*1 495 acceptance Farley of an offer is In this case is an interested binding an Moreover, from moment offeree de testimony Grubert’s that Farley posits properly addressed letter of ac did not tell him that the letter had been mailbox, ceptance only if sent, but there which the trial court was entitled to express implied is an or authorization believe, permits a reasonable inference that that the mails are to be used. Such an Farley not mail the acceptance letter implied authorization would arise when prior telephone conversation. We ” by the offer is communicated mail.’ conclude finding trial court’s Smith, 575, v. 88 Wis.2d 277 Farley acceptance mailed the letter after Mansfield 740, (1979) [quoting N.W.2d 746 E.M. telephone clearly conversation is not Boerke, Williams, 627, v. 28 Inc. Wis.2d erroneous. 489, (1965)]. 137 N.W.2d 493-494 Because proposal Grubert withdrew his The trial court found as a fact that Far- Farley’s purported acceptance, before no ley acceptance mailed the letter after the and, enforceable contract was formed telephone conversation which Grubert therefore, correctly him that the informed terms contained seeking missed specific perform- the action September 12 letter were withdrawn. ance. Wucherpfennig See v. 351 Dooley, finding We will not disturb a trial court’s (N.D.1984). N.W.2d 443 We need not ad- clearly of fact unless it is erroneous. Rule dress the other Farley issues raised 52(a), N.D.R.Civ.P. they necessary because are not to the de- E.g., termination this case. v. Bohn
Farley testified that he mailed the letter Johnson, 781, (N.D.1985). 790 from Grand Forks and then traveled to one of his restaurants Grafton where he The is affirmed. Winnipeg called let Grubert “to him accepted copy know that I’ve and a of that ERICKSTAD, C.J., MESCHKE and acceptance inis the mail to him.” Accord- WALLE, JJ., VANDE “ ing Farley, ‘[y]ou Grubert him told PEDERSON, Justice, Surrogate concur. long. going waited too We’re not to ac- ” PEDERSON, Justice, Surrogate cept.’ Grubert testified that LEVINE, J., sitting place telephone Farley call him asked “how we disqualified. doing pro- on the were offer that he’d posed,” but recollected little else about the
conversation. testify, Grubert did how-
ever, Farley did not tell him that an
acceptance letter had been mailed to him.
Farley asserts that the court’s find clearly erroneous because his testi
mony prior that he mailed the letter
telephone “positive conversation is un- VOLK, Kaye Plaintiff Aleta impeached,” and is uncontradicted Gru- Appellee, testimony. State, v. bert’s Fleck 71 636, (N.D.1955), quoted N.W.2d 640 VOLK, Appellant. Morris, Defendant and approval Crilly 836, (1945): S.D. N.W.2d Civ. No. 11228. “ ‘The rule well settled that where Supreme Court of North Dakota. unimpeached an witness testifies distinct- ly positively to a fact is uncon- April tradicted, but statements of the wit- grossly ness are improbable he has an question issue,
interest Courts blindly adopt
are not bound the state- ” ments such witness.’ *2 Bucklin, Bismarck,
Zuger plaintiff & Bol- argued by Robert Y. appellee; inske. Bismarck,
Chapman Chapman, for de- & appellant; argued by Daniel J. fendant and Chapman.
