Fischer v. Fischer

On Rehearing.

The first point is a reargument of the appellant’s contention that the parties agreed that the property should be divided equally and that the court tried to divide the property equally but failed.

Special emphasis was made of the trial court’s statement in the memorandum opinion that “the parties also agree that a division as nearly equal as possible should be made of the real and personal property.” However, the respondent points out that the next sentence of the memorandum opinion indicates that there was no agreement to divide the land equally. The sentence reads as follows: “The land seems to be the main source of difficulty, and since the parties cannot agree, the following division will be made.”

It is true that after the part of the memorandum opinion setting out the division of the land the court said; “By making this division the plaintiff will be receiving twenty acres more than he would have had if there had been an equal division. In view of the fact that the land given the defendant appears to be of greater value, I feel that this twenty acres will offset the better quality land received by the defendant.”

In light of the court’s language in the amended findings of fact (“that in order to accomplish a fair and equitable division and distribution between the parties of all the real and personal property herein mentioned and referred to”), which we deem controlling over any language used in the memorandum opinion, we conclude that the trial court’s intent was to do what was fair *857 and equitable under the circumstances. That is all that the court was required to do. It is clear from the many paragraphs of the findings of fact that the court considered many factors, including the bad conduct of the appellant and the innocence of the respondent, in arriving at the division of the property.

With respect to this point, therefore, we adhere to the view expressed in our opinion.

The second point is newly raised. It is that Mrs. Fischer had $1,300 in government bonds at the time she applied for attorney’s fees and “hence, an award at that time was not required, but had it been made then it would have reduced the amount for ultimate division.”

Our view is that one need not be completely destitute to be eligible for allowance of attorney’s fees in the prosecution or defense of an action for divorce. Divorce proceedings usually consume months, and in some cases years before they are concluded. During the period of time between the initiation of the action or application for the allowance of attorney’s fees and the culmination of the action or the making of the award, a party to a divorce must provide for his or her necessities and should not be required to seek charity or governmental aid for these purposes if ample assets have been accumulated through the efforts of the parties.

In this case Mrs. Fischer had available $1,300 in bonds which she had purchased from the proceeds of the sale of milk, cream, and eggs. Together the parties had accumulated property approximating $100,000 in value, a great part of which was held in Mr. Fischer’s name or was under his control. Under these circumstances we do not believe the trial court abused its discretion in allowing Mrs. Fischer $1,500 in attorney’s fees. Any previous decisions of this court which might be interpreted to the contrary are hereby overruled.

We therefore adhere to our original opinion in all respects.

STRUTZ and KNUDSON, JJ., concur.

BURKE, C. J., did not participate.