Rummel v. Rummel

PEDERSON, Justice,

concurring specialty.

While I can agree that in this case (as I have in other cases) justice permits us to overlook technical noncompliance with Rule 52(a), NDRCivP, I do not agree with that language used in the majority opinion which leaves the impression that compliance is not required. Noncompliance can be more than a technicality as is illustrated by this Court’s decision in Struchynski v. Decker, 194 N.W.2d 741 (N.D.1972). Maybe the decision after remand in that case was not *238different from the previous decision — that the plaintiff had not proven his case. Would that mean that this Court required some “useless ritual?” I do not consider remands to require findings that understandably support the conclusion to be “useless ritual.” See Ellendale Farmers Union Cooperative Association v. Davis, 219 N.W.2d 829 (N.D.1974). And I don’t consider it useless ritual to point out that just because we are not remanding for a rewrite of the findings, does not mean that we consider the findings to be perfect.

I do not treat Rule 52(a) as a ceremonial rule. Compliance can improve both the “appearance of justice” and justice itself. The rule requires the trial court to “find the facts specially and state separately its conclusions of law thereon.” It is not significant what label is placed on the paper on which findings are written. It is significant that we know that they were adopted, signed and filed. To the extent that findings reflect a reasoning process to arrive at the conclusion reached, they are of great significance to the acceptability of the conclusion and the confidence that people will have in the judicial process. To the extent that the findings truly reflect, understandably, the basis of the trial court’s conclusions, they are entitled to a strong presumption in favor of their correctness.

To be satisfied that the decision is the right one is the first priority and for that reason I can concur in the results reached by Justice Sand’s opinion. Secondarily, but importantly, because I think Rule 52(a) is a good rule and the only reasonable alternative to trial de novo on appeal, the rule merits enforcement. As long as we have it as a rule, we ought to insist on and work toward the fullest application thereof consistent with justice. I am not content to leave an appearance of lip service to the rule. See 9 Wright and Miller, Federal Practice and Procedure, § 2579, p. 716.

I believe that Rule 52(a) itself, and the majority opinion in Fine v. Fine, 248 N.W.2d 838, 843 (N.D.1976), must be read to be more than a “possible inference” that a trial court must make express findings on each fact issue which supports the conclusions reached by the trial court. There “. . . must be findings, stated either in the court’s opinion or separately, which are sufficient to indicate the factual basis for the ultimate conclusion.” Kelley v. Everglades Drainage Dist. (1934) 319 U.S. 415, 422, 63 S.Ct. 1141, 1145, 87 L.Ed. 1485. See also Schneiderman v. United States (1943) 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796. There are compelling reasons why we should be guided by United States Supreme Court interpretations of Rule 52(a). We have consistently done that. See Estate of Elmer, 210 N.W.2d 815 (N.D.1973).

The appellant in this case deserves an acknowledgment from this Court that his criticism of the findings is justified. Only because we are balancing theoretical compliance against realism (we do not want to force unwarranted expense and delay upon the parties nor do we want to clog the trial and appellate processes), we conclude that justice doesn’t require remand in this case for the purpose of preparing adequate findings of fact.