concurring and dissenting.
[¶ 33] I concur in the majority’s treatment of visitation and spousal support. I agree Kathy is clearly a disadvantaged spouse, entering a new career at this point in her life. The only question that currently cannot be answered is the full extent of Kathy’s disadvantage; only time will tell us that. Some present award of rehabilitative spousal support, with the opportunity for adjustment in the future as may be needed, is required.
[¶ 34] However, I must respectfully dissent from the majority’s reversal and remand of the debt allocation. The majority has separated the trial court’s allocation of debts from the rest of the property distribution, and has criticized the allocation of part of a debt without regard to the net effect of the entire property distribution. The only “clear error” identified by the majority relating to property distribution is the allocation of part of the MBNA debt to Kathy. I can agree with the majority that, standing alone, the allocation of $3,650 of the MBNA debt to Kathy makes very little sense, when we know part of that debt was incurred to pay court-ordered support to Kathy. The problem is this allocation of debt does not stand alone. It is part of the entire property distribution, and can only properly be considered in the context of the entire property distribution. The trial court gave Kathy a property award with a net positive value of $38,527. The award to Bruce had a negative value, minus $12,285. The difference between the two is $50,812. The net value of the entire marital estate was only $26,242' When considered in the full context of the entire distribution, I cannot agree the allocation of part of the MBNA debt to Kathy is clearly erroneous.
[¶ 35] By separating the MBNA debt allocation from the rest of the property distribution, and analyzing that allocation without regard to the net effect of the entire distribution, the majority has dressed its action to look like an application of legal principle. In fact, the majority has retried the evidence in this case, and has simply arrived at a different finding. We often inform lawyers and litigants who request such retrials on appeal that we do not do them. We should adhere to that principle in this ease, too.
“The existence of any doubt as to whether the trial court or this Court is the ultimate trier of fact issues in non-jury cases is, we think, detrimental to the orderly administration of justice, impairs the confidence of litigants and the public in the decisions of the district courts, and multiplies the number of appeals in such cases.” (Citations omitted.) “Rule 52(a) [N.D.R.Civ.P.] should be construed to encourage appeals that are based on a conviction that the trial court’s decision has been unjust; it should not be construed to encourage appeals that are based on the hope that the appellate court will second-guess the trial court.” (Citation omitted.)
Buzick v. Buzick, 542 N.W.2d 756, 758-59 (N.D.1996).
[¶ 36] Dale V. Sandstrom