GIERKE, Justice. (Pius) appeal by This is an Pius Volk court in judgment from a entered in district which court distributed one-half mari- property and one-half of the split 50-50 tal debt to each This orig- follows our remand of distribution inal in which was awarded (69%) sixty-nine percent the marital es- (Aleta) tate Aleta Volk was awarded (31%). thirty-one Pius contends percent failed to that on remand the district court Court. We follow the directive agree. judgment, the district original
In the at the Volks’ marital estate court valued $199,757.68 $834,817.00and awarded Aleta cash, $1,000 per as property and well $58,- (present value years month for ten $258,- 453.20), slightly total of over for a Volk, 000. Volk (N.D.1985)(hereinafter to as Volk referred I.) remainder of the Pius was awarded the estate, $576,000. 17. I at some Volk Thus, split the marital percentage sixty-nine estate between per- (69%) thirty-one percent (31%) 17. cent to Aleta. Volk I at no fewer Contrary to what asserted Meschke’s than times Justice five this Court did not Volk senting opinion, determine or state An accu- guidelines party.” “favor opinion in I will reading of the rate that, that we reveal determined “most of order justify disparity or reexamine would seem the distribution as originally [Ruff-Fischer ] made.” (emphasis added), party,” (Emphasis added). to favor neither Volk I at 18. It does adding appear appears district court on re- “[i]t mand primarily options.2 trial court’s exercised either rationale based of these parties during the conduct of the the mar- original In the pro- dissolution riage-” Volk I ceeding, court, the district discretion, *3 determined that the facts and circumstanc- statute, By the district is court re es of equitable this case were such that an quired “equitable” to make an distribution distribution of the Volks’ marital estate personal of the real and property the of by granting was achieved thirty-one per- 14-05-24, parties. Section N.D.C.C. This (31%) cent of the property to and Aleta the distribution need not eq be to be remaining (69%) sixty-nine to Pius. Anderson, uitable. Anderson v. 390 554, (N.D.1986). making N.W.2d 556 When In support distribution, of its this distribution the of marital court “[njearly found all of the prop- estate, court the is directed consider a erty acquired during the came as number of factors which have come be the 1, result of Pius’ work effort.” In Volk guidelines.1 known as the general held that this finding, rather Ruff-Fischer The determination of what constitutes an with in combined the evidence the record of equitable distribution lies within the discre Aleta’s contributions both at home out- of tion the district court is dependent home, side of the led us to the conclusion upon the facts and circumstances each of that findings the district court’s of fact Nastrom, case. Nastrom v. 284 N.W.2d support submitted for our review not 576, (N.D.1979). However, 580 when a the disparity original in the property inequality in property substantial the divi award. Had the trial court’s determination exists, disparity sion that must ex be “nearly property all acquired the dur- plained. Anderson, supra. the came as the result of Pius’ work effort” been by substantiated Accordingly, in I the Volk district court specific findings, more disparity the in the properly the par- considered conduct of the might division of the property well have making ties its distribution of the mari- appropriate. been Nevertheless, tal estate. we remanded the matter for proceedings, giving note, the important It especially light is to, option district court response the "... either of the trial court’s to our decision specific findings I, make more in in Volk that this Court did not determine of fact stated, Supreme having 1. As we so my have often the “The Court remanded judgment direct the court to consider: case for reconsideration as division, property hearing having (a) respective ages parties; the matter, been held on the both (b) abilities; parties’ earning the being present, their counsel it is now neces- (c) the the duration of and conduct sary for me to make a settlement in parties during marriage; of each of the the keeping apparent with intent (d) life; the of the Court. parties’ the station in my Supreme I find from review of the Court’s (e) the circumstances and necessities of each copies of decision of briefs coun- parties; appeal, (f) sel that were filed with the that there condition; parties’ physical health and are no further of fact that I can or (g) parties’ financial circumstances as reasonably expect- wish to make that could shown owned the time of persuade dissolution, value, ed to the Court that initial deci- the marital its its income- appropriate. sion is (if producing capacity any), and whether it [sic], eq- I "Therefor find a fair and was accumulated before riage; (h) after the mar- and, division of the marital uitable parties Prop- as listed in Plaintiffs Post-Trial other material matters. Summary erty Inventory 775, and Valuation 107, Ruff, v. 78 N.D. 52 N.W.2d Ruff along Fischer, each take one-half thereof (1952), 111 Fischer 139 N.W.2d existing against any one-half indebtedness (N.D.1966). 852 property, said to have fees or simply
2. The district brief court’s order stated: costs.” 498 Weir, (N.D.1986); original 390 554 Weir v. court’s N.W.2d (N.D.1985); clearly N.W.2d erroneous. Had we were Sanford (N.D.1981). Sanford, viewpoint, could have or- taken this However, length due to the and nature prop- the marital dered redistribution of bring an the need to proceedings these though even it erty. We declined do so litigation, in the interest end to this suggested in the strongly dissent economy judicial we will redetermine (Levine, at 19 Levine. I
