(concurring specially).
I concur in the result reached by the majority.
However, since I feel that Rule 52(a), N.D.R.Civ.P., is being misapplied with respect to our review in certain divorce matters, I feel compelled to lodge a protest at this point.
In the case of Ferguson v. Ferguson, 202 N.W.2d 760 (N.D.1972), we held, at paragraph 3 of the syllab.us:
“Findings that a party to a divorce action has committed adultery, that the best interests of the children of the parties to a divorce action would be served by awarding custody of the children to one party as opposed to the other, and that a particular division of property between the parties to a divorce action is equitable, are appropriately dealt with on appeal as findings of fact. Consequently, a review of these findings is limited to a determination of whether or not they are ‘clearly erroneous’ within the purview of Rule 52(a), N.D.R.Civ.P.”
In support of this conclusion we cited cases from three jurisdictions with a rule similar to our Rule 52(a): Spencer v. Spencer, 258 Md. 281, 265 A.2d 755 (1970); Franklin v. Franklin, 257 Md. 678, 264 A.2d 829 (1970); Meredith v. Meredith, 91 Idaho 898, 434 P.2d 116 (1967); Ingram v. Ingram, 385 S.W.2d 69 (Ky.1964).
Upon further analysis of these and other cases from these and other jurisdictions, I have become convinced that no other jurisdiction has so severely limited the scope of review in divorce matters, as a continuing proposition.
In Spencer v. Spencer, supra, the Maryland Court of Appeals considered only the correctness of a decree granting divorce, No separate issues were raised or consid*366ered as to custody, alimony, child support, counsel fees and costs. In that case the decree was affirmed, the Court of Appeals stating at 258 Md. 281, 265 A.2d at 756:
“Having examined the voluminous testimony with great care we are unable to say that Judge Mathias’ decision was clearly erroneous, although we might well have reached a different result had we been the trier of facts.”
In Franklin v. Franklin, supra, some confusion may have been caused by the following statement, again made by the Court of Appeals, at 264 A.2d at 832:
“While we agree with Judge Melvin’s findings of fact, we could not disturb them even if we did not agree, since they are not clearly erroneous.”
In 1970, by legislative enactment, initial appellate review of divorce matters was transferred from the Maryland Court of Appeals to the Maryland Court of Special Appeals. Laws of Maryland 1970, Chapter 99.
Subsequently, in the case of Sullivan v. Auslaender, 12 Md.App. 1, 276 A.2d 698, 700 (1971), the Court of Special Appeals wrote an exhaustive opinion on the “clearly erroneous” rule as it relates to custody matters in divorce cases, reaching the following conclusion:
“So while we recognize the importance of the opportunity by the chancellor to see and hear the witnesses in custody cases and the reluctance of the Court of Appeals and this Court to disturb his findings of fact, we are not bound by the strictures of the clearly erroneous rule, but rather exercise our best judgment, in determining that ‘ultimate’ question of ‘transcendent’ and ‘paramount’ and ‘controlling’ importance, whether the conclusion of the chancellor was the best one for the welfare, benefit, and interest of the child.” [Emphasis supplied.]
And in Widdoes v. Widdoes, 12 Md.App. 225, 233, 278 A.2d 100, 104 (1971), the same court stated:
“* * * jn our review the clearly erroneous rule applies to the chancellor’s factual findings. But for the reasons set out in Sullivan v. Auslaender [supra] * * *, we must exercise our best judgment in determining whether the conclusion as to custody the chancellor reached on those facts was the best one, best, that is, for the welfare, benefit and interest of the child.” [Emphasis supplied.]
Thus the Maryland Court of Special Appeals appears to have held that the determination that the interest of a child will best be served by awarding custody to one or the other parent is a conclusion, rather than a finding of fact. Whatever characterization is given to that determination— finding of fact, ultimate fact, or conclusion —it nevertheless was held to be subject to review in Maryland. The rule continues to be applied. Kirstukas v. Kirstukas, 14 Md.App. 190, 286 A.2d 535 (1972); Barsallo v. Barsallo, 18 Md.App. 560, 308 A.2d 457 (1973). Application of the rule appears not to have been reversed by the Court of Appeals.
I cannot but conclude that the reliance this court placed on Maryland case law in support of our rule in Ferguson was misplaced.
Likewise, our reliance on Idaho cases appears to have been misplaced. In Saviers v. Saviers, 92 Idaho 117, 438 P.2d 268, 271 (1968), which was an appeal from a divorce decree, the Idaho Supreme Court set forth in its opinion twelve “pertinent” findings of fact from the amended findings of fact of the lower court, and concluded:
“These facts are amply supported by competent and substantial evidence and will not be disturbed on appeal. I.C. § 13-219, and the numerous cases annotated thereunder; Rule 52(a) I.R.C.P.; Meredith v. Meredith [supra] * * * ”
*367Among the findings of fact set forth in the opinion is the following, at 270:
“IX
“Defendant is a fit and proper person to have the care, custody and control of the children of the parties and it is for the best interests of the children that he be granted such care, custody and control.”
If Idaho followed the rule which we attributed to it in Ferguson, the Idaho court’s inquiry should logically have ended at that point. Yet, at 438 P.2d at 274 we find the court reviewing the custody determination :
“ * * * the question of custody is, in the first instance, committed to the discretion of the trial court; and its determination of that issue will not be disturbed on appeal in the absence of an abuse of that discretion.” [Emphasis supplied.]
