concurring and dissenting.
I concur in those portions of the majority opinion which affirm the award of $5,000 to Elisabeth, determine that both awards to Elisabeth were in the nature of spousal support, hold that the temporary support order remained in effect pending the appeal, and that part which denies the cross appeal.
Recognizing the constraints of our standard of review under Rule 52(a), N.D.Rules Civ.Proc., I dissent to that portion of the majority opinion which affirms the award of 25% of Ralph’s mineral income to Elisabeth.
Given the short duration of this marriage, less than two years from the date of the marriage to the date of separation, the age of the parties, and the financial independence of both parties, both before and after the marriage, I am firmly convinced that a mistake was made in awarding 25% of Ralph’s mineral income to Elisabeth. There is no rationale which I can discern to support that award. There are certainly no findings of fact to support the award, or for that matter the award of the $5,000 in cash. The majority opinion in effect acknowledges that when it states:
“Although the trial court’s findings of fact and conclusions of law in this case are hardly a model of clarity or completeness, we think that we comprehend the trial court’s reasons.
There is evidence to support an inference that Elisabeth was economically disadvantaged by the marriage. Testimony established that the parties set up joint savings and checking accounts to pay marital expenses. The evidence indi*720cated that during the course of the marriage Elisabeth contributed over $5,000 more to those joint accounts than Ralph. In addition, Elisabeth’s marriage to Ralph caused a permanent reduction of $100 per month in her survivor’s benefits under railroad retirement.”
The trial court makes absolutely no reference to the reduction of $100 per month in Elisabeth’s survivor’s benefits under railroad retirement. With regard to the excess contribution of $5,000 by Elisabeth which was referred to in the majority opinion, the trial court made the following finding of fact:
“Any pattern of shared expenses during the marriage was conceptual only and fell short of the stature and dignity of a formal agreement between the parties.”
In its memorandum opinion the trial court stated with regard to allocation of expenditures during the marriage:
“Much testimony was presented regarding this aspect. The testimony is so vague, conflicting and confusing as to make it impossible for the Court to make a meaningful finding regarding the relative contributions of the parties vis-a-vis any alleged agreement as to these living expenses.”
Assuming that there is support in the record for some disparity in the contributions by the parties to the joint accounts and some disadvantage to Elisabeth with regard to the railroad retirement payment, this disparity would be amply compensated for by the award of the $5,000, the temporary support that Ralph is ordered to pay, and the fact that Ralph was ordered to pay $2,000 of Elisabeth’s attorneys fees.
This was the second marriage for Ralph, his first being one of 44 years, during which he accumulated all of his assets, including the mineral interests in question here. It was a third marriage for Elisabeth. She, too, had accumulated her assets prior to this marriage. Both parties made inter vivos gifts of most of their assets to their respective children. In reviewing the guidelines enumerated in Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952) and Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966), the trial court really found that they favored neither party, with the possible exception that in making their respective inter vivos transfers to children in anticipation of this divorce, perhaps Elisabeth retained less control and put herself in a more tenuous financial position than did Ralph. I’m not sure that she should be rewarded, nor should Ralph be punished, for that.
These two parties attempted a marriage in the autumn of their lives. It didn’t work and lasted less than two years before separation. They each came into the marriage with significant income and property. They treated their property separately during the marriage. The trial court found that there was not any significant amount of fault on the part of either party and further that neither party would be disadvantaged by the divorce other than the mutual loss of society and companionship and certain economic security. I believe that, with the exceptions noted above, each should have emerged from this marriage as they entered it. I, therefore, respectfully dissent from that portion of the majority opinion which affirms the award of 25% of Ralph’s mineral income to Elisabeth.