Justice Contrary asser- property division. J., dissenting). concurring and dissent, presented our redeter- tion in- Instead, the case with we remanded mination of Volks’ court make district structions performed no more new or novel than that specific findings more of fact Anderson, at 556. supra, Court inequality presented by distribution. entire Based on our review of the Alternatively, if the district Volk at provisions record in this case under in its justify disparity court could *4 guidelines, the find sub Ruff-Fischer estate, division the Volks’ marital of dis support unequal an stantial evidence to proceedings permitting the ordered further many While of the property. tribution of origi- the court to reexamine distribution party, favor our determina factors nally made. at 18. prop the tion of the distribution of erty parties upon the conduct of the turns ap Unfortunately, the district court marriage. their misinterpreted our directive. parently any making Pius, of Without additional undisputed by testimony the of It is of further consideration fact and without daughters, by Aleta the Volks’ two and guidelines, the district the marriage break-up the of this herself that Ruff-Fischer its property court amended distribution spend desire her was caused Aleta’s to eq originally from it considered an what non-family Aleta al- members. time with Aleta) (69% Pius, to to to uitable one 31% leged only money for that Pius cared change in in This a an one. resulted participate in social did not want Aleta’s $160,000.00in approximately the amount left the life of their home. Aleta outside respective party. While the awards to each not January in 1982 and did Volk home require we do not the that Pius did undisputed return. It is specifically enumerated be up to the divorced and even want to be property court to distribu the he it time of the let be known [see, Routledge, 377 Routledge tion v. married to Aleta. wanted to remain certainly (N.D.1985)], n. 1 N.W.2d 545 Similarly, parties worked outside both inconsistency great such a where there is marriage. throughout the most the home in separate property between two divisions recognized that a traditional We have case, set the same the district court should arising from homemaker’s contributions some for its latter forth reasonable basis are asset to and home care an child care 52(a), Rule decision. N.D.R.Civ.P. be enterprise marriage and should the (“In facts upon all tried the without actions upon recognized a distribution jury the court ... shall find facts marriage. v. of that Briese dissolution entry of the specially ... direct (N.D.1982). Briese, 325 N.W.2d ”) judgment; (Emphasis appropriate ... However, it appears case instant added). case, it is In the instant inconsist throughout the mar- Aleta worked while inexplicably ent for the district court jobs two full-time for riage, Pius held down the marital estate amend its distribution of collecting marriage, as well as most of the originally it had equality to one of when injury an he received per month for $570.00 split prop that a of the determined 69—31% Similarly, is clear it the Korean War. erty one. many of “tradi- record that from the management responsibilities for ordinarily act on tional” We do not division by Pius dur- see, Anderson, borne and children were property. But home Anderson ing marriage Graves, his to Aleta. performed (N.D.1983). N.W.2d 903 many throughout household chores Counsel for both Aleta concede Aleta, his was a acrimony substantial due to which exists be- children, parties’ caretaker two parties, agreement tween the any regard- especially has been sensitive to needs the distribution of the marital property parties’ epileptic daughter, providing impracticable. While marital her awith home and care. partitioned Contrast this need separately not be who, Aleta according conduct with that of instance, tributed each every testimony daugh- this, of the Volks’ other a divorce such as where has ter, Peggy, charged her requested rent to live their specifically upon graduation high home school. separately clearly distributed and there ex- ists ill-will between the involved The assets were accumu- against cooperation that militates in dis- mostly through lated Pius’ work ethic. posal estate, of the marital providing While care for his home and chil- partition should and distribute the marital holding dren jobs, down two Pius accu- property separately spouse. to each mulated and made investments increasing property many- ended, value of The Volks’ all in- fold. Pius worked full-time for Montana- tents purposes, grew Aleta when tired Utilities, operated Dakota also a farm lifestyle but of Pius’ and desired to life at live condominiums, and invested pace land faster without him. As Justice thereby increasing the assets of the marital Meschke Anderson, noted for the Court in depleted estate while Aleta supra, cases, monies “In 555: divorce our stat- her employment money earned from ute an ‘equitable commands distribution’ *5 placed joint by in a account Pius for house- which ‘just proper.’ is A basic dictio- family expenses. hold use and nary Aleta had a ‘equitable’ definition of is ‘fair to all ” herself, (Citations supporting omitted.) difficult time tended to concerned.’ After a income, overspend her par- case, review of the entire record this separation required ties’ financial assist- remand with instructions to the trial court ance partition to maintain her standard of to prop- distribute the marital living. Importantly, spouse Aleta took no erty separately interest to each instruc- aspects the financial of the tions that Pius is to receive two-thirds the record reveals that she even marital estate and Aleta to receive one- many prop- know where investment third. erties approved were located. We have a Reversed remanded. unequal
