Gooselaw v. Gooselaw
320 N.W.2d 490
N.D.
1982
Check Treatment

*1 GOOSELAW, Donald W. Plaintiff Appellant,

and GOOSELAW, M. Defendant Appellee.

and

Civ. No. 10122.

Supreme of North Court Dakota.

May

George E. Kaldor, Duis and Steven Far- go, plaintiff appellant. and Pancratz, Kruger, Wold, Johnson, Yuill & Fargo, for defendant appellee; argued Yuill, William D. Fargo. ERICKSTAD, Chief Justice. Donald W. appeals Gooselaw judg- from a ment of divorce entered in the District Court of County. Cass He argues that the trial court’s property division, award of ali- life, mony for and award of attorney’s fees to Dolores M. Gooselaw are all clearly erro- neous. We affirm the award attorney’s fees. We reverse the trial court’s property award and remand for modification. trial,

At the time of the Donald was 48 years old and Dolores was years old. They were married years Sep- earlier on 9, 1958, Hunter, tember North Dakota. Three children were born marriage. *2 491 Arlene’s Beauty Shop minor, but there is no issue One child is a $10,000.00 Life insurance on policies appeal. custody over on having Donald’s life cash high Donald has a school education and surrender value of 542.27 $ Investment in apartment Navy. United After served with the States Fargo, in West ND complex 5,000.00 $ became discharge Navy, his he Federal and state income tax operated beauty salons un- hairdresser and ($ 7,000.00) liability til In he started Mr. Don’s 1970 State TOTAL $78,792.27 College Beauty Fargo. of in high graduate

