Svetenko v. Svetenko, 9860

• Citation: 306 N.W.2d 607
• Decision Date: 28 May 1981
• Docket Number: No. 9860,9860
• Parties: Clementine SVETENKO, Plaintiff and Appellant, v. Edgar SVETENKO, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 607

306 N.W.2d 607

Clementine SVETENKO, Plaintiff and Appellant, v. Edgar SVETENKO, Defendant and Appellee.

Civ. No. 9860.

Supreme Court of North Dakota.

May 28, 1981.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for plaintiff and appellant; argued by James D. Geyer, Dickinson.

William Heth, Dickinson, for defendant and appellee.

ERICKSTAD, Chief Justice.

The appellant, Clementine Svetenko, appeals from the judgment entered by the District Court of Stark County granting the parties a divorce and dividing the property between Clementine and the appellee, Edgar Svetenko. Clementine asserts that the division of property was clearly erroneous. We reverse and remand.

Edgar and Clementine were married in 1959. Clementine had four children born during a prior marriage. One of the children was adopted by Edgar. All of the children are now of legal age. Clementine is 61 years old, has cataracts in both eyes and arthritic pains in her back. She is physically unable to continue to perform the ranch labor she did all during the marriage. She has an eighth-grade education. Edgar is 59 years old, has diabetes and high blood pressure but is otherwise in good health. He has an eleventh-grade education.

The parties agreed that they had irreconcilable differences and both requested and received a divorce from the other. That feature of the judgment is not contested by either party.

At the beginning of the marriage, Edgar owned approximately 400 acres of land and a homestead with improvements, and inherited about 400 more acres of land during the marriage. He also owned, at the time of the marriage, 80 head of purebred cattle and a complete line of farm machinery. Clementine brought $3,000, a 7-year-old automobile and household furniture into the marriage. She also inherited some property and money during the year of the divorce proceedings.

The parties successfully ranched and farmed, with Clementine mainly taking care of the cattle and Edgar mainly taking care of the grain farming. During the marriage, they acquired an additional 800 acres of land, 196 undivided mineral acres under that land, and made various improvements to the homestead including an addition to the house and construction of other buildings. The money Clementine brought to the marriage was not used to acquire any marital property but was held solely in her name in a savings account.

The parties had marital difficulties which culminated initially in a separation in which the court granted Clementine temporary possession, control and management of the ranch and ordered Clementine to pay Edgar $900 per month as temporary support as he was ordered off the ranch. Later, the court granted the parties a divorce and divided the property. It essentially awarded Edgar the property he brought into the marriage and that which he inherited during the marriage, and apparently attempted to divide the property the parties acquired during the marriage equally between the parties. In addition, Edgar was ordered to pay alimony in the sum of $350 per month to Clementine for ten years.

Clementine contends that she is entitled to sufficient property or alimony to enable her to maintain the standard of living she enjoyed during the marriage, and that the property division does not allow her to do so. She specifically raises the following issues:

1. Whether or not the division of property was clearly erroneous.

2. Whether or not the court's award of alimony is clearly erroneous.

3. Whether or not several of the court's property valuations were clearly erroneous.

Our standard of review has been set out in previous cases. Williams v. Williams, 302 N.W.2d 754, 756-57 (N.D.1981); Sanford v. Sanford, 301 N.W.2d 118 (N.D.1981). Simply stated, alimony and the property divisions are findings of fact to be made by the trier of fact and to be reviewed by this court to determine whether or not those findings of fact are clearly erroneous pursuant to Rule 52(a) of the North Dakota Rules of Civil Procedure.

Clementine asserts that the division of property and several of the property valuations were clearly erroneous. Specifically, the court divided the property and valued it as follows:

                                                      Edgar    Clementine
                                                    ---------  ----------
                800 Acres (prior-acquired)          $ 169,084       $ -0-
                621 Mineral Acres (prior-acquired)     97,650         -0-
                30 Mineral Acres (prior acquired)     unknown         -0-
                800 Acres 1/2 to each)                 81,260      81,260
                196 Mineral Acres (1/2 to each)        14,700      14,700
                Machinery                              66,870         -0-
                Improvements (homestead)               75,000         -0-
                Cattle (1/2 of proceeds to each)       14,720      14,720
                Mobile Home (1/2 to each)               6,250       6,250
                Hay & Grain (1/2 to each)               2,500       2,500
                Insurance Cash Value (1/2 to each)     10,000      10,000
                Bank Accounts (1/2 to each)             2,175       2,175
                Seed (1/2 to each)                        530         530
                                                    ---------  ----------
                     Totals                         $ 540,739    $132,135
                

