is the judgment of September 28, 1966, subject to modification as to the distribution of the real property?

Our law provides that when a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper. Sec. 14--05--24, N.D.C.C. It further provides that the court may make suitable provision for the maintenance of the children of the marriage, and it may make such suitable allowances to the other party for support during the life of the parties or for such shorter period as to the court may seem just, having regard for the circumstances of the parties. It concludes with a provision that the court from time to time may modify its orders in these respects.

The authority of the court to distribute and divide the property of the parties in a divorce action is purely statutory (Harchenko v. Harchenko, 77 N.D. 289, 43 N.W.2d 200 (1950)), and must be exercised within limits prescribed by law. 27B C.J.S. Divorce § 291(1), at 260.

Alimony and support payments may be modified from time to time upon a showing of change of conditions and circumstances. Sec....