Dolores is a school and has argument Donald’s first is that the trial college of training. a few months business erroneously valued Mr. Don’s State a service representative She worked as for College Beauty, of an in investment an telephone company prior in California to apartment complex in Fargo, West and Ar- their marriage. During marriage she Beauty Shop. lene’s bookkeeper worked as a for all of the cou- The trial court’s ple’s valuation and divi business ventures. of property sion is finding treated as a of began Donald marriage and Dolores their fact and is by 52(a), thus fortified Rule divorce, with property. Upon little how- Therefore, N.D.R.Civ.P. we set will aside ever, they had accumulated substantial findings only these if we determine they property. erroneous. A of finding fact is court, using The trial the Ruff-Fischer deemed erroneous when we are left Fischer, guidelines, v. Fischer with definite and firm conviction that a Ruff, (N.D.1966); 775, Ruff N.D. mistake Bender, has been made. Bender (1952), 52 N.W.2d 107 valued and divided 695, 276 N.W.2d 697 (N.D.1979); Hauge owned Donald berg v. Haugeberg, 258 N.W.2d as follows: (N.D.1977). review Our of the trial court’s in record this case has left us with the firm Awarded to Dolores conviction that a mistake has been made as Home located at 2818 2nd to the value placed on Mr. Fargo, Street valued North, mortgage at College less Beauty $70,000.00, Beauty Arlene’s home less $13,272.31, Shop. We are unable to any find evidence loan improvement support the value attached net for a value of $4,711.85, not, two businesses. We have how fixtures, household Furniture, goods and in said appliances ever, disturbed the trial finding court’s re home 8,000.00 $ garding the value of Donald’s interest in an automobile, Chrysler apartment complex Fargo, in West there valued less at $1,000.00 encumbrance of for a $441.00, being sufficient evidence in the record to net value of 559.00 $ $5,000 support a finding fact, value. 1973Pinto, used primarily by Donald himself testified that the market gift from Dolores’ children, apartment his interest in the com at parents, $300.00, but not considered $5,000. plex was distribution. The trial court valued Mr. Don’s State One half interest tenant in common in Fashion Villa College $50,000. only at 102 located South evidence in regarding the record the value Fargo Drive in University college testimony was Donald’s TOTAL $26,000 $7,000 was worth owed for Awarded to Donald $19,000. equipment, for a audio net value of automobile Oldsmobile 250.00 $ The school is in a building located rented One-half interest as tenant in common in Fashion Villa Fargo downtown which the record discloses at 102 located South of property questionable consists salable Fargo Drive University or marketable value. Donald testified that College Don’s State cussed, beauty colleges typi- market value of believe more be a cally multiplying determined accurate evaluation of that property. average number of students en- times We next must determine or whether The testimony the school. indi- rolled the trial finding valuing Arlene’s that Don’s of Beauty cates State Beauty Shop average approximate an enrollment of had The testimony regarding Arlene’s Additionally, students. *3 testified $3,000, $10,000 Shop reflects a value of not equipment college the owned valued at that Again, ascribed to it the trial court. $6,000. Using Donald’s uncontroverted tes- only the presented evidence other than that college the timony, appears the net value of indicating a value of between be as follows: to $3,000 $4,000 was the evidence the showing income tax returns the net shops through Value enrollment $6,000 income to be From annually. about X 20 $1,000 students 6.000.00 Equipment this fact the court valued the business Gross Value $10,000 for purposes. distribution That Less: finding supported by is not the evidence. for audio 7.000.00 Debt equipment Our conclusion that the trial court’s find- Value $19.000.00 Net ing is clearly erroneous is based on three evidence, being we There no other ascribe a First, factors. virtually the business owns of Don’s College value to State property. no It is located in the rent- same Beauty. of ed building College as Mr. Don’s State argued Dolores the trial that court’s find- Beauty, has three chairs other and little supported is ing by the income tax returns equipment. Secondly, the evidence shows into received evidence. income tax re- that dependent the is business on the col- couple’s turns were establish the offered to lege supplies. Without supplies income and source of income. The returns questionable is whether or not it would be did not disclose evidence of the other value profitable. Thirdly, the depénd- business is argues the business. Dolores that Fraase ent upon a long-time clientele. That clien- Fraase, (N.D.1982), N.W.2d tele, although large, up not has been built Fraase, analogous is to In this case. we many through over years diligent the ef- finding affirmed the trial court’s that law forts beauty operators of the employed by office had an increase in value from 1970 to shop. the operator, upon The senior whom $35,000 of at for purposes least dependent, the business greatly nearing is is property a divorce. distribution in age. Accordingly, retirement we find the that for the argues proposi- Fraase stands trial clearly court’s valuation erroneous. ability tion that the income-producing only Consistent testimony with the of the principal may in a service business value Beauty Shop, of Arlene’s we attach valuing used in That is that business. $3,000 value of that business. holding In Fraase Fraase. we held that court’s conclusion that Because of our determination equipment, Fraase’s interest office regarding in the court’s the values furniture, fixtures, and accounts of Mr. College receivable Don’s State Shop erroneous, of the law office of accumulated Arlene’s years modify over was not erroneous. In it is necessary property distri- light evidence, we conclude that the bution. Our reduction of the placed values finding Shop trial court’s that Mr. Don’s on the college State and Arlene’s College of Beauty value of the trial dis- concomitantly had a reduces court’s As previously dis- tribution to Donald We there- placed 1. Reduction of on Mr. Valuation Trial Court’s Beauty: 19,000 Our Valuation Reduction modify fore the trial ing distri- of fact stating that her monthly living by awarding bution to Donald the entire $1,200. costs were about The trial court Fashion Villa located at 102 South then indicated its belief that she should be University Drive in Fargo. The value of able get job paying at least $600 $40,000. The trial court monthly. awarded a proper- one-half interest in that we Recently have treated alimony aas ty party. Through to each this redistrib- method of Bingert rehabilitation. ution, parties each receive equivalent Bingert, 464, 469 (N.D.1976), property, amounts of as follows: said: “We believe that trend modern Awarded to Dolores domestic-relations is to law treat located at 2818 2nd Home rehabilitating as a method for the party Fargo, North, Street mortgage $70,000.00, disadvantaged by the divorce. This less home $13,272.31, seems to' be the basis of the Uniform loan of improvement *4 Act, Marriage adopted Divorce in at for a net value of $4,711.85 $52,015.84 household States, Furniture, fixtures, including least four not North Da- goods and in said appliances kota.” 8,000.00 home $ We have philosophy. since reaffirmed that 1977 automobile, Chrysler Svetenko, (N.D. at Svetenko v. 607 valued N.W.2d a encumbrance of for $441.00, 1981); Williams, 302 Williams v. net value of 559.00 $ (N.D. 1981); Carr, v. Carr 300 N.W.2d 40 Pinto, used primarily by (N.D.1980). gift children, Dolores’ $300.00, parents, it Although has been contended the but not considered trial alimony court awarded the a main- distribution. objective, tenance we cannot conclude that TOTAL award was erroneous from Awarded Donald objective. light rehabilitative Do- 250.00 1973Oldsmobile automobile $ Fashion Villa located property education, age, lores’ limited experi- work South Drive University mainly ence family-owned within the busi- Fargo ness, job generally, among and the market factors, 3,000.00 other it is not unreasonable that the Arlene’s Shop $ on Life insurance policies concluded, may court have although not having Donald’s life cash articulated, expressly that rehabilitation be- surrender value of 542.27 $ yond present earning her capacity is not Investment in apartment Fargo, ND 5,000.00 West complex $ likely. think capa- Donald will be more .We income Federal and state tax making payment indefinitely ble this ($ 7,000.00) liability adjustment with prop- in the division of TOTAL erty, inasmuch as will have he now all of turn We next to the issue of wheth the income-producing property. er not the award alimony or trial court’s Let us to the turn trial court’s for life was erroneous. The trial attorney’s fees to award Do alimony court awarded to Dolores $600 month, determining lores. In the amount of attor per her or re payable until death marriage. ney’s paid by opposing fees be party, apparently court should consider the

