*1 аffirmed, except as to judgment is award, we remand with damage that, agrees Furlong unless instructions damages by within
a reduction remand, evidentiary an days
ten after purpose for the sole
hearing shall be held damages, if determining what costs and
any, be awarded.
ERICKSTAD, C.J., and VANDE JJ., GIERKE,
WALLE, PEDERSON and
concur. SEABLOM, A. Plaintiff Appellee, SEABLOM, Defendant
Carole J. Appellant.
Civ. No. 10505.
Supreme Court of North Dakota.
April *2 plaintiff pay
“10. That the shall unto alimony the defendant as and for payable further sum at the consecutive installments commencing per month rate of $400.00 pay- day May, on the 15th *3 day there- on the 15th of the month able paid in full. These after until terminated due to the death shall not be plain- remarriage party. of either The or amount may prepay part tiff all or of this any time. at Upon payment of the “11. above, аmount referred to each execute and deliver to the other shall conveyance such instruments of title or Hillsboro, plaintiff Bradley Berg, for W. necessary effect appellee. and foregoing property.” Forks, Trentadue, Grand for Jesse C. appellant. provi- each defendant and The district court discussed proposed agreement with both
sion of WALLE, compre- parties. After their Justice. VANDE stipulation and after hension of oral appealed from an order Carole Seablom equita- finding stipulation was an by the district court of Traill Coun- issued interests, the court settlement of their ble ex-husband, that her ty, which determined proposed in its incorporated the settlement Seablom, contempt for was not civil John payments pursuant to their failure to make decree. We affirm. pay When John was unable Carole $25,000, required by provision they as granted May In 1982 the district court agrеement, which ex- entered into another ground a divorce from Carole on John period provid- and tended the for differences. John and of irreconcilable due. ed for interest on the amount Carole, years had been married for who monthly pay- received some of the $400 children, to the and had no had submitted ments, required by provision proposed The district court a settlement. agreement provided that Carole was to re- sought to enforce In March 1983 Carole family ceive as her exclusive by execution on John’s debt car, encum- and a both free from residence deсlared his ex- John brances; goods furnishings; and household N.D.C.C., 28-22, Chapter and empt under effects. was to receive personal and John returned unsatis- the writ of execution was property farm tools and as his exclusive fied. also to enforce land, equipment, crops, an IRA and monthly debt $400 account, checking personal effects. 27-10-03, N.D. proceedings under Section large loans was to be liable for the a hear- The district court conducted C.C. expenses; farming for and John obtained ing determine if John was individually liable for and Carole were to be pay- pay monthly for failure to $400 smaller debts. оther the $400 ments. The court determined that agreement further stated: property, constituted spousal support; that civil plaintiff pay to the de- not “9. The shall lie; that execution was the Twenty-five Thou- would not the sum of fendant ($25,000.00) only remedy available for enforcement which is due sand Dollars Judgment. debt. days $400 of the date of within 60 appeal filed her notice A party After Carole “3. to an proceed- action or ing, denying contempt ... for the nonpayment from the order as a rem- of a sum money his ordered the court edy, joint, John and new wife filed a to be paid in a case where petition in thе law execution United States Court, cannot be awarded the collection Bankruptcy Eastern District of sum, or for any such other disobedi- North Dakota. Carole filed motions in the of ence to order, any judgment, lawful seeking permission bankruptcy court to file court; [Emphasis ...” proof requesting of сlaim and an exten- supplied.] sion of time for commencement of adver- sary proceedings. bankruptcy court Dvorak, In Dvorak v. granted the motions and stated that adver- (N.D.1983), interpreted Section 27-10- sary proceedings bankruptcy and stated that a district court days would commence 30 after this court contempt powers use its to enforce the *4 in renders its decision this case.1 payment money resulting of from the divi- property sion of in a divorce appeal argues On Carole that the district We stated that such sums be collected in court erred that the month- the of execution. To dе- ly payments constituted of a distribution termine whether or not the district court property, spousal support. not In the al- properly invoking contempt denied pow- its ternative, contends that even if the Carole ers, this court must first ascertain the na- divorce decree is a final settlement of payments required by provision ture of the erty rights, the district court should have 10, i.e., they proper- whether are a form of by contempt using enforced the decree its ty spousal support. or powers by declaring exemption or that the applica- of 28-22 statutes are not to enforce thе divorce judgments. ble to divorce also rais- by using remedy decree execution as a that es other issues relate to the standard payment $25,000 9) (provision the proof proof contempt and burden of in by using contempt remedy civil as a proceedings. Because we determine that payment (provision of $400 proper civil remedy is not a to 10). proce Her selection of enforcement judgment, enforce the divorce we do not not, however, dures does determine the na relating address the issues to monetary ture of the awards. Carole and proceedings. agreе that the is a division; property respect form of with to Carole contends that civil monthly payments, the Carole inter $400 proper remedy for enforcement of the prets payments spousal support, the as required monthly payments by provision 10 John as division. 27-10-03, of the divorce decree. Section N.D.C.C., part: in provides, hearing At both the divorce and the con- tempt hearing, attorney, punishable
“27-10-03. Acts
as civil
who did
contempts. Every
represent
appeal,
not
her on
stated that the
of record of
—
may punish
monthly payments
in
this state
as for a civil con-
were
the nature of a
tempt any person guilty
neglect
of a
or
settlement. When Carole’s attor-
duty
ney
proposed findings
violation of a
or other misconduct
examined
fact
by
right
remedy
proceeding,
pre-
or
in the divorce
which were
which a
requested
proceeding pending
pared by
attorney,
action or
Jоhn’s
she
defeated, impaired,
payments
as “alimo-
such court
that
be described
payments.”