trial court’s distribution of the part marital estate in due to the financial ERICKSTAD, C.J., concurs. mismanagement dissipation of the PEDERSON, Justice, Surrogate by that Erickson v. WALLE, sitting in place of VANDE Erickson, (N.D.1986); J., disqualified. also, Erickson, supra, (Levine, at 662-63 J., specially concurring). appro- It seems PEDERSON, Justice, Surrogate concur- priate Pius, a that such as accu- who ring specially. majority mulated the of the marital assets Because this case has now reached the through extraordinary his financial acu- requires a posture that choice between men, devotion to hard work wise in- equally to undesirable alternatives vestments, by should be rewarded receiv- made, choose to concur in the results —I ing greater a share property. of marital opinion by reached in the Justice Gierke for
A second by attempt issue raised Pius in the reasons which I artic- will to volves specially his assertion that the district court ulate. I concur in state- separately by relating failed to distribute the Volks’ ments made Justice Gierke marital separately partition accordance with the the need to sometimes dictates of this Court’s decision rather in Graves assets an acrimonious divorce awarding tenancy subject revision appeal
than common or children are including joint ownership property. particulars, in the in all those which are to be in the discretion of the stated jury, court After a trial to the without a court.” effect, court, very made “con- the trial revising disposition proper- of the clusory” finding equitable that it was case, inty acting capacity of the of a receive marital estate 69% court,” “super In the I lean toward a that Aleta receive thereof. revision 31% 52(a) light requirement nearly follows the Rule more conclusions sepa- trial court make NDRCivP, reached trial court in the first in- I findings of stance. satisfied that is no special rate and fact which am not there (and split for the close to the this court when articulable basis even 69%-31% appeal) understanding though pre- court did not wish to is an an there reached, previ- pare findings persuade for the conclusions that would basis alia, ously support- so inter court. remanded prepared. findings could be MESCHKE, Justice, dissenting and con- thereafter its or- The trial court issued curring. containing following der rationale: time, For the second the trial court’s “... are no further of fact there division of a substantial accumulation of that I can or wish to make that could spouses these marital between expected persuade reasonably be years marriage appellate end 28 is under (Supreme) my Court initial decision equal review. This time an division is re- finding appropriate.” This is followed jected supposed because of a conflict with a fair and fact that “... divi- But, earlier of the trial court. sion is that each one-half ... take would affirm inasmuch as an division the listed assets ...” of all as well surely equitable when the debts. par- “favor neither only has The trial court added to lack ty,” as in our first we determined review. understanding the basis for its determi- Initially, divided preferred nation. I would have that this $834,800,by awarding assets Ale- valued consistently court and once more re- react *6 cash, $199,700 property in ta well as mand, insisting deficiency that the re- be $1,000 per years month for ten with a acceptable That is not an choice to solved. $58,400, present of for a total of value I recognize on this court and their others $258,000 (31%). the Pius received remain- reasoning. $576,000 (69%). ing
I reluctantly forego my usual reliance decision, In on Aleta’s appeal, our first upon 52(a)in this sort of Rule situation (N.D.1985), Volk, 376 N.W.2d rely appears upon instead what to obso- be “most this determined that of the statutory authority lete court which has not been guidelines would to urged party in this seem by either case. To ] [.Ruff-Fischer party,” identify any did not knowledge urged have not been fol- favor neither we party in factors one over anoth- part any low this of this statute in case that favored er, participated which I over the last 12 and concluded that the trial court’s find- have years. disparity complete ings support In conflict the abol- the in “not the awards_” by legislative trial de nova ac- respective property ishment of We di- adoption tion this court’s rules and with of the “to either more rected trial court make incredi- practice, specific findings justify 14-05-25 NDCC of fact ... this of section bly part: in provides disparity the or reexamine distribu- separately, ...” Levine wrote tion. Justice disposition
“The
of the
the
homestead
support
record did “not
court,
concurring that the
and all orders and decrees touch-
awards,”
property
disparity
the
but
alimony
and maintenance of ei-
instructed the trial court
party
ther
to a
and for the
she would have
education,
equally
a
support
property
“to
since
custody,
of
divide
application
proper
findings
of
of fact submitted for
Ruff-Fischer
justifies
guidelines
disparate
no
support
treatment
our
do not
review
the disparity
property
division.”
