Volk v. Volk

404 N.W.2d 495, 1987 N.D. LEXIS 290
CourtNorth Dakota Supreme Court
DecidedApril 16, 1987
DocketCiv. 11228
StatusPublished
Cited by18 cases

This text of 404 N.W.2d 495 (Volk v. Volk) 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
Volk v. Volk, 404 N.W.2d 495, 1987 N.D. LEXIS 290 (N.D. 1987).

Opinions

GIERKE, Justice.

This is an appeal by Pius Volk (Pius) from a judgment entered in district court in which the court distributed one-half of the marital property and one-half of the marital debt to each party. This 50-50 split distribution follows our remand of the original judgment in which Pius was awarded sixty-nine percent (69%) of the marital estate and Aleta Volk (Aleta) was awarded thirty-one percent (31%). Pius contends that on remand the district court failed to follow the directive of this Court. We agree.

In the original judgment, the district court valued the Volks’ marital estate at $834,817.00 and awarded Aleta $199,757.68 in property and cash, as well as $1,000 per month for ten years (present value $58,-453.20), for a total of slightly over $258,-000. See, Volk v. Volk, 376 N.W.2d 16, 17 (N.D.1985) (hereinafter referred to as Volk I.) Pius was awarded the remainder of the estate, some $576,000. Volk I at 17. Thus, the percentage split of the marital estate between the parties was sixty-nine percent (69%) to Pius and thirty-one percent (31%) to Aleta. Volk I at 17.

Contrary to what is asserted no fewer than five times in Justice Meschke’s dissenting opinion, this Court did not in Volk I determine or state that the Ruff-Fischer guidelines “favor neither party.” An accurate reading of the opinion in Volk I will [497]*497reveal that we determined that, “most of the [Ruff-Fischer ] guidelines would seem to favor neither party,” (emphasis added), adding further that, “[i]t appears that the trial court’s rationale is based primarily on the conduct of the parties during the marriage-” Volk I at 18.

By statute, the district court is required to make an “equitable” distribution of the real and personal property of the parties. Section 14-05-24, N.D.C.C. This distribution need not be equal to be equitable. Anderson v. Anderson, 390 N.W.2d 554, 556 (N.D.1986). When making this equitable distribution of the marital estate, the court is directed to consider a number of factors which have come to be known as the Ruff-Fischer guidelines.1 The determination of what constitutes an equitable distribution lies within the discretion of the district court and is dependent upon the facts and circumstances of each case. Nastrom v. Nastrom, 284 N.W.2d 576, 580 (N.D.1979). However, when a substantial inequality in the property division exists, that disparity must be explained. Anderson, supra.

Accordingly, in Volk I the district court properly considered the conduct of the parties in making its distribution of the marital estate. Nevertheless, we remanded the matter for further proceedings, giving the district court the option to, "... either make more specific findings of fact in order to justify this disparity or reexamine the distribution as originally made.” Volk I at 18. (Emphasis added). It does not appear that the district court on remand exercised either of these options.2

In the original marriage dissolution proceeding, the district court, in its discretion, determined that the facts and circumstances of this case were such that an equitable distribution of the Volks’ marital estate was achieved by granting thirty-one percent (31%) of the property to Aleta and the remaining sixty-nine (69%) to Pius.

In support of its distribution, the trial court found that, “[njearly all of the property acquired during the marriage came as the result of Pius’ work effort.” In Volk 1, we held that this rather general finding, combined with the evidence in the record of Aleta’s contributions both at home and outside of the home, led us to the conclusion that the district court’s findings of fact submitted for our review did not support the disparity in the original property award. Had the trial court’s determination that “nearly all the property acquired during the marriage came as the result of Pius’ work effort” been substantiated by more specific findings, the disparity in the division of the property might well have been appropriate.

It is important to note, especially in light of the trial court’s response to our decision in Volk I, that this Court did not determine [498]*498that the trial court’s findings in the original judgment were clearly erroneous. Had we taken this viewpoint, we could have ordered a redistribution of the marital property. We declined to do so even though it was strongly suggested in the dissent of Justice Levine. See, Volk I at 19 (Levine, J., concurring and dissenting).

Instead, we remanded the case with instructions that the district court make more specific findings of fact in support of the inequality presented by its distribution. Volk I at 18. Alternatively, if the district court could not justify the disparity in its division of the Volks’ marital estate, we ordered further proceedings permitting the court to reexamine the distribution as originally made. Volk I at 18.

Unfortunately, the district court apparently misinterpreted our directive. Without making any additional findings of fact and without further consideration of the Ruff-Fischer guidelines, the district court amended its property distribution from what it originally considered an equitable one (69% to Pius, 31% to Aleta) to an equal one. This resulted in a change in the amount of approximately $160,000.00 in the respective awards to each party. While we do not require that the Ruff-Fischer guidelines be specifically enumerated by the court to support its property distribution [see, Routledge v. Routledge, 377 N.W.2d 542, 545 n. 1 (N.D.1985)], certainly where there is such a great inconsistency between two separate property divisions in the same case, the district court should set forth some reasonable basis for its latter decision. See, Rule 52(a), N.D.R.Civ.P. (“In all actions tried upon the facts without a jury ... the court shall find the facts specially ... and direct the entry of the appropriate judgment; ... ”) (Emphasis added). In the instant case, it is inconsistent for the district court to inexplicably amend its distribution of the marital estate to one of equality when it had originally determined that a 69 — 31% split of the property was the equitable one.

We do not ordinarily act on division of property. But see, Anderson v. Anderson, 390 N.W.2d 554 (N.D.1986); Weir v. Weir, 374 N.W.2d 858 (N.D.1985); and Sanford v. Sanford, 301 N.W.2d 118 (N.D.1981). However, due to the length and nature of these proceedings and the need to bring an end to this litigation, in the interest of judicial economy we will redetermine the property division. Contrary to the assertion presented in the dissent, our redeter-mination of the Volks’ marital property is no more new or novel than that performed by this Court in Anderson, supra, at 556.

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Bluebook (online)
404 N.W.2d 495, 1987 N.D. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/volk-v-volk-nd-1987.