Fischer v. Fischer

TEIGEN, Judge.

I dissent.

We granted a rehearing in this case and have now heard the rearguments of counsel. The majority of this court has adhered to the original opinion; however, I feel that the trial court did not accomplish that which it attempted to accomplish in the division of property between the parties and that the judgment should be modified.

This is an action for divorce commenced by the plaintiff. The defendant cross-claimed and prayed that a divorce be granted to her. In order that the case could be expeditiously tried, the plaintiff withdrew his complaint and permitted the defendant to prove up a case for divorce as on default, reserving however the right to submit evidence on the matter of division of the properties. This was done in open court. The defendant, in addition to cross-claiming for divorce, petitioned the court for an allowance of temporary alimony and suit money and the hearing on the petition was scheduled for the day on which the above stipulation was made. For this reason the court proceeded forthwith with the trial of the action on the basis of the stipulation.

The defendant introduced evidence in support of her cause for divorce as prayed for in the cross complaint. The plaintiff did not cross-examine nor did he introduce any evidence to refute the evidence introduced by the defendant. This was in accordance with the stipulation. Following the trial of the main action for divorce, both parties introduced evidence pertaining to *858 the property and the division to be made by the court.

The plaintiff has appealed from the judgment which we affirmed in the original opinion of this court. Two main issues were argued on the appeal and reargued on the rehearing. The plaintiff contends that it was the agreement and understanding of the parties that the property be divided equally and that the district court attempted to make an equal division of the property but that it failed and, secondly, that it was error for the district court to allow, as temporary alimony, attorney’s fees to the defendant in the amount of $1,500, payable by the plaintiff out of the property remaining in his hands after the division of properties was made.

I think it is clear that both parties were desirous of having the property divided equally. I note that in the cross complaint of the defendant the property of the plaintiff is described in detail and in the prayer for relief; in eight separate paragraphs, she asks that the property described be divided one-half to each. Relative to real estate, however, she asks that the 420 acres which she describes be decreed to her. It appears from the evidence that the parties owned 840 acres of farm land. The defendant selected one-half of the land and asked that it be set over to her. During the trial the defendant testified:

Q. What share do you want?

A. The half.

The plaintiff testified:

A. I believe she should have a rightful half, yes.

And, on cross-examination, he testified:

Q. And didn’t you dismiss it [a prior divorce action] because your wife demanded one-half of the property, isn’t that one of the reasons?

A. No.

Q. At the time you were not willing to give her one-half of the property, were you?

A. Yes, I was.

The trial court in its memorandum opinion said:

The parties also agree that a division as nearly equal as possible should be made of the real and personal property.

It is apparent and clear to this writer that this is what the trial court attempted to do. The trial court, in making a division of the property, did not decree to the defendant all the land she prayed for in her cross complaint. Instead, it decreed to her 400 acres and not 420 acres. It decreed that the plaintiff retain 440 acres of land and stated:

By making this division, the plaintiff will be receiving 20 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 20 acres will offset the better quality land received by the defendant.

Thus the trial court attempted to divide the land on the basis of value and not on an acre basis.

A further indication that the trial court attempted to divide the property between these parties on a 50-50 basis is indicated by the fact that it ordered an amendment of the judgment redistributing some of the personal property so as to assure a 50-50 division of it.

The evidence establishes that the plaintiff was the owner of two separate farms located approximately nine miles apart. The defendant was, decreed 360 acres in the home farm valued at $70 an acre, equalling $25,200, and 40 acres in the home farm valued at $50 per acre, equalling $2,000, for a total valuation of $27,200. The plaintiff was decreed 120 acres in the home farm, valued at $50 per acre, equalling $6,000, plus *859 320 acres of the other farm which is known as the Chaseley farm, valued at $50 per acre, equalling $16,000 for a total of $22,000. There is a difference of $5,200 or, in other words, the defendant received land valued at $2,600 more than one-half and the plaintiff received land valued at $2,600 less than one-half. The evidence establishing the acre valuation is not refuted.

