Allan Opoien appealed from an order denying his motion to modify the judgment of *374 divorce which dissolved the marriage between him and Ruth Opoien. We affirm.
The marriage between Allan and Ruth was dissolved by a judgment of divorce in 1985. At the time of the divorce Allan was age 59 and Ruth was age 53; they had been married for 35 years. Allan was employed as a superintendent at the Tolna, North Dakota, Public School and had a gross annual income of approximately $36,-400. Ruth wаs employed as a licensed practical nurse and had a gross annual income of approximately $7,200. During the course of the marriage Allаn had accrued retirement benefits in his work as a teacher and school administrator which were worth approximately $800 per month at the time оf divorce. During the course of the marriage Ruth had been primarily a homemaker.
At the divorce proceedings the parties stipulated to a рartial distribution of property and submitted the following requests by Ruth to the trial court: (1) for $500 “alimony” per month, (2) for $4,000 used to purchase a car after the parties separated, and (3) for attorney fees. The stipulation did not discuss Allan’s retirement benefits.
In considering Ruth’s request for “alimony” 1 the divorce court recited the factors to be considered when “alimony” is requested. In particular the court noted in its memorandum opinion that because of Ruth’s age it was unlikely that her earning capacity would improve. The court also stated that it was unlikely that Ruth “could be rehabilitated at age 53 to enable her to obtain employment and earn retirement benefits equal to [Allan’s] employment and retirement benefits or equal to the benefits which she would have had if the marriage had continued ...” In discussing Allan’s accrued retirement benefits the court stated that “During the years of their marriage this retirement money was deducted from [Allan’s] check each month. In effect, [Ruth] also contributed to this fund and is entitled to its benefits.” The court proceeded to award Ruth “alimony of $400.00 per month” until she reaches аge 62 when that amount is to decrease to $250 per month.
Approximately one year after the divorce proceedings Ruth remarried. Allan then ceased making “alimony” payments. Ruth commenced an action in county court to collect those payments. Subsequently, Allan moved in the district cоurt for a modification of the divorce judgment eliminating his duty to pay “alimony” because of Ruth’s remarriage. The trial court denied this motion. It is from that order thаt Allan appealed.
Under the circumstances here present, the determination of the meaning of the divorce court’s award of alimony is a mixed question of fact and law.
2
Questions of fact are reviewable pursuant to Rule 52(a), N.D.R.Civ.P. Conclusions of law are fully reviewable.
Nygaard v. Robinson,
Allan contends that thе trial court erred in determining that the divorce court’s award of $400 per month “alimony” was a distribution of property and therefore not subject to modification. See, e.g.,
Wikstrom v. Wikstrom,
The trial court determined that the divorce court’s award of “alimony” was intended to provide for “an equitable distribution of retirement benefits.” 3 In reach *375 ing this decision the trial court was greatly influenced by the divorce court’s statement regarding Allan’s retirement benefits, that “During the years of their marriagе the retirement money was deducted from [Allan’s] check each month. In effect, [Ruth] also contributed to this fund and is entitled to its benefits.” This led the trial court to conclude:
“The retirement deduction from [Allan’s] income during the approximately 35 long years of marriage each month was money that if it had not beеn deducted for retirement would have been available for the family to spend supporting the children, supporting the family purposes and also аccumulations of property, and that was money which in effect [Ruth] contributed to the fund by in a sense suffering its absence from the family regular income.”
Thus the trial court determined the divorce court’s award of “alimony” was a distribution of property.
Allan contends that the divorce court’s award of “alimony” wаs an award of spousal support because a major consideration of the divorce court was the disparate earning capacities of Allan and Ruth. This argument fails to recognize that consideration of the divorcing parties’ earning abilities is one of the
Ruff-Fischer
guidelines [Ruff
v. Ruff,
Allan also argues that the “alimony” was spousal support because the divorce court ordered it to be reduced from $400 per month to $250 per month when Ruth reach
es
age 62. He argues that it cannot be property distribution because such a scheme would give Allan a greater share of the retirement benefits. However, we have previously noted that Section 14-05-24, N.D.C.C., which provides for the distribution of property in a divorce, requires only an “equitable distribution” of property, and that a distribution need not be equal to bе equitable. See, e.g.,
Volk v. Volk, supra,
and
Routledge v. Routledge,
We agree with the trial court that an analysis of the divorce court’s memorandum opinion and judgment of divorce sufficiently indicates that the divоrce court intended that the “alimony” was to accomplish an equitable distribution of the retirement benefits, pursuant to the directive of Section 14-05-24 that the court make an equitable distribution of property in a divorce. Thus we agree that the “alimony” was a distribution of property and therefore was not subject to modification.
The order is affirmed.
Notes
. "Alimony" is an inherently ambiguous term, for which a more specific term — e.g., permanent spousal support, rehabilitative sрousal support, property distribution, or child support — should be substituted.
Rustand v. Rustand,
. The motion to modify the judgment of divorce and the original divorce proceeding in this cаse were heard by different judges due to the retirement of the judge who presided at the original proceeding.
.Allan has not argued that a retirement benefit is not property which is subject to distribution by the court pursuant to Section 14-05-24, N.D. C.C. See, e.g.,
Delorey v. Delorey,