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Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.
Kent M. Morrow, Bismarck, ND, for plaintiff and appellee.
Brenda A. Neubauer, Bismarck, ND, for defendant and appellant.
Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. I concur in the result. Dale V. Sandstrom. Opinion of the Court by Crothers, Justice.
[¶1] Mervyn Mertz appeals from a district court divorce judgment distributing marital assets and debts and ordering him to pay spousal support. He argues the district court erroneously awarded permanent spousal support and the district court's division of assets and debts is clearly erroneous. We reverse and remand for reconsideration of spousal support and property distribution.
[¶2] Mervyn Mertz and Darlene Mertz were married in 1996. They were married 17 years but had a relationship for over 30 years. When the couple started dating, Darlene Mertz had two young children, whom Mervyn Mertz helped raise. In 1980, the parties had a son together. All the children are now above the age of majority. Darlene Mertz was 57 years old at the time of trial and works as a public school instructional aid. Mervyn Mertz was 60 years old at the time of trial and was an ironworker, but now is disabled. Both parties have several health problems.
[¶3] The district court granted a divorce and awarded Darlene Mertz spousal support of $900 per month until she dies or remarries and divided the marital property. Darlene Mertz was awarded retirement funds, a vehicle and personal property, with a combined value of $76,045. She was responsible for $1,700 in marital debt, resulting in a property award with a net value of $74,345. The district court awarded Mervyn Mertz the marital home, retirement funds, vehicles and personal property, with a combined value of $272,700. He was responsible for $47,465 in marital debt, resulting in a property award with a net value of $225,235. The court ordered Mervyn Mertz to pay $75,000 to Darlene Mertz to equalize the disparity in the value of property awards.
[¶4] A district court's " decision on spousal support is treated as a finding of fact and is subject to the clearly erroneous standard [under] N.D.R.Civ.P. 52(a)." Fox v. Fox, 1999 ND 68, ¶ 22, 592 N.W.2d 541. A district court's " division of marital property is . . . reversible on appeal only if clearly erroneous." Brandner v. Brandner, 2005 ND 111, ¶ 8, 698 N.W.2d 259. " A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made." Id.
[¶5] Mervyn Mertz argues Darlene Mertz failed to request spousal support in her initial complaint; instead, the complaint stated, " [N]either party shall make alimony or spousal support payments." In Darlene Mertz's application for interim order, she requested spousal support. Mervyn Mertz argues he objected to the district court's consideration of spousal support at the interim hearing and reminded the court Darlene Mertz failed to amend her pleading. Mervyn Mertz argues the district court erred in awarding Darlene Mertz spousal support because Darlene Mertz failed to properly plead or amend her complaint.
[¶6] " An issue which is not properly raised in the pleadings but is tried by the express or implied consent of the parties will be treated in all respects as having been raised in the pleadings." Schumacher v. Schumacher, 1999 ND 149, ¶ 25, 598 N.W.2d 131. " Under Rule 15(b), N.D.R.Civ.P., a pleading may be amended impliedly, by the introduction of evidence which varies the theory of the case and which is not objected to by the opposing party." Schumacher, at ¶ 25. " Implied consent is established where the parties recognized that the issue entered the case at trial and acquiesced in the introduction of evidence on that issue." Napoleon Livestock Auction, Inc. v. Rohrich, 406 N.W.2d 346, 357 (N.D. 1987). " [W]hether the issue was tried by express or implied consent is a matter within the sound discretion of the trial court and will not be reversed on appeal unless an abuse ...