Davis v. Davis

¶1concurring in part and dissenting in part.

¶2I agree with much of the majority opinion, but I cannot agree with that part of the opinion which reduces the alimony award to the wife.

¶3I would uphold the trial court’s determination as to alimony for several reasons.

¶41.I believe the disposition made by the trial court is fair and equitable in view of all of the circumstances. The trial court took into account, as the majority opinion does not, the fact that the husband’s income for the next five years, as limited by his voluntary agreement to the terms of an S.B.A. loan, is an artificial and unrealistic figure. The majority opinion bases its conclusion upon that artificial and unrealistic figure, made up of $25,000 salary and $24,-000 rental. But the fact is that average profits in the past and prospective profits in the future are much higher, and the excess will be accumulating during the period of artificial restriction of Lyle’s income. Since he is the owner of the corporation, he will reap the benefit of the increase. To base alimony computations upon such artificial figures is unrealistic.

¶5We held in Schnell v. Schnell, 252 N.W.2d 14 (N.D.1977), that a drop in a divorced spouse’s income, which can be varied from year to year by management decisions, was no reason to reduce alimony or child support. In the present case the drop is due to a heavy loan-repayment schedule for five years and an agreement to limit salary during that time. It is, in my view, no reason to deprive the wife or children of their rights.

¶6Even if Lyle had to dip into his net worth in order to make some of his payments for the five years when his income is limited, he would suffer no hardship. His net worth is about a quarter of a million dollars.

¶7To compare his situation with that of the husband in Hoster v. Hoster, 216 N.W.2d 698 (N.D.1974), and Larson v. Larson, 234 N.W.2d 861 (N.D.1975), is impossible. Host-er had a negative or deficit income, after paying the alimony and child support he was required to pay, and had nothing left to live on. Larson, after paying his own living expenses and alimony and support obligations, was losing $97.96 per month. By no stretch of the imagination can these fact situations be compared to that of Lyle Davis.

¶82. A decent respect for Rule 52(a), North Dakota Rules of Civil Procedure, requires a determination that the decision of the district court was not clearly erroneous, if erroneous at all.

¶93. If it were true that Paula is receiving more than she is entitled to, the majority of this court should follow its own often-stated policy of considering fault in awarding alimony and making property divisions. The excess should be attributed to punishment of the wrongdoer. The divorce in this case *781is granted on a fault ground, adultery, and the innocent party is Paula. In accordance with the majority’s frequently expressed policy of punishing fault, the conduct of the parties should be considered in awarding alimony and property division.

¶10I happen to disagree with the policy of considering fault in divorce cases, but I suggest that the majority should be consistent in applying its own rule.*

¶11CONCLUSION

¶12I would affirm the district court’s judgment in all particulars, except that I would remand the case to the district court to modify the provision as to the remaining corpus, if any, of the trust, at the termination of the trust, as provided in the majority opinion. In all other respects, including the award of alimony, I would affirm the judgment of the trial court.