Cynthia Jo BEALS, Plaintiff and Appellee, v. John K. BEALS, Defendant and Appellant
Civ. No. 930280
Supreme Court of North Dakota
June 15, 1994
517 N.W.2d 413
Our review of Bosch‘s appeal is governed by the Administrative Agencies Practice Act,
Bosch argues that
Section 39-20-03.1(3) says in part:
“[T]he law enforcement officer shall forward to the director a certified copy of the operational checklist and test records of a breath test and a copy of the certified copy of the analytical report for a blood, saