Wolfe v. Wolfe, 11050

• Decision Date: 23 July 1986
• Docket Number: No. 11050,11050
• Citation: 391 N.W.2d 617
• Parties: Agnes WOLFE, Plaintiff and Appellee, v. Edward V. WOLFE, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 617

391 N.W.2d 617

Agnes WOLFE, Plaintiff and Appellee, v. Edward V. WOLFE, Defendant and Appellant.

Civ. No. 11050.

Supreme Court of North Dakota.

July 23, 1986.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for plaintiff and appellee; argued by Paul A. Kloster.

Greenwood, Greenwood & Greenwood, Dickinson, for defendant and appellant; argued by Brenda L. Selinger.

ERICKSTAD, Chief Justice.

Edward V. Wolfe appeals from a judgment granting Agnes Wolfe a divorce from him. He also appeals from an order which denied his request for relief from the judgment under Rule 60(b)(vi), N.D.R.Civ.P. We affirm and remand for consideration of Agnes' request for attorney fees on appeal.

Edward and Agnes were married in 1953. At the time of these proceedings, Edward was 52 years old and was employed by the Burlington Northern Railroad Company. Agnes was 49 years old and had not been employed outside of the home for several years. Their three children have reached the age of majority. During early June 1985, Edward and Agnes entered into an "Agreement for Spousal Support, Property Settlement, and Settlement" which was drafted by Agnes' attorney. Edward was not represented by counsel at the time.

The settlement agreement's provision on the division of marital property awarded to Agnes her clothing and personal effects; the household goods and furnishings; the home of the parties; a Lincoln automobile; certain mineral interests; a garden tractor; an Airstream travel trailer; and all future "Tier II" railroad retirement benefits. The agreement also provided that Edward would pay Agnes $1,400 per month "[a]s and for additional property division and by way of spousal support...." The agreement awarded Edward his clothing and personal effects; a Jeep Wagoneer; all future "Tier I" railroad retirement benefits; and all other property of the parties except that awarded to Agnes.

The agreement further provided that Edward would pay all existing debts of the parties. Edward's other obligations under the agreement included payments on three mortgages against the home; payments remaining on the automobiles, the garden tractor, and the travel trailer; unpaid real estate taxes; the cost of new dentures for Agnes; and the maintenance of certain life insurance policies. The agreement also provided that Edward would pay $150 per month to the parties' son until he finished college, and that he would pay Agnes $1,000 for attorney fees incurred in the divorce proceeding. The agreement specified that it "shall constitute the full and final division of the marital property accumulated by the parties during the course of this marriage" and authorized Agnes to proceed with the divorce as a default matter and to seek to have the agreement incorporated in the divorce judgment.

Prior to the divorce proceeding, Edward executed a handwritten document, which he had had notarized, stating that the Jeep Wagoneer, specified in the agreement to be his property, should be included in Agnes' property.

The divorce hearing was held on June 6, 1985. Edward made no appearance. The district court granted Agnes the divorce and determined that the parties' agreement was "fair and equitable." The court incorporated the agreement, as amended by Edward, into the divorce judgment.

On July 3, 1985, Agnes brought a motion for an order to show cause why Edward should not be held in contempt for failing to comply with the terms and conditions of the divorce judgment. Agnes alleged that Edward had failed to pay the $1,400 per month designated in the agreement as additional property division and spousal support, that he had failed to pay the $1,000 in attorney fees, and that he had failed to make the payments due on loans secured by mortgages on the home and two automobiles. Edward, now represented by counsel, responded with a "Motion to Amend Judgment" seeking an order, pursuant to Rule 60(b)(vi), N.D.R.Civ.P. amending the divorce judgment "due to the impossibility of compliance." Edward's motion proposed a total revamping of the settlement agreement and divorce judgment whereby all of the real and personal property of the parties would be sold and the proceeds divided equally after satisfaction of the mortgages and secured loans. Edward also proposed that, as additional property division and spousal support, he would pay Agnes "one-half of his net income received." The district court denied Edward's motion concluding that he had not shown sufficient grounds for relief under Rule 60(b)(vi), N.D.R.Civ.P., and found him in civil contempt of court. Edward thereafter filed this appeal both from the divorce judgment and from the order of civil contempt. ¹

In his appeal from the divorce judgment, Edward asserts that the district court erred in accepting the parties' settlement agreement and finding that it was "fair and equitable."