respective
in
property
in
awards
this
case.”
Pius
is
argues
that there is “obvious con-
argues
equitable.
not
He
that
flict”
between
initial
fact
conflict,
judgment
court
equal
the current
division
follow the
our
did not
mandate of
first
property.
spe-
the marital
He does not
decision, and that
unseparated
identify
division cifically
conflict,”
the “obvious
in common was
In
decision,
erroneous.
I see
our
none.
first
point-
general
ed
finding
“nearly
out that the
application
guide-
Where
of Ruff-Fischer
all of the
...
result
[was]
equal
lines does not favor either party,
Pius’s
effort” did
work
not
a dis-
of marital property upon
division
dissolu-
parate
award
view of
contribu-
Aleta’s
longstanding
surely
tion of
tions both as
homemaker
full-
and as a
equitable.
concluding
that neither
wage
time
earner outside of the home for
guide-
was “favored”
the Ruff-Fischer
early years
marriage.
all but two
prior decision,
in our
lines
summarized
Nothing has been added to the
record
applied
those factors as
case:
to this
appeal
this second
to create a different
[Tjhere
great
“...
no
difference
view of the evidence.
ages
parties,
earning
their
abili-
findings by
The lack of further
ties,
life,
their
station
the circumstanc-
spelling out
court
how
factors
each,
es and necessities of
their health
Ruff-Fischer
hardly significant,
lead to
division is
physical
condition or their financial
analysis in
opinion
where the
our first
dem-
undisputed
circumstances.
It is
that nei-
onstrated that
not
factors do
party brought any significant prop-
ther
Ruff-Fischer
favor either
As this court reiterated
erty
into the
Routledge Routledge,
separate opinion. remand. In- specify a result on
did not
stead, given range judge findings or re- make further
alternatives: view, the distribution.
examine chose to reexamine permissibly
trial court distribution, grope rather than to disparate might support a
findings that
division.
Therefore, the remand I dissent from “an
insofar as it dictates equal, is so far
distribution” upon a and novel assessment
based new evidence, findings of unsupported by
fact, spouse which contributed about marriage.
greater effort economic majority opinion
I concur with partition remand, the trial court should property to each separate
and distribute course, every as in divorce
spouse. Of trial court has available
proceeding, the partition tools of
it the full set of remedial 32-16, N.D.C.C., and
proceedings. Ch. See Am.Jur.2d, Separation, Divorce (1983). exactness is not Arithmetic
§ compliance
required, but substantial sought. should be
the formula of division
LEVINE, J., concurs. and John Szar
William SZARKOWSKI
kowski, partnership, Szarkow d/b/a Trucking, Appellants,
ski Plaintiffs COMPANY, a
RELIANCE INSURANCE
foreign Corporation, Defendant Appellee. No. 11347.
Civ. *8 North Dakota.
Supreme Court of
April 17, 1987.
As Corrected June