In addition, the parties leased the entire 1,600 acres of the ranch for a term of three years and the court divided the proceeds of the lease by giving three-fourths to Edgar and one-fourth to Clementine. The payments were to be $18,240 on April 1, 1980 and 1981, and $14,400 on April 1, 1982.

The parties' cattle were sold earlier and part of the receipts was used to pay some of their debts with the remainder of the proceeds being split equally between them. This left debts of the parties of $39,934 arising out of the purchase of the 800 acres from Anton Svetenko and $106,000 apparently arising out of the purchase of other farm and ranch property. The latter debt is apparently owed the Federal Land Bank. The debt to Anton Svetenko was divided equally between the parties and the debt to the Federal Land Bank was made the sole responsibility of Edgar.

Clementine asserts that the court undervalued the minerals, machinery and improvements. The court, however, placed the same value upon the machinery as did the appraiser, whose deposition Clementine relied upon at trial to establish the values of the parties' property. It was admitted by counsel for Clementine that the value of the minerals was speculative.

Clementine called John Kemp as an expert on mineral values. He testified that the minerals underlying the parties' land would have a value of approximately $600 per acre. He testified that he had previously estimated the minerals to be worth $1,000 per acre, but since that time a dry hole had been drilled one mile south of the Svetenko property. Edgar testified that in 1978 minerals in an irrevocable trust in the same location as his were valued at $20 per acre. Edgar stated that this was low and he would not sell his minerals for this amount. There was also testimony that the bonuses paid for leasing minerals near the Svetenko's property had varied from $155 to $260 in the state oil and gas lease sale. There was also testimony that leases from the state generally leased for a greater bonus than from private interests. The trial court valued the minerals given to Edgar at $157.25 per acre and those which were split between the parties at $150 per acre.

Additionally the court valued the improvements on the homestead at $75,000, whereas the appraiser, utilized by Clementine through deposition, valued the improvements on the homestead at $125,396. The court gave no explanation for its valuation.

There is no requirement that the court place a value upon the individual items making up the net worth of the parties, Nastrom v. Nastrom, 284 N.W.2d 576, 586 (N.D.1979); but when the court does act to set such value, there should be evidence in the record supporting the value placed upon the property.

Edgar received the bulk of the minerals and all of the improvements. This distribution resulted in his receiving approximately 80 percent of the marital estate. If the appraisers values were used, Edgar's percentage of the estate would be even higher. In Gardebring v. Rizzo, 269 N.W.2d 104 (N.D.1978), we said:

"The rule in North Dakota as to the effect to be given expert testimony is clear. The credibility of expert witnesses, and the weight to be given their testimony, are matters to be determined by the trier of facts.... We have also said that the trier of fact is not required to accept undisputed testimony, even of experts.... These cases do not stand for the proposition, though, that the trier of fact can arbitrarily disregard the testimony of experts, or for that matter, the testimony of any witness." (Citations omitted.) 269 N.W.2d at 109.

In this case, the appraiser's value of $600 per acre was supported by his testimony that a tract in Section 18, Township 144 north, Range 96 west, which is adjacent to the Svetenko's land, was leased for $260 per acre for a five-year lease in the state oil and gas lease sale. He also testified that tracts in this area leased from $155 to $310 per acre and that the standard for the industry for placing a value on the mineral interest itself was about five times the lease amount or a ratio of five to one. On cross examination, Kemp affirmed that this ratio could be lower or higher.

He also testified that "wildcat" minerals had sold in the general area for $1,000 and more an acre, but no specific tracts were specified and it appears from his testimony that such sales were before the dry hole was drilled south of the Svetenko's land. Similarly, the appraiser's value of the improvements was supported by a cost less depreciation method and a value figured from the contributing value of the land. The appraisers lower figure of $125,396 is substantially above the $75,000 value placed upon the improvements by the trial court. Although all of the improvements were given to Edgar, apparently...