The public policy of this state favors the prompt and peaceful resolution of disputes in divorce matters. See Fleck v. Fleck, 337 N.W.2d 786, 792 (N.D.1983); Peterson v. Peterson, 313 N.W.2d 743, 745 (N.D.1981); Galloway v. Galloway, 281 N.W.2d 804, 807 (N.D.1979). In recognition of this public policy and the right of a husband and wife to contract with each other, we held in Peterson, supra, that a court's authority to make a just and equitable distribution of property under Sec. 14-05-24, N.D.C.C., does not allow the court to rewrite a valid written separation agreement absent statutory grounds for rescission under Chapter 9-09, N.D.C.C. Thus, to the extent that competent parties have voluntarily stipulated to a particular disposition of their marital property, a court ordinarily should not decree a distribution of property that is inconsistent with the parties' contract. Peterson, supra, 313 N.W.2d at 744.

During the divorce hearing, Agnes testified that while they were discussing the possibility of a divorce, Edward informed her that if she did not hurry he would retain his own lawyer to complete the divorce. She testified that Edward requested that she have the necessary papers drawn up to accomplish the divorce. Edward received the settlement agreement three days before the hearing, and he returned it to Agnes signed and notarized on the morning of the hearing. In the document, Edward acknowledged that he had ample opportunity to consult legal counsel, that he possessed adequate information on all aspects of the agreement, that he entered into it freely and voluntarily, and that no undue influence or duress had been exercised upon him. Edward also delivered to Agnes deeds, and a bill of sale, all of which were signed and notarized. Edward gave to Agnes his handwritten and notarized amendment to the settlement agreement which stated "On page 5. Item (ii). 1979 One Jeep Wagoneer bearing serial no. J9A15NN094206. To be included in on page 2 under item (A.), To Wife." Edward had also given Agnes a handwritten note, received in evidence, which stated:

"If any Bills are paid by Agnes which are mine including the $1,000 to the Lawyer I will sue her for destroying my credibility as a wage earner and Defameing (sic) my character also if one of my checks is touched in any way there will only be one more."

Evidence was introduced which established that Edward's 1984 annual salary was more than $66,500. Although Edward's salary varied because of the nature of his job, there was nothing to indicate that his salary would "be any different in any significant way than in 1984...." The record discloses that Agnes required $1,400 to meet her fixed monthly expenses. Although Edward's monthly obligations on the home mortgages and other loans totalled approximately $2,300, Agnes expressed a willingness to sell the tractor trailer and one of the vehicles to satisfy $1,100 of that amount. The evidence available to the trial court at the time of the divorce hearing indicated an ability on Edward's part to perform according to the terms of the settlement agreement.

Edward asserts that the trial court had a "duty" to conduct a further investigation of the terms of the agreement and other circumstances to determine if the agreement was objectively "fair and equitable." We rejected a somewhat similar argument in Fleck, supra, 337 N.W.2d at 791-792. In Fleck the appellant contended that the trial court, which had ordered that the terms of a property settlement agreement be incorporated in the divorce judgment, erred in failing to make any findings of fact pertaining to the fault or equities of the parties, or to the values of the marital property. We stated:

"The problem with ... [appellant's] argument is that the divorce was not contested and there were no conflicting versions of the facts in regard to the division of property. The parties had reached an agreement on all of the matters pertaining to the division of their property, and thus there was no reason for the court to hear evidence of fault or of the values of the property. To adopt ... [appellant's] reasoning would result in rendering nugatory all attempts at amicable out-of-court agreements concerning division of property in divorce cases." [Footnotes omitted.]

Fleck, supra. See also Peterson, supra, 313 N.W.2d at 745 n. 5.

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