And at 272, the court reviews alimony provisions within the following rule:
“The allowance of alimony is, in the first instance, committed to the sound discretion of the trial court, and, although reviewable on appeal, such discretion will not be interfered with in the absence of a manifest abuse thereof, [citation omitted].”
A number of other states which have adopted the “clearly erroneous” test of Rule 52(a), nevertheless continue to hold that in child custody matters the trial court is vested with a broad discretion, and that its judgment will not be disturbed on appeal unless the trial court abused that discretion. Richardson v. Richardson, 211 Kan. 172, 505 P.2d 690 (1973); Kansas Statutes Annotated, § 60-252; Roussel v. State, 274 A.2d 909 (Maine 1971); Field and McKusick, Maine Civil Practice, Rules of Civil Procedure, Second Edition, Rule 52(a); Hyder v. Hyder, 505 P.2d 390 (Colo.App.1972); Colorado Revised Statutes, Vol. 1, Rules of Civil Procedure, Rule 52(a); Orezza v. Ramirez, 19 Ariz.App. 405, 507 P.2d 1017 (1973); Arizona Revised Statutes Annotated, Vol. 16, Rule 52(a); LaBelle v. LaBelle, 207 N.W.2d 291 (Minn.1973); Minnesota Statutes Annotated, Vol. 27A, Rules of Civ.Proc.— Dist.Cts., Rule 52.01.
In support of the majority’s contention that our scope of review is limited by Rule 52(a), they cite two Kentucky cases in addition to Ingram v. Ingram, supra: Morris v. Morris, 439 S.W.2d 317 (Ky.1969), and Combs v. Combs, 471 S.W.2d 715 (Ky.1971). Upon review of all reported Kentucky divorce cases since the Combs case, I find nine in which review was stated in terms of “abuse of discretion”,1 seven which refer to the clearly erroneous rule,2 *368and two which refer to both.3 These cases appear to demonstrate some concern for distinguishing between factual and conclu-sionary findings.
Between the rule in these states on the one hand, and North Dakota on the other, lies the Alaska rule which appears to attempt a compromise between the two positions. In Carle v. Carle, 503 P.2d 1050, 1052 (Alaska 1972), the Alaska Supreme Court stated:
“In our jurisdiction it is well established that the trial court is possessed of broad discretion to determine where custody should be placed. We will disturb the trial court’s resolution of custody issues only if convinced that the record shows an abuse of discretion, or if controlling findings of fact are clearly erroneous.” [Emphasis supplied.]
I have found that to whatever extent other states may have departed from the “abuse of discretion” test to the “clearly erroneous” rule, they have done so in halting and uncertain steps. I cannot but conclude that the test which we devised in paragraph 3 of the syllabus in Ferguson, a part of which appears in the majority syllabus here in paragraph 5, is no longer appropriate. I would continue to hold the “clearly erroneous” rule applicable to “findings that a party to a divorce action has committed adultery”; however, I believe that a finding “that a particular division of property between the parties to a divorce action is equitable” or a finding “that the best interest of a child of the parties to divorce action would be served by awarding custody of the child to one party as opposed to the other” are discretionary matters with the trial court, and that our review should be a review for abuse of that discretion.
KNUDSON, Judge. I join with Judge TEIGEN in his special concurrence.. Of these cases, three review the trial court award of custody of children: Griffith v. Allen, 472 S.W.2d 253, 254 (Ky.1971), Dowell v. Dowell, 490 S.W.2d 478, 480 (Ky.1973), Sharp v. Sharp, 491 S.W.2d 639, 642 (Ky.1973); three consider the adequacy of the alimony award: Grimes v. Grimes, 472 S.W.2d 477, 478 (Ky.1971), Budig v. Budig, 481 S.W.2d 95, 97 (Ky.1972), Bell v. Bell, 494 S.W.2d 517 (Ky.1973); two consider the question of whether alimony should have been periodic rather than in a lump sum: Dahlenburg v. Dahlenburg, 479 S.W.2d 606, 607 (Ky.1972), Chinn v. Chinn, 480 S.W.2d 157 (Ky.1972); and one considers the adequacy of child support payments: Bradley v. Bradley, 473 S.W.2d 117, 118 (Ky.1971).
. These cases consider whether the trial court assigned the correct value to property: Moore v. Moore, 477 S.W.2d 792, 794 (Ky.1972), Beggs v. Beggs, 479 S.W.2d 598, 601 (Ky.1972); whether the parties had orally modified child support provisions of their divorce decree: Ruby v. Shouse, 476 S.W.2d 823, 825 (Ky.1972); whether the findings were sufficient to support the alimony award made: Robinson v. Robinson, 474 S.W.2d 355 (Ky.1971); whether the evidence supported the property division made: Walden v. Walden, 486 S.W.2d 57, 59 (Ky.1972); whether a husband’s net worth was as low as that determined by the trial court: Purdom v. Purdom, 498 S.W.2d 131, 133 (Ky.1973); whether the divorce should have been granted to the other party: Bentley v. Bentley, 500 S.W.2d 411, 412 (Ky.1973).
. These cases consider the modification of child support and custody provisions: Eversole v. Eversole, 474 S.W.2d 685, 686 (Ky.1971); and the award of custody and finding of fitness of one parent to raise the child: Simmons v. Simmons, 479 S.W.2d 585 (Ky.1972).