Volk v. Volk, 11228

• Decision Date: 16 April 1987
• Docket Number: No. 11228,11228
• Citation: 404 N.W.2d 495
• Parties: Aleta Kaye VOLK, Plaintiff and Appellee, v. Pius VOLK, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 495

404 N.W.2d 495

Aleta Kaye VOLK, Plaintiff and Appellee, v. Pius VOLK, Defendant and Appellant.

Civ. No. 11228.

Supreme Court of North Dakota.

April 16, 1987.

Zuger & Bucklin, Bismarck, for plaintiff and appellee; argued by Robert V. Bolinske.

Chapman & Chapman, Bismarck, for defendant and appellant; argued by Daniel J. Chapman.

GIERKE, Justice.

This is an appeal by Pius Volk (Pius) from a judgment entered in district court in which the court distributed one-half of the marital property and one-half of the marital debt to each party. This 50-50 split distribution follows our remand of the original judgment in which Pius was awarded sixty-nine percent (69%) of the marital estate and Aleta Volk (Aleta) was awarded thirty-one percent (31%). Pius contends that on remand the district court failed to follow the directive of this Court. We agree.

In the original judgment, the district court valued the Volks' marital estate at $834,817.00 and awarded Aleta $199,757.68 in property and cash, as well as $1,000 per month for ten years (present value $58,453.20), for a total of slightly over $258,000. See, Volk v. Volk, 376 N.W.2d 16, 17 (N.D.1985) (hereinafter referred to as Volk I.) Pius was awarded the remainder of the estate, some $576,000. Volk I at 17. Thus, the percentage split of the marital estate between the parties was sixty-nine percent (69%) to Pius and thirty-one percent (31%) to Aleta. Volk I at 17.

Contrary to what is asserted no fewer than five times in Justice Meschke's dissenting opinion, this Court did not in Volk I determine or state that the Ruff-Fischer guidelines "favor neither party." An accurate reading of the opinion in Volk I will reveal that we determined that, "most of the [Ruff-Fischer ] guidelines would seem to favor neither party," (emphasis added), adding further that, "[i]t appears that the trial court's rationale is based primarily on the conduct of the parties during the marriage...." Volk I at 18.

By statute, the district court is required to make an "equitable" distribution of the real and personal property of the parties. Section 14-05-24, N.D.C.C. This distribution need not be equal to be equitable. Anderson v. Anderson, 390 N.W.2d 554, 556 (N.D.1986). When making this equitable distribution of the marital estate, the court is directed to consider a number of factors which have come to be known as the Ruff-Fischer guidelines. ¹ The determination of what constitutes an equitable distribution lies within the discretion of the district court and is dependent upon the facts and circumstances of each case. Nastrom v. Nastrom, 284 N.W.2d 576, 580 (N.D.1979). However, when a substantial inequality in the property division exists, that disparity must be explained. Anderson, supra.

Accordingly, in Volk I the district court properly considered the conduct of the parties in making its distribution of the marital estate. Nevertheless, we remanded the matter for further proceedings, giving the district court the option to, "... either make more specific findings of fact in order to justify this disparity or reexamine the distribution as originally made." Volk I at 18. (Emphasis added). It does not appear that the district court on remand exercised either of these options. ²

In the original marriage dissolution proceeding, the district court, in its discretion, determined that the facts and circumstances of this case were such that an equitable distribution of the Volks' marital estate was achieved by granting thirty-one percent (31%) of the property to Aleta and the remaining sixty-nine (69%) to Pius.

In support of its distribution, the trial court found that, "[n]early all of the property acquired during the marriage came as the result of Pius' work effort." In Volk I, we held that this rather general finding, combined with the evidence in the record of Aleta's contributions both at home and outside of the home, led us to the conclusion that the district court's findings of fact submitted for our review did not support the disparity in the original property award. Had the trial court's determination that "nearly all the property acquired during the marriage came as the result of Pius' work effort" been substantiated by more specific findings, the disparity in the division of the property might well have been appropriate.

It is important to note, especially in light of the trial court's response to our decision in Volk I, that this Court did not determine that the trial court's findings in the original judgment were clearly erroneous. Had we taken this viewpoint, we could have ordered a redistribution of the marital property. We declined to do so even though it was strongly suggested in the dissent of Justice Levine. See, Volk I at 19 (Levine, J., concurring and dissenting).

