Gooselaw v. Gooselaw

320 N.W.2d 490, 1982 N.D. LEXIS 269
CourtNorth Dakota Supreme Court
DecidedMay 13, 1982
DocketCiv. 10122
StatusPublished
Cited by27 cases

This text of 320 N.W.2d 490 (Gooselaw v. Gooselaw) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gooselaw v. Gooselaw, 320 N.W.2d 490, 1982 N.D. LEXIS 269 (N.D. 1982).

Opinions

ERICKSTAD, Chief Justice.

Donald W. Gooselaw appeals from a judgment of divorce entered in the District Court of Cass County. He argues that the trial court’s property division, award of alimony for life, and award of attorney’s fees to Dolores M. Gooselaw are all clearly erroneous. We affirm the award of alimony and attorney’s fees. We reverse the trial court’s property award and remand for modification.

At the time of the trial, Donald was 48 years old and Dolores was 47 years old. They were married 23 years earlier on September 9, 1958, in Hunter, North Dakota. Three children were born of the marriage. [491]*491One child is a minor, but there is no issue over custody on this appeal.

Donald has a high school education and served with the United States Navy. After his discharge from the Navy, he became a hairdresser and operated beauty salons until 1970. In 1970 he started Mr. Don’s State College of Beauty in Fargo.

Dolores is a high school graduate and has a few months of business college training. She worked as a service representative for a telephone company in California prior to their marriage. During the marriage she worked as a bookkeeper for all of the couple’s business ventures.

Donald and Dolores began their marriage with little property. Upon divorce, however, they had accumulated substantial property.

The trial court, using the Ruff-Fischer guidelines, Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966); Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952), valued and divided the property owned by Donald and Dolores as follows:

Awarded to Dolores
Home located at 2818 2nd Street North, Fargo, valued at $70,000.00, less mortgage of $13,272.31, less home improvement loan of $4,711.85, for a net value of $52,015.84
Furniture, fixtures, household goods and appliances in said home $ 8,000.00
1977 Chrysler automobile, valued at $1,000.00 less encumbrance of $441.00, for a net value of $ 559.00
1973 Pinto, used primarily by children, a gift from Dolores’ parents, valued at $300.00, but not considered in distribution.
One half interest as tenant in common in Fashion Villa property located at 102 South University Drive in Fargo $20,000.00
TOTAL $80,574.84
Awarded to Donald
1973 Oldsmobile automobile $ 250.00
One-half interest as tenant in common in Fashion Villa property located at 102 South University Drive in Fargo $20,000.00
Don’s State College of Beauty $50,000.00
Arlene’s Beauty Shop $10,000.00
Life insurance policies on Donald’s life having cash surrender value of $ 542.27
Investment in apartment complex in West Fargo, ND $ 5,000.00
Federal and state income tax liability ($ 7,000.00)
TOTAL $78,792.27

Donald’s first argument is that the trial court erroneously valued Mr. Don’s State College of Beauty, an investment in an apartment complex in West Fargo, and Arlene’s Beauty Shop.

The trial court’s valuation and division of property is treated as a finding of fact and is thus fortified by Rule 52(a), N.D.R.Civ.P. Therefore, we will set aside these findings only if we determine they are clearly erroneous. A finding of fact is deemed clearly erroneous when we are left with the definite and firm conviction that a mistake has been made. Bender v. Bender, 276 N.W.2d 695, 697 (N.D.1979); Haugeberg v. Haugeberg, 258 N.W.2d 657, 659 (N.D.1977). Our review of the trial court’s record in this case has left us with the firm conviction that a mistake has been made as to the value placed on Mr. Don’s State College of Beauty and Arlene’s Beauty Shop. We are unable to find any evidence to support the value attached by the court to those two businesses. We have not, however, disturbed the trial court’s finding regarding the value of Donald’s interest in an apartment complex in West Fargo, there being sufficient evidence in the record to support a finding of $5,000 value. In fact, Donald himself testified that the market value of his interest in the apartment complex was $5,000.

The trial court valued Mr. Don’s State College of Beauty at $50,000. The only evidence in the record regarding the value of the college was Donald’s testimony that it was worth $26,000 less $7,000 owed for audio equipment, for a net value of $19,000. The school is located in a rented building in downtown Fargo which the record discloses consists of property of questionable salable or marketable value. Donald testified that [492]*492the market value of beauty colleges is typically determined by multiplying $1,000 times the average number of students enrolled in the school. The testimony indicates that Don’s State College of Beauty had an approximate average enrollment of 20 students. Additionally, Donald testified that the college owned equipment valued at $6,000. Using Donald’s uncontroverted testimony, the net value of the college appears to be as follows:

Value through enrollment $1,000 X 20 students $20,000.00
Equipment 6.000.00
Gross Value $26,000.00
Less:
Debt for audio equipment 7.000.00
Net Value $19.000.00

There being no other evidence, we ascribe a value of $19,000.00 to Don’s State College of Beauty.

Dolores argued that the trial court’s finding is supported by the income tax returns received into evidence. The income tax returns were offered to establish the couple’s income and source of income. The returns did not disclose other evidence of the value of the business. Dolores argues that Fraase v. Fraase, 315 N.W.2d 271, 275 (N.D.1982), is analogous to this case. In Fraase, we affirmed the trial court’s finding that a law office had an increase in value from 1970 to 1982 of at least $35,000 for purposes of property distribution in a divorce. Dolores argues that Fraase stands for the proposition that the income-producing ability of the principal in a service business may be used in valuing that business. That is not the holding of Fraase. In Fraase we held that the trial court’s conclusion that Fraase’s interest in the office equipment, furniture, fixtures, and accounts receivable of the law office of $35,000 accumulated over 12 years was not clearly erroneous. In light of the evidence, we conclude that the trial court’s finding that Mr. Don’s State College of Beauty had a value of $50,000.00 is clearly erroneous. As previously discussed, we believe $19,000 to be a more accurate evaluation of that property.

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Bluebook (online)
320 N.W.2d 490, 1982 N.D. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gooselaw-v-gooselaw-nd-1982.