(concurring and dissenting).
I concur in part II of the majority opinion and also with the conclusion in part I that the trial court’s findings of fact do not support the disparity in the property awards. I believe the trial court’s findings relating to conduct are clearly erroneous and so I dissent from the majority’s conclusion that tenders to the trial court the opportunity to make more specific findings to justify the disparity. The facts and law of this case provide no such justification and the trial court should be instructed only to redistribute the property.
In a traditional marriage the wife performed child care, home care and husband care. Within the last decade we have seen a dramatic change in our society. In 1984 approximately 30% of married working women had families with children under eighteen years. Statistical Abstract of the United States, pp. 390-399 (105 ed. 1985). While a husband and wife may often themselves decide that the “working wife” bear the brunt of the responsibilities of managing home and children, thereby in fact fulfilling two jobs, home and work, the law should not and indeed does not impose any such duties on either working spouse. Yet, the trial court found that Pius did an unusual amount of cooking. This finding clearly attributes fault to Aleta presumably for not doing all of the cooking. While that finding may have had some logic in the context of a traditional home setting, it has no relevance in a situation where each parent has employment outside of the home. There is no such thing as a “traditional working wife” in our case law or statutes.
The trial court’s finding that “nearly all of the property acquired during the marriage came as a result of Pius’ work effort” is likewise clearly erroneous. It is clear that in the enterprise of marriage a traditional homemaker’s contributions arising from child care and home care constitute a valuable contribution. Briese v. Briese, 325 N.W.2d 245, 247 (N.D.1982); Haugeberg v. Haugeberg, 258 N.W.2d 657, 667 (N.D.1977) (Vogel, J., dissenting). See generally O’Kelly, Three Concepts of Alimony in North Dakota Law, 1 N.D. Faculty J. 69, 79 (1982). Here, Aleta not only cared for home and children, she also held a fulltime job outside the home for twenty-six years out of this twenty-eight year marriage. Whether her earnings were used for family purposes or her exclusive use, they necessarily constituted a contribution in that they supplemented Pius’ earnings and made available more funds for property acquisition. If a non-wage-earning homemaker’s contribution is substantial, it follows a fortiori, that a wage-earning homemaker’s contributions are substantial. Yet the trial court noted only that Pius held down more than one job throughout most of the marriage. It overlooks entirely that the same was true for Aleta. The only difference between their respective extra jobs was Pius’ remuneration for his.
I would instruct the trial court to divide the property equally since a proper application of the Ruff-Fischer guidelines justifies no disparate treatment or property division. While there is no requirement that a property division be equal to be equitable, when there is substantial property, as there is in this case, and when the Ruff-Fischer guidelines indicate no reason for unequal division, it is clearly erroneous to divide the property as the trial court did in this case.