Instead, we remanded the case with instructions that the district court make more specific findings of fact in support of the inequality presented by its distribution. Volk I at 18. Alternatively, if the district court could not justify the disparity in its division of the Volks' marital estate, we ordered further proceedings permitting the court to reexamine the distribution as originally made. Volk I at 18.

Unfortunately, the district court apparently misinterpreted our directive. Without making any additional findings of fact and without further consideration of the Ruff-Fischer guidelines, the district court amended its property distribution from what it originally considered an equitable one (69% to Pius, 31% to Aleta) to an equal one. This resulted in a change in the amount of approximately $160,000.00 in the respective awards to each party. While we do not require that the Ruff-Fischer guidelines be specifically enumerated by the court to support its property distribution [ see, Routledge v. Routledge, 377 N.W.2d 542, 545 n. 1 (N.D.1985) ], certainly where there is such a great inconsistency between two separate property divisions in the same case, the district court should set forth some reasonable basis for its latter decision. See, Rule 52(a), N.D.R.Civ.P. ("In all actions tried upon the facts without a jury ... the court shall find the facts specially ... and direct the entry of the appropriate judgment; ...") (Emphasis added). In the instant case, it is inconsistent for the district court to inexplicably amend its distribution of the marital estate to one of equality when it had originally determined that a 69--31% split of the property was the equitable one.

We do not ordinarily act on division of property. But see, Anderson v. Anderson, 390 N.W.2d 554 (N.D.1986); Weir v. Weir, 374 N.W.2d 858 (N.D.1985); and Sanford v. Sanford, 301 N.W.2d 118 (N.D.1981). However, due to the length and nature of these proceedings and the need to bring an end to this litigation, in the interest of judicial economy we will redetermine the property division. Contrary to the assertion presented in the dissent, our redetermination of the Volks' marital property is no more new or novel than that performed by this Court in Anderson, supra, at 556.

Based on our review of the entire record in this case under the provisions of the Ruff-Fischer guidelines, we find substantial evidence to support an unequal distribution of property. While many of the factors favor neither party, our determination of the distribution of the marital property turns upon the conduct of the parties during their marriage.

It is undisputed by the testimony of Pius, the Volks' two daughters, and by Aleta herself that the break-up of this marriage was caused by Aleta's desire to spend her time with non-family members. Aleta alleged that Pius cared only for money and did not want to participate in Aleta's social life outside of their home. Aleta left the Volk home in January 1982 and did not return. It is undisputed that Pius did not want to be divorced and even up to the time of the trial let it be known that he wanted to remain married to Aleta.

Similarly, both parties worked outside of the home throughout most of the marriage. We have recognized that a traditional homemaker's contributions arising from child care and home care are an asset to the enterprise of marriage and should be recognized in a property distribution upon dissolution of that marriage. Briese v. Briese, 325 N.W.2d 245, 247 (N.D.1982). However, in the instant case it appears that while Aleta worked throughout the marriage, Pius held down two full-time jobs for most of the marriage, as well as collecting $570.00 per month for an injury he received in the Korean War. Similarly, it is clear from the record that many of the "traditional" management responsibilities for the home and children were borne by Pius during his marriage to Aleta. Pius performed many of the household chores throughout his marriage to Aleta, was a substantial caretaker of the parties' two children, and has been especially sensitive to the needs of the parties' epileptic daughter, providing her with a home and care. Contrast this conduct with that of Aleta who, according to the testimony of the Volks' other daughter, Peggy, charged her rent to live in their home upon graduation from high school.

The assets of the marriage were accumulated mostly through Pius' work ethic. While providing care for his home and children and holding down two jobs, Pius accumulated property and made investments increasing the value of the property many-fold. Pius worked full-time for Montana-Dakota Utilities, but also operated a farm and invested in land and condominiums, thereby increasing the assets of the marital estate while Aleta depleted the monies earned from her employment and money placed in a joint account by Pius for household use and family expenses. Aleta had a difficult time supporting herself, tended to overspend her income, and during the parties' separation required financial assistance from Pius to maintain her standard of living. Importantly, Aleta took no interest in the financial aspects of...