The maj ority have construed the language used by the court in its amended findings of fact (“that in order to accomplish a fair and equitable division of the distribution between the parties of all the real and personal property herein mentioned and referred to”) to be controlling over the language used in the memorandum opinion and construes this language to mean that it was the trial court’s intent to do what was fair and equitable under the circumstances as opposed to an equal division, and that this was all that the trial court was required to do. They then allude to the many factors which the trial court considered, including the bad conduct of the plaintiff and the innocence of the defendant in arriving at the division of the property. This is mere conjecture and, under the circumstances of the trial of this action, merits little weight. Ordinarily in a divorce case in which one of the parties agrees that the other party may go ahead as on default, only such evidence as would be legally sufficient to establish a cause of action is introduced in evidence. However, a review of the record made in this case shows that the defendant was not governed by any such restraint. I feel that because the plaintiff made no attempt to refute or object to the introduction of this evidence by the defendant and introduced no evidence on his own behalf relative to the subject matter, it is unfair to give much, if any, weight to such evidence in determining a property division. The parties to this action have been married for 31 years and accumulated an estate valued at about $100,000 while engaged in the occupation of farming. It is evident to me, on the basis of the record, particularly in view of the ignorance displayed by the defendant as to their business affairs, that the plaintiff was not all bad but rather that he is principally responsible for the accumulation of this wealth.

The second argument pertains to the allowance of attorney’s fees. The trial court allowed the defendant attorney’s fees as temporary alimony or suit money in the amount of $1,500 to be paid by the plaintiff to the defendant from the property remaining in his hands after the court had made the property division. As stated in my special concurring opinion, written at the time of the release of the original majority opinion, this makes a differential of $3,000. It was my opinion that the judgment should have been modified reducing the sum to $750. However, the plaintiff on petition for rehearing has pointed out that the defendant had $1,300 in government bonds at the time she applied for the temporary alimony and suit money. It is clear that ordinarily attorney’s fees in civil actions are left to the agreement, express or implied, of the respective parties. See Section 28-26-01, N.D.C.C. Attorney’s fees are not recoverable in an action unless expressly authorized by statute. Such a statute is provided under our divorce laws. See Section 14-05-23, N.D.C.C. It provides :

Temporary alimony — suit money.— 'When an action for divorce is pending, the court in its discretion may require either party to pay as alimony any money necessary for the support of the other party, or of children of the marriage, or to prosecute or defend the action. (Emphasis supplied.)

The above statute was intended to be exclusive and to embrace the entire subject matter of alimony, support or suit money pendente lite. State ex rel. Hagert v. Templeton, 18 N.D. 525 , 123 N.W. 283 , 25 L.R. A.,N.S., 234.

We said in Bailey v. Bailey, 22 N.D. 553 , 134 N.W. 747 , that if the wife has ample means of her own to present her cause of *860 action or defense to the court, it would be an abuse of discretion to require the husband to make an allowance. In Hodous v. Hodous, 76 N.D. 392 , 36 N.W.2d 554 , 12 A.L.R.2d 1051 , we said that a debt incurred by a wife for medical expenses cannot be made the basis of a payment required to be made as temporary alimony where the debt was incurred several months prior to her application and its payment is not necessary for her support. In Heller v. Heller, N.D., 81 N.W.2d 124 , we said the main consideration in making an allowance for support money is the need of one party and the ability of the other to pay. The authority of the court to allow temporary suit moneys rests on statute, otherwise it does not exist. Hodous v. Hodous, supra. It appears the majority would overrule these and other cases applying the rule of necessity when they state:

Any previous decisions of this court which might be interpreted to the contrary are hereby overruled.

The cases cited above merely apply the statute which is clear. We said in State ex rel. Hagert v. Templeton, supra, as follows :

Jurisdiction in matters relating to divorce and alimony is conferred by statute, and the power of courts to deal with such matters must find support in the statute, or-it does not exist.

See also Leifert v. Wolfer, 74 N.D. 746 , 24 N.W.2d 690 , 169 A.L.R. 633 ; Agrest v. Agrest, 75 N.D. 318 , 27 N.W.2d 697 ; Brandt v. Brandt, 76 N.D. 99 , 33 N.W.2d 620 ; Stoutland v. Stoutland’s Estate, N.D., 103 N.W.2d 286 ; Azar v. Azar, N.D., 112 N.W.2d 1 ; Slade v. Slade, N.D., 122 N.W. 2d 160 .

Certainly after the court had made a division of the property granting this defendant more than $50,000 in property, she was well able to pay her own suit money and attorney’s fees. Furthermore, at the time of application for temporary alimony, she had $1,300 in her name and under her control which she could have used for this purpose. In addition, she was living on the home farm which, according to her testimony, produces food for use or sale. It is my opinion that the defendant failed in her proof to establish necessity.

For the reasons aforesaid, I feel the court’s judgment on division of the property should be modified.