Becker v. Becker , 262 N.W.2d 478 ( 1978 )

VOGEL, Justice,

dissenting in part and concurring in part.

I dissent from Part III of the majority opinion, which holds that the trial court has no authority to modify that part of the judgment which states that “neither party shall pay alimony to the other.” I do so because the majority disregards the plain language of Section 14-05-24, North Dakota Century Code. I concur in the result only in Part I because much of the discussion is, in my opinion, based on a misunderstanding of Rule 52(a) and would require a useless, expensive, and unnecessary modification of the practice in the district courts.

Modification of Provision for No Alimony

The majority opinion recognizes that the jurisdiction of the courts of this State to grant divorces and order alimony and property division is entirely statutory. The only statutes giving the courts of this State authority to grant permanent alimony and division of property are Section 14-05-24, N.D.C.C., and Section 14-05-25, which supplements it. Section 14-05-24 reads:

“When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, and may compel either of the parties to provide for the maintenance of the children of the marriage, and to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively. The court from time to time may modify its orders in these respects.”

The language as to “suitable allowances to the other party,” of course, refers to what is commonly called alimony. Stoutland v. Stoutland’s Estate, 103 N.W.2d 286, 288 (N.D.1960).

Section 14-05-24 by its plain terms gives to the courts of this State the power, upon granting a divorce, to (1) divide the property of the parties between them, (2) order the payment of alimony, (3) require either or both of the parties to support the children, and (4) “modify its orders in these [that is, all three of the foregoing] respects” from time to time.

This statute is the only authority our courts have to grant increases or decreases of' alimony or increases or decreases in the amount of child support each parent must pay. Up until the present moment, no decision of this court has ever held that a parent who was not required by a divorce judgment to pay child support could not be compelled to. pay it thereafter, nor have we ever held that a former spouse who was not required to pay alimony in the original judgment could not be compelled to pay alimony thereafter. The court now, in the case before us, says that a judgment which provides, as this one did, that “neither party shall pay alimony to the other,” cannot be subsequently modified to require payment of alimony. This court has said that changes in circumstances of the husband will justify the reduction of an award of alimony. See Hoster v. Hoster, 216 N.W.2d 698 (N.D.1974), and Larson v. Larson, 234 N.W.2d 861 (N.D.1975). A ruling which permits reduction of alimony because of a catastrophic illness of one spouse, but does not permit a requirement of the payment of alimony to the other party if struck, by catastrophic illness, cannot be logically justified.

The present case is a good illustration of the unfairness of such arbitrary rules as the court now imposes. Mrs. Becker has had open-heart surgery and is dependent upon welfare and food stamps for her subsistence, which her former husband is able to provide. If the trial court had originally awarded one dollar per year alimony, according to the rule imposed by the majority opinion, the amount of alimony could be modified, but since the court awarded no alimony in the original judgment, Mrs. Becker must stay on welfare and food stamps.

If such a result were compelled by our statutes or prior decisions, I might agree, but there are no prior opinions of this court on the subject, and Section 14-05-24, in my opinion, is violated by the majority opinion.

The majority attempts to justify the harsh result by citing cases from other States. Cases from other States are not binding upon us, even if the statutes were identical, or even similar, which they seldom are. Even if all the forty-nine other States had court decisions in accord with the majority opinion, we would still be bound by our statutes and not by court decisions of the other forty-nine States.

I prefer a new honor to an old disgrace. I reiterate what I said in dissent in Schneider v. Baisch, 256 N.W.2d 370 (N.D.1977), that there is no reason why we should follow unreasonable decisions from other States, and it is better to make good law than to import bad law.

Most of the decisions from other States either cite and rely upon Kamp v. Kamp, 59 N.Y. 212 (1874), or upon other cases which in turn cited and relied upon Kamp. The majority says that it is “persuaded by the reasoning displayed” in Kamp v. Kamp and Bassett v. Bassett, 99 Wis. 344, 74 N.W. 780 (1898), which I will discuss below.

