*1 A argument unpersuasive. Hagstrom’s shows suspension the order
review of the order succinctly states driv- Hagstrom’s is an order
suspension aof of the accumulation because
er’s license states points and further thirteen
total of required to surrender Hagstrom License to the Drivers' license
his driver’s
Division. of sus the second order
Although violation another distinct
pension for statutes, motor vehicle
Hagstrom of the subsequent occurred at a violation
which definitive, invali
date, it does not more Hagstrom suspension to order of
date the suspen The order of May 1978.
dated self-explanatory.
sion is opinion, stated reasons
For Burleigh County Court of
judgment of is affirmed.
Increased Jurisdiction PEDERSON, J.,
ERICKSTAD, C. SAND, JJ., concur. WALLE
VANDE MATTIS, Kay Plaintiff Appellant, MATTIS,
Eugene Defendant E. Appellee.
Civ. No. 9480. of North Dakota.
Supreme Court 8, 1979.
Jan.
Rehearing Denied Feb.
Mackoff, Kellogg, Kloster, Kirby & Dic- kinson, for plaintiff appellant; Schnell, Gordon W. Dickinson. Jaynes, Jerome L. Hettinger, for defend- ant appellee.
SAND, Justice.
Following a marriage slightly over two years, to this action sought and granted a divorce in Adams County grоunds district court on of irreconcilable differences. Pursuant order, the court’s made a division of par- personal possessions ties’ and household items. This division is not challenged on appeal. case, The issue in however, arises over the distribution of certain other major assets and liabilities of parties. Appellant contends the trial court made an unequal distribution of those assets аnd that the evidence is insufficient support unequal such an distribution. We affirm. remaining Kay and Donna contract for Eugene E. Mattis deed [Gene] owing 22 October was time were married on still at the trial. Five Mattis [Donna] of their thousand dollars worth of During course assets owned Dakota, Hettinger, used, North they were also resided part-time and worked together farmed used where Gene her automobile as a emрloyed trade-in, and Donna was carpenter, a new automobile for *3 parties Both had county house, lots, health nurse. her. Along a with the automo- and chil- previously bile, both had married been well as personal as and household marriages. No previous items, those dren from parties acquired the the following marriage to this and were born children during marriage: assets the daughter resided youngest Dоnna’s 5,112 Machinery $ permanent basis dur- on a parties with the 6,105 Stored wheat marriage. ing period' the of their marriage parties the the Although during n $3,000 paid on promissory by the note made marriage Donna At time of the the $27,067 prior marriage; Gene the owned, personal posses- her lia- addition to notes, in the promissory bilities form of following goods, household the sions and contracts, sales conditionаl and loans were assets: during period incurred the same in addition 1,000 $ Cash $10,000 to the the due on contract deed. 65,248 and other investments Stocks developed Differences between the par- - (the of this value Automobile shortly ties after marriage the which Donna at the time used automobile marriage by not testified were caused to some extent of the the available.) drinking and gambling habits Gene. Following аttempts unsuccessful of both time, the owned fol- At the same Gene differences, parties to mend their Donna personal his lowing assets addition to on complaint August filed a divorce goods: and possessions household 1,451 After bench held on 1 trial November $ Cash parties granted -96,000 the were a divorce on Land 15,872 grounds of irreconcilable differences. The Machinery and tools 15,151 court took date under advisement wheat Stored parties’ the division of property the addition, had liabilities the In Gene personal them to lists of the ordered submit $6,000 note. promissory amount of by each prior and household owned marriage by the cash owned After the marriage, to the as well as a list of the in a appears placed to have been parties the personal acquired items dur- and housеhold living checking account used joint ing marriage. the farming expenses. Both con- 1978, a January On 18 was joint to the account their income tributed person- the awarding party entered to each marriage, although the during maintained possessions al items and household owned the contributions as amount of the exact by prior marriage. The party court expendi- source and amount well as the personal also a division of items of is somewhat in conflict. party tures each possessions goods acquired and household however, indicate, The does record Those parties during marriage. the divi- carpenter only part-time as Gene worked challenged sions not on appeal. are during years the and that the farm income marriage average. below was Dividing major parties, the