The trial court was by each as a party view that so owned result of the should awarded division, income, spouse may that the the relative present continue her liquid or style living. That is evident its find- whether the of fixed placed Trial Court’s Valuation on Arlene’s Reduction of 3,000 Our Valuation Shop: Reduction 7,000 $

Total Reduction us assets, not the actions of to encroach and whether or on court even functions case, though, increased the time in a unreasonably particular appear parties may Nastrom, the case. to someone has not spent given on Nastrom who it much case, (N.D.1979). thought In this judicial N.W.2d 576 to be a waste of effort virtually all the assets received remand judge perform so that a trial can fixed assets. We believe the trial were that function. fact that took into account the If the trial court that heard the evidence along beauty school with other

received in this case had the findings made of fact Dolores, income-producing property. on the court, now made hand, part home and a received the other would not be I do in Fashion Villa. latter inter- interest say justice not being done. assigned have to Donald. Addition- est we took into ally, properly account earning that Dolores had limited

the fact

power. will an

We not disturb award of

attorney’s appeal fees on unless there has

been an abuse of discretion. Haberstroh v.

Haberstroh, (N.D.1977); 258 N.W.2d Fischer, (N.D. 139 N.W.2d 845 Fischer BANK, corpora- MANDAN SECURITY 1966). We there has been tion, conclude that no Appellee, Plaintiff and the award of abuse discretion as to attor *5 ney’s fees. HEINSOHN, Engel, Harlan Gerald Mi- opinion, in this For the reasons stated chael Heinsohn and Kenneth G. Aus- part, part, affirm in reverse in and remand tin, Appellants. Defendants and pursuant opinion. to this for modification BANK, corpora MANDAN SECURITY WALLE, VANDE and PAUL- SAND tion, Appellee, Plaintiff and SON, JJ., concur. PEDERSON, Justice, concurring part HEINSOHN, Engel, Harlan Gerald Mi dissenting part. and Austin, chael and Heinsohn Kenneth G. agree fully of the findings I that some individually doing business as Land supported are fact substantial evidence co, partnership, Ap Defendants and 52(a), some of them not. Rule pellants. NDRCivP, requires all of fact 10108, Civ. Nos. 10115. supported by substantive evidence. The judicial system Supreme best will work if trial courts Court of North Dakota. appellate do trial functions and courts June appellate Accordingly, do functions. I dis- part sent from that Justice of Chief Erick- opinion usurps

stad’s wherein this court responsibility by making find-

ings fact.

When I specially concurred Mansukha Pailing,

ni v. (N.D.1982), N.W.2d 748 14-05-25, NDCC, pointed

I out that ap §

pears to be an invitation domestic rela

tions cases to treat principle alone,

court. As a matter of I think that lawyers

would would not want