The fact of the matter is that neither Kamp nor Bassett is in point. Both of them are based upon statutes which are widely different from the statute we must apply. In Kamp, the main opinion by Justice Allen adopts, as to the point we are discussing, the discussion in the opinion of Justice Grover, which dissents on other grounds. It is clear from considering the two opinions together that the New York statute in effect at the time provided that divorce judgments could be modified later only as to maintenance of the children and custody, care, and education of the children. The statutes did not permit modification of alimony awards, regardless of whether alimony was awarded in the original judgment or not. Thus this case has no bearing on the interpretation of a statute such as ours, which permits modification of alimony awards. Yet, decisions in other States, including California [see Howell v. Howell, 104 Cal. 45, 37 P. 770 (1894)], and now our own court, blindly cite Kamp to support a proposition for which it does not stand.

The same is true of Bassett v. Bassett, supra. The statute construed in Bassett provided that “After a judgment providing for alimony or other allowance for the wife and children, or either of them, . . . the court may from time to time, : . . revise and alter such judgment, respecting the amount of such alimony or allowance, .” [Emphasis added.] Obviously a court in Wisconsin could modify only a judgment which provided for alimony, not one which did not. Again, the difference in the statute is obvious, and the “reasoning” should not persuade anyone as to how to construe an entirely different statute.

Most of the other cases are based upon the extremely technical point that a statute authorizing a court to “modify” a provision in a judgment could not be used to grant alimony which contained no provision at all as to alimony. Such cases include Cameron v. Cameron, 31 S.D. 335, 140 N.W. 700 (1913); Howell v. Howell, supra; and Haug v. Haug, 195 Neb. 378, 238 N.W.2d 455 (1976). The annotation at 43 A.L.R.2d 1387 is limited to such cases. Of course, such reasoning would not apply in the case before us, because the subject of alimony is mentioned in the judgment and therefore, under that line of reasoning, the judgment could be modified.

For all of these reasons, I dissent from Part III of the majority opinion.

When we have a point of first impression in this State, and can make a choice of law to be applied in the future, and one of the choices is dictated by statute and conforms to good sense and justice, I can find no reason for adopting an outdated, unjust, and anachronistic rule of law from other States based on statutes different from ours or on misapplication of court decisions interpreting such statutes.

Application of Rule 52(a)

The majority opinion continues what appears to be an effort of one of the judges of this court to rewrite Rule 52(a) and then provide a commentary on it. I have protested against this tendency before, in a concurring opinion in Fine v. Fine, 248 N.W.2d 838, 844 (N.D.1976), and elsewhere without visible result. In the present case, the majority says, “At first blush, Rule 52(a) appears to except decisions on motions, other than certain motions to dismiss not here relevant, from the preparation of findings of fact and conclusions of law.” Rule 52(a) does except decisions on motions, and appearances at first blush have nothing to do with it. Rule 52(a) requires findings and conclusions of law in actions, and says that findings of fact and conclusions of law are unnecessary on decisions on motions except motions under Rule 12 or Rule 56 or as provided in Rule 41(b). None of these exceptions applies here. The majority opinion is thus, to put it charitably, misleading.

The majority opinion says, “A fact-finding process is necessary before it can be determined that the requisite material change in conditions has occurred. See Voskuil v. Voskuil, 256 N.W.2d 526, 530 (N.D.1977).”

This language seems to imply that a hearing and testimony are necessary on motions to amend judgments as to alimony, property division, and custody in divorce cases. This is not correct. Many, perhaps most, motions for such modification are based upon affidavits and may or may not require a hearing. In Filler v. Filler, 219 N.W.2d 96, 98 (N.D.1974), we said:

“Proof at the hearing was by affidavit.”

The citation to Voskuil v. Voskuil, 256 N.W.2d 526 (N.D.1977), is a reference to a statement supported by only a citation to Rule 52(a). Rule 52(a), as I have shown, does not require findings of fact and conclusions of law in decisions on motions of this kind. It requires them only in actions, and on certain kinds of motions not including motions to modify divorce judgments. The statement in Voskuil is therefore incorrect, and I decline to follow it hereafter.

If this court wants to impose upon the district courts a requirement that they follow certain procedures in determining whether changes of conditions of divorced parties have occurred, the court should do so under its power to supervise the district courts, not by reference to a rule which contains no language on the subject. Or, if the court is determined to modify Rule 52(a), it should be done by the same process by which the rule was first adopted — a written proposal, communicated to the Bar and the public, and a decision to adopt the rule, made after public notice and hearing, as required by Sections 27-02-08 to 27-02-15, N.D.C.C.