Duаne E. BUZICK, Plaintiff and Appellee, v. Marilyn J. BUZICK, Defendant and Appellant.
Civil No. 940336
Supreme Court of North Dakota.
Feb. 2, 1996
544 N.W.2d 114
Upon granting a divorce, the trial сourt is required to distribute the parties’ real and personal property as may seem just and proper. Section
In dividing the marital estate, the trial court awarded Steven and Kathrin an undivided one half interest, as tenants in common, in the farmstead and valued each interest at $30,000. We are left with a firm and definite conviction that the trial court‘s valuation of each parties’ interest in the farmstead at $30,000 is clearly erroneous. Unless and until Kathrin decides to live off the farmstead or not to operate the farm, she has the right to receive all rеnts and profits from it. The chief attribute of a tenancy in common is unity of possession by the joint owners, with each sharing a common right to possession of the entire interest and a separate сlaim to a fractional share of the property. Powell on Real Property, Vol. 4A, 1601(1). Generally, each tenant in common is equally entitled to the use, benefit, and possession of the common property. See Stevahn v. Meidinger, 79 N.D. 323, 57 N.W.2d 1 (N.D.1952). Here, the court has carved out a significant part of Steven‘s tenancy interest, without making any corresponding adjustment in the value of that interest, as comparеd to the value of Kathrin‘s interest. Consequently, we conclude the trial court‘s valuation is clearly erroneous.
Because the property distribution made by the trial court is based, in part, upon an erroneous valuation of the parties’ major marital asset, it is appropriate to remand to allow the trial court to make a redetermination of the property distribution, based upon a correct valuation. See Lippert v. Lippert, 353 N.W.2d 333 (N.D.1984). Accordingly, the judgment is reversed and the case is remanded for a redetermination of the property distribution.
VANDE WALLE, C.J., LEVINE and SANDSTROM, JJ., and WILLIAM M. BEEDE, Surrogate Judge, concur.
WILLIAM M. BEEDE, Surrogаte Judge, sitting in place of MESCHKE, J., disqualified.
Pamela J. Hermes (argued), of Vogel, Kelly, Knutson, Weir, Bye & Hunke, Ltd., Fargo, for plaintiff and appellee.
Craig M. Richie (argued), of Richie & Associates, Fargo, for defendant and appellant. Appearance by Marilyn J. Buzick.
Marilyn Buzick apрealed from a divorce judgment, asserting that the trial court erred in dividing the marital assets and failing to provide spousal support. We affirm.
Marilyn and Duane Buzick were married in 1989. Marilyn and her three children from prior relationships moved into Duane‘s house in Gardner, North Dakota. No children were born of the marriage. Duane brought this divorce action in August 1993. At the time of trial, Duane was 50 and Marilyn was 37.
The evidence at trial was conflicting. The trial court specifically found Marilyn was not a credible witness, and that Marilyn‘s continual lying to Duane during the marriage contributed to the marital difficulties.
In dividing the marital property, the court awarded Marilyn two vehicles, her jewelry, her chose in action for injuries she suffered in a traffic accident, the property she brought into the marriage, and a cash awаrd of $13,432. The court awarded Duane the remaining property, including the house and an interest in farm land Duane brought into the marriage. In essence, the trial court awarded to each party their рremarital property and equally divided the property acquired during the marriage, including the appreciation on Duane‘s premarital proper
Marilyn appealed from the judgmеnt and from a separate order denying her motion seeking payment of costs for a transcript on appeal. We reversed the order denying transcript costs and remanded for entry of an order directing Duane to pay an advance on Marilyn‘s cash award “to allow [Marilyn] to provide a transcript.” Buzick v. Buzick, 533 N.W.2d 676, 677 (N.D.1995). We held in abeyance the appeal from the judgment until a transcriрt was prepared and filed. The transcript has now been filed, the parties have submitted supplemental briefs, and the appeal from the divorce judgment is properly before us.
Marilyn assеrts the trial court should have awarded her the house in Gardner, or at least the use of the house until her youngest child graduated from high school, and should have awarded her spousal support. In support of her argument, Marilyn points to evidence and “facts” in the record which, she claims, support her theory of the case.
Marilyn‘s argument fails to recognize or acknowledge our limited sсope of review. The trial court‘s division of property and determination whether to award spousal support are findings of fact. See, e.g., Theis v. Theis, 534 N.W.2d 26, 28 (N.D.1995); Smith v. Smith, 534 N.W.2d 6, 12 (N.D.1995). We will not overturn a finding of fact unless it is clearly еrroneous. Rule
This limited scope of review recognizes that the trial court, having had the opportunity to observe and assess thе demeanor and credibility of the witnesses, is in a much better position to ascertain the true facts than an appellate court, which must rely on a cold record.1 Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 859 (N.D.1995); Catlin v. Catlin, 494 N.W.2d 581, 591 (N.D.1992). We will not reexamine findings of fact made by the trial court upon conflicting evidence, and a choice between two permissible views of the weight of the evidence is not clearly erroneous. Dalin v. Dalin, 512 N.W.2d 685, 688 (N.D.1994); Catlin, supra, 494 N.W.2d at 591; Davis v. Davis, 458 N.W.2d 309, 315 (N.D.1990). When reasonаble evidence in the record supports the findings, we will not retry the case to substitute findings we might have made for those of the trial court. Mahoney v. Mahoney, 538 N.W.2d 189, 193 (N.D.1995).
Marilyn directs us to parts of the record which support her versiоn of the “facts.” Although Marilyn does not expressly assert that the trial court‘s findings of fact are clearly erroneous, many of the “facts” she relies upon are directly contrary to the trial court‘s findings. Nor does Marilyn acknowledge those parts of the record which contradict her version and support the trial court‘s findings.
It would serve no purpose to discuss each of the various findings called into question by Marilyn‘s argument. Marilyn is, in effect, asking this court to reassess the credibility of the witnesses and retry the facts upon conflicting evidence. That is not the function of an appellate сourt. “The existence of any doubt as to whether the trial court or this Court is the ultimate trier of fact issues in non-jury cases is, we think, detrimental to the orderly administration of justice, impairs the confidence of litigants and the public in the decisions of the district courts, and multiplies the number of appeals in such cases.” Mothner v. Ozark Real Estate Co., 300 F.2d 617, 620 (8th Cir.1962),
The trial court expressly considered the Ruff-Fischer guidelines and explained the basis for its unequal property division. See Theis, supra, 534 N.W.2d at 27-28; van Oosting v. van Oosting, 521 N.W.2d 93, 95-96 (N.D.1994). The court relied upon the respective ages of the parties, the short duration of the marriage, and the origin of the property to support its decision to, in essence, award each party his or her premarital property and equally divide the property acquired during the marriage, including appreciation on Duane‘s premarital property. The record also supports the trial court‘s finding that spousal support is not warranted.
We have reviewed the record and we are not left with a definite and firm conviction that a mistake has been made. Accordingly, the trial court‘s findings of fact are not clearly erroneous.
We have considered the other issues raised by the parties and find them to be without merit. The judgment is affirmed. The parties shall bear their own costs and fees on appeal.
SANDSTROM and MESCHKE, JJ., and LEE A. CHRISTOFFERSON, District Judge, concur.
LEE A. CHRISTOFFERSON, District Judge, sitting in place of LEVINE, J., disqualified.
VANDE WALLE, Chief Justice, concurring in result.
Relying on my dissent in Buzick v. Buzick, 533 N.W.2d 676, 678 (N.D.1995), I concur in the result.