attorney agreed
impeded,
prejudiced
following ny
in the
John’s
or
payments
alimony,
characterize the
eases: ...
bankrupt-
jurisdiction
interpret
the merits of the
1. We
the order issued
rent
consider
cy
granting
Stаmper
Stamper,
relief from
automatic
court as
v.
In the
tion. The
death does not neces
ny
provision
sarily
10
indicate
payment
property
does not
the
terminate the
of a
parties’
frequently
spousal support.
intent. This court has
or of
distribution
See
alimony
Gustafson, supra;
Matter
Estate
ambiguous
that
stated
the word
of
Estate,
Stоutland
v. Stoutland’s
may
prop
because the word
denote either
103
See,
(N.D.
erty
spousal support.
1960).
obligee’s
distribution or
N.W.2d 286
An
Coulter,
death, however,
Coulter v.
e.g.,
925 erty provision prop- remedy 10 is more like a division of because the remains available spousal support. a form of A erty years entry judg- than for 10 after the of the 28-21-01, of the net value of the determination ment. See Section N.D.C.C. We erty parties would us owned assist therefore conclude that under our current resolving whether not the divorce improper statutes civil is an rem- proper- decree was a final determination of edy for the enforcement of а distribution of ty rights, but a district'court in uncontest- property. need not ed divorce actions ascertain the In the alternative Carole contends that net value of the See Fleck v. exemption statutes of 28-22 do
Fleck, supra.
apply
judgments
entered in divorce
present
In
judge
case the samе
proceedings.
When Carole
to en-
during
presided
the divorce and
execution,
judgment by
force the
proceedings.
judge
opportuni
had the
exemptions provided by
claimed the
Sec-
ty to view the demeanor and ascertain the
28-22-03,
tions 28-22-02 and
N.D.C.C.
credibility
parties. Although
exempt
John claimеd
property
he
interpretation of
a contract
matter
received from
property
distribution.
court,
recognize
judge’s
law for the
Exemption statutes are remedi
opportunity
to examine
difficult issue
liberally
al and are to be
construed to effec
parties’
intent in the context оf the
de
purposes
tuate the
of their enactment.
credibility.
meanor and
We do not believe
Co.,
Falconer v. Farmers
U. Oil
district court erred in
(N.D.1977);
Fraine,
N.W.2d
Dieter
provision
10 denotes
division.
(1910). Exemption
N.D.
We property may not be Dvorak, 02 states that certain terpretation supra, con which exempt process, levy, from or sale for tax 27-10-03 strues Section 27-10-03. Section pursuant Chapter 57-55. es levied on it implies that civil and exеcution Although this case involve obvious mutually procedures exclusive for en are Legisla recognize judgment. injustice, A dis forcement of a court, ture, body to proper is the execution on the this tribution enforceable Dvorak, governing this matter. supra. a writ amend the statutes judgment. When unsatisfied, Legislature specify the par It is for the of execution is returned exemptions applicable ty may later on the debtor’s be execute creditor, judgment will provisions be labeled proceedings to enforce judgment neither in a divorce will be labeled debtor. property division resulting, There will unsolvable be no com- the appeal do not find frivo We plications involving of bankruptcy, the law City Fargo, Nissen lous. See exemption, contempt. or execution and (N.D.1983). We therefore right to appeal by Claims waiver deny request damages and rea John’s acceptance will not оf benefits be made. pursuant attorney fees to Rule sonable case, and so But this is not such a tradition N.D.R.App.P. appellate compel me to rules concur is affirmed. The order spite injustice” pointed of the ‘“obvious out by Justice VandeWalle. Justice, PEDERSON, concurring special- ty- argument hopefully, an will be
Someday,
presented a divorce case to a trial equitably assets should the marital awarding husband his
divided
share, her Neither and to the wife share.