assets of the the court Donna ordered that receive and Donna During marriage, the Gene the and investments owned stocks she from Gene’s a house and two lots purchased marriage which still held the price the real The parents. as well the automobile that was $10,000 parties, $20,000 was on which assets purchased she made from the assets payment down was was receive from marriage. marriage. Donna prior to the The held Donna cash she owned to the Donna Gene the distribution of proper- living ex- marriage which was used ty improper. support In argu- her $10,000, plus inter- penses in addition to the ment she claimed only major that the items est, paid from Donna’s invest- of property acquired by during payment ments for the down house. their were the house and lots in land, Gene was awarded the farm addition to the farm machinery, but wheat, and the stored equipment, farm trial court’s award in effect restored to addition, well as the house and lots. In each party each had outstanding assume the liabili- Gene was to gave to Gene all prop- $10,000 remaining including ties erty during accumulated ex- contract for deed. cept for a few personal items of and house- asserts as the issue on goods. hold major inequi- the division of the assets was *4 specific finding No of fact was by made table. the trial court as to the value of the proper- represented by We note Donna was awarded, ty parties, the fault of the or the appeal on different than she was at counsel basis for its distribution. Donna contends has, however, trial. This court stated in specific that because findings of fact wеre Rummel, v. Rummel 230, 265 N.W.2d 232 not on these matters this court is not (N.D.1978): confronted “with the usual situation of re- . in the “. . absence of unusual viewing whether or not findings are circumstances, appeal new counsel on is ‘clearly erroneous’ purview within the of limited to the same issues that coun- 52(a) Rule of the North Dakota Rules of sel would have been able to raise. Mere- Civil goes Procedure.” Donna then on to ly becоming a successor to counsel say there “are no material questions fact give right not him the does to raise issues here which need to be settled such find- appeal on which counsel not could ings of fact in Supreme order for the Court positions have raised. The issues and the to know whether an equitable property di- respective parties of the remain the same.. “ vision has been mаde.” ‘It is not our function to seek out error, given which the trial court was not persuaded We are not by her rea opportunity rectify, or to remake soning. Our review of fact matters is in review, the record for or to allow second accordance with the “clearly erroneous” Waletzko v. guesses strategy.’ on trial rule set 52(a), forth in Rule NDRCivP. We Herdegen, (N.D. 226 N.W.2d 653 adequate have reason to beliеve that Conley, Welken v. 1975); 252 N.W.2d trial court had reasonable knowledge of the (N.D.1976).” 317 value of the property in locality at To ordinarily this we add time purchased it was and drew appropriate appeals to this court the record must reflect inferences from the testimony presented. appellant brought that the all matters nec Any effort part on our assign a value to essary disposition for of the issues the property question at the time of appeal raised on before the trial court or acquisition and to the contribution each they improperly were excluded by the speculative. made would be In a divorce court; appeal and that all issues raised on action the trial court’s basis for its determi presented to the trial court but were nation on mattеrs of support, child alimony, not resolved in accordance with law. The and division of property are treated as find appeal process designed is to review action ings of fact. Haugeberg v. Haugeberg, 258 taken the trial court. It is designed not Kostelecky v. Kos (N.D.1977); N.W.2d 657 give appellant an opportunity to de telecky, 251 Larson velop (N.D.1977); N.W.2d 400 strategy different or theories. The Larson, v. appellant bound the record he 234 (N.D.1975). made. N.W.2d 861 As Rummel, Rummel v. supra. we said in Haugeberg, supra, page at 659:
205
Fischer,
Fischer
(N.D.
these
v.
139 N.W.2d
scope of review on
845
“Our
52(a), N.D.R.
1966).
Rule
findings is limited
The distribution of property in an
Civ.P.,
attempt
not set aside
thus we will
parties
restore the
to their rela
clearly er
they
unless
are
findings
tive
status
those
financial
before
will
clearly
erro
A
fact
clearly
roneous.
seldom be found
erroneous in a situ
when,
some
although there is
evi
ation
neous
such as this where the duration of the
it,
reviewing court
support
dence
was short and none
the other
evidence is left
the entire
guidelines
division as
that a mis
firm conviction
definite and
Fischer,
set forth in Fischer v.
are
supra,
v.
Kostelecky
made.
Kos
has been
take
overriding.
Rambel, 248
Rambel v.
telecky, supra;
agrees
a distribution to the
(N.D.1977); In re Estate of
N.W.2d
proрerty they
Elmer,
(N.D.1973).”
210 N.W.2d
however,
equitable,
she as-
finding of fact on a
Generally, a
serts it was error for the court to award all
controlling
in a divorce action which
issue
the property acquired by
dur-
basis
the trial court’s
to show the
fails
ing the
marriage Gene in the
absence
clearly
be
erroneous.
held to
conclusion is
one of
set
finding that
the factors
forth in
DeForest,
in this did ERICKSTAD, J.,C. and PAULSON and remodeling Gene’s it considered of fact that WALLE, J.,J VANDE concur. making a consideration investments as Justice, PEDERSON, concurring special- division, appears quite obvi- it ly- into con- those investments ous that took
sideration, parties as counsel for both I concur in the result reached conceded the same. much as and in much of what is majority said opinion, but Justice Sand’s I would have of in this case findings fact Although the that we dismiss the preferred be, Don- they complete should are not ground justiciable that no issue been has stated, agree, that the re- and we na has case tried presented. Where a is court if the trial would not be altered sults a jury, apparently trial court without a more additional and ordered to make theory equitable of an repeat our of fact. We findings specific in a action distribution of divorce Rummel, at supra, v. in Rummel statement law, a is question appealed is of then page and here determination findings of fact believe the “We do not equitable ques- what is distribution satisfy merely to curiosi- be made should law, tion it would be useless ritual to justice be would the ends ty. Neither reverse and remand and have the case tried if we were in this instance promoted again theory equitable property this case to trial court remand question of law. distribution is specific findings of and more additional distinguished This case has be from fact.” Nastrom, 262 N.W.2d Nastrom present at trial failed to evidence (N.D.1978),where we said: difference between necessary lack to permit “The evidence value the house price and market the court to make a correct *7 anything other than the result of lots was counsel, responsibility of not of the court. any by Gene. Without remodeling done It corrected find- cannot be amended this contrary, remanding to the evidence requires that additional evi- ings. Justice value finding that the increased case a dence on valuation be received.” large part in due to Gene’s house was of the Nastrom, in suggestion We had no such into the court took this and that efforts here, as has appellant made because divi- consideration no there is of fact ritual. sion would be useless distribution, 62(a), part of Rule find- the trial court’s Donna believed If NDRCivP, appellate review applicable insufficient, have ings shе could argument this apply. does not Counsel’s reopen or and amend moved alter questions may have question and on other factual a clarification of the judgment for validity had the old appellate some under the trial court determined issues practice trial de novo available when But, instead, but, then, its property division. even court needed appellate basis As we stated earlier some in the record as to the value appeal. she chose to evidence it if was herein, the assets privilege designed is a specific what division would be redetermine
equitable. my
Most of the bases for views on the 52(a)
application
my
Rule
are set forth in
Vetter,
to Vetter v.
(N.D.1978), repeat and I will them. wag Recently my I- informed that views are
theoretical and have no relevance to the it
real world as exists in the trial courts of Consequently, obligated state. I feel
this judges suggestion of a
remind lawyer a Bismarck North years ago—
Dakota Judicial Council five ought require every
that courts law-
yer proposed findings every present non-
jury case to trial for discussion at a
pretrial apparently conference. This is the courts,
practice report- in some New York
edly amazing with some Not only results. process
does serve an educational concerned, provides a everyone skeleton and, is
around which built most
significantly, judge’s it acts as a trial tool to prompt meaningful
aid in a decision.
It the parties, discloses to and to this court appeal,
if is an there the decision is
supported by a basis of fact and law. After
all, 52(a) Rule an appellate'rule not applicable
but is rule of practice
trial court to “all” cases without tried 52(a)
jury. If Rule to be made to work should, of litigants,
for the interest as it to improve working
start its has take at
place the trial court level. WALL, Appellant,
Alvin Plaintiff and
PENNSYLVANIA LIFE INSURANCE
COMPANY, Appellee. Defendant and
Civ. 9504.
Supreme Court North Dakota.
Jan. 1979.
Rehearing Denied Feb.