Lead Opinion
Mаrilyn Buzick appealed from a divorce judgment, asserting that the trial court erred in dividing the marital assets and failing to providе 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 timе of trial, Duane was 50 and Marilyn was 37.
The evidence at trial was conflicting. The trial court specifically found Marilyn was not а 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 accidеnt, the property she brought into the marriage, and a cash award of $13,432. The court awarded Duane the remaining proрerty, including the house and an interest in farm land Duane brought into the marriage. In essence, the trial court awarded to each party their premarital property and equally divided the property acquired during the marriage, including the
Marilyn appealed from the judgment and from a separate order denying her motion seeking payment of costs for a transсript on appeal. We reversed the order denying transcript costs and remanded for entry of an order directing Duаne to pay an advance on Marilyn’s cash award “to allow [Marilyn] to provide a transcript.” Buzick v. Buzick,
Marilyn asserts 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 evidenсe and “facts” in the record which, she claims, support her theory of the case.
Marilyn’s argument fails to recognize оr acknowledge our limited scope 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,
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 appеllate court, which must rely on a cold record.
Marilyn directs us to parts of the record which support her version 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 reliеs upon are directly contrary to the trial court’s findings. Nor does Marilyn acknowledge those parts of the record whiсh contradict her version and support the trial court’s findings.
It would serve no purpose to discuss each of the various findings сalled into question by Marilyn’s argument. Marilyn is, in effect, asking this court to reassess the credibility of the witnesses and retry the facts upоn conflicting evidence. That is not the function of an appellate court. ‘“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 justicе, impairs the confidence of litigants and the public in the decisions of the district courts, and multiplies the number of appеals in such cases.’ ” Mothner v. Ozark Real
The trial court expressly considered the Ruff-Fiseher guidelines and explained the bаsis for its unequal property division. See Theis, supra,
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.
Notes
. Even when there is no difference between the original evidence and the record, as when a trial court draws inferences from undisputed facts or from documentary еvidence, Rule 52(a) still applies. That application was made clear by the 1994 amendment to our rule, which added thе words "whether based on oral or documentary evidence." Rule 52(a), N.D.R.Civ.P. ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous.. ..”) See 9 A Charles Alan Wright & Authur R. Miller, Federal Practice and Procedure: Civil 2d § 2587 (1995).
Concurrence Opinion
concurring in result.
Relying on my dissent in Buzick v. Buzick,