Schumacher v. Schumacher, 9186

Decision Date12 May 1976
Docket NumberNo. 9186,9186
Citation242 N.W.2d 136
PartiesRosemary SCHUMACHER, Plaintiff and Appellee, v. John SCHUMACHER, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. The appointment of a receiver to manage property in a divorce proceeding is authorized by Section 14--05--25, NDCC, only for the purpose of enforcing reasonable security for providing maintenance or making required payments.

2. When a court orders the continuance of a receivership under Section 14--05--25, NDCC, beyond that required for reasonable security, it has erred as a matter of law.

3. On appeal, the Supreme Court can revise orders and decrees touching alimony, maintenance, custody and support pursuant to Section 14--05--25, NDCC, only if the record contains the necessary factual information.

William R. Mills, Bismarck, for defendant-appellant.

Sperry & Schultz, Bismarck, for plaintiff-appellee; argued by Alfred C. Schultz, Bismarck.

PEDERSON, Judge.

John and Rosemary Schumacher were separated in 1968 and divorced in 1972. A receiver was appointed to manage their farm and was directed to use the income for mortgage and tax payments and support of the seven minor children.

On June 25, 1975, the receiver asked the court to authorize him to execute a new mortgage in the amount of $50,000 so that the first mortgage could be paid off, and to provide funds needed to take care of the children and to pay some anticipated taxes. On July 2, John asked that child support be modified, that the receiver's application to increase the mortgage be denied, that the receivership be terminated, and that the farm real estate be divided between the parties, with other provisions made to secure support of the children during their minorities. On August 28, Rosemary asked for an increase in child support for the four minor children of the parties residing with her.

The three motions were combined for a hearing. All three parties were present and were represented by counsel, 1 and offered testimony in support of their positions. The court found:

'I.

'That the plaintiff is in need of child support during the minority of all of the children and the defendant should be ordered to continue to pay $80.00 per month as child support, without reduction, until the youngest child reaches the age of eighteen.

'II.

'That there is a need for a receivership and that the receivership should not be terminated, but should continue so that the assets are preserved and the children are assured of an income until the youngest child becomes of age, the receiver having made and filed annual reports, approved by the court, showing able and competent management of the property.

'III.

'That a new loan is needed to provide additional funds for the care and support of the family and to meet other receivership obligations and that a new loan is authorized in the amount of $30,000.00.'

The court ordered that the receivership should continue, that the receiver should execute a new mortgage to be amortized over a five-year period, and that he should apply the rent from the property to the mortgage payments and taxes, and to the support of the minor children. John appeals this order, alleging that findings of fact numbered II and III, and the order, are all clearly erroneous.

The receivership was originally established and continued under Section 14--05--25, NDCC, which states:

'The court may require either party to give reasonable security for providing maintenance or making any payments required under the provisions of this chapter, and may enforce the same by appointment of a receiver or by any other remedy applicable to the case. When the wife has a separate estate sufficient to give her a proper support, the court in its discretion may withhold any allowance to her out of the separate property of the husband. The court, in rendering the decree of divorce, may assign the homestead or such part thereof as to the court may seem just, to the innocent party, either absolutely or for a limited period, according to the facts in the case and in consonance with the law relating to homesteads. The disposition of the homestead by the court, and all orders and decrees touching the alimony and maintenance of either party to a marriage and for the custody, education, and support of the children are subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court.'

The trial court's memorandum opinion, supporting the order establishing the receivership in 1967, stated:

'The one asset (of the parties) which is fairly substantial is the land. It is felt that unless the farm land is properly managed, it is apt to be lost because of the large loan against it. The land will therefore be placed in receivership, the receiver to be a person agreed upon by counsel for plaintiff and defendant with all of the usual powers of a receiver. In addition the receiver will see that all income from the land is applied first against the taxes and the loan and that any amount in excess thereof be used for the support of the children during their minority.'

John does not deny that the farm was poorly managed at that time and that the receivership was needed. He alleges, however, that conditions have changed to such an extent that the receivership is no longer required.

John states that in 1967 the land was worth $60,000 and the mortgage against it was $27,000. He alleges that, in 1975, the land was worth over $150,000 and that the mortgage had been reduced to $22,000. He stated that in 1967, with seven minor children, there were 720 child-months of support to pay. Now, eight years later, there are only four minor children and only 90 child-months left.

John also stresses changes in the living conditions of the parties involved. He alleges that when he and Rosemary were living together they took no vacations, the children were poorly dressed, and, as Rosemary put it, 'they didn't have nothing.'

The standard of living of Rosemary and the children has improved steadily since the receivership was established. All of the children, except the three youngest, have gone through high school and one is going to college. The children are all dressed well and the family has had at least one vacation. Rosemary has had an average income of $880 per month. She has been earning $500 per month, the receiver has been giving her $300 per month, and John has contributed $80 per month in child support. There was testimony, however, that because of health problems Rosemary's future earnings will be reduced considerably.

John's undisputed testimony shows that his standard of living is much lower. John stated that he is trained and was raised to be a farmer. Two of the five quarters of land were given to John by his father to help him realize his ambition to farm. He claims that by being deprived of his farm he was forced into low-paying jobs as a bartender and taxicab driver. John earns $380 per month when he is working and his expenses are $55 per month in car payments, $60 per month for the sleeping room in which he lives, and $80 per month for court-ordered child support. He has borrowed money from his father to meet his expenses and he has not paid him back.

It is well established that courts invested with jurisdiction or power to grant divorces and to award alimony and support money have the power to change or modify the amount to be paid or the method by which it is paid whenever circumstances of the parties have materially changed. Section 14--05--24, NDCC; Foster v. Nelson, 206 N.W.2d 649 (N.D.1973); Wiederanders v. Wiederanders, 187 N.W.2d 74 (N.D.1971); Bryant v. Bryant, 102 N.W.2d 800 (N.D.1960).

This court has also repeatedly held that a trial court's findings as to alimony, support, and distribution of property are matters within the sound discretion of the trial court. Wiederanders v. Wiederanders, supra; Cosgriff v. Cosgriff, 126 N.W.2d 131 (N.D.1964); Sjol v. Sjol, 76 N.D. 336, 35 N.W.2d 797 (1949). Although Wiederanders, Cosgriff and Sjol speak in terms of abuse of discretion as the scope of review, it has been well established by this court that a review of the trial court findings in alimony, support, and distribution of property matters is limited to a determination of whether or not they are 'clearly erroneous' within the purview of Rule 52(a), N.D.R Civ.P. Larson v. Larson, 234 N.W.2d 861 (N.D.1975); Grant v. Grant, 226 N.W.2d 358 (N.D.1975); Hoster v. Hoster, 216 N.W.2d 698 (N.D.1974); Novlesky v. Novlesky, 206 N.W.2d 865 (N.D.1973); Ferguson v. Ferguson, 202 N.W.2d 760 (N.D.1972). 2

Rule 52(a) states in part:

'Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.'

In In re Estate of Elmer, 210 N.W.2d 815, 820 (N.D.1973), the term 'clearly erroneous' was interpreted as follows:

'A finding is 'clearly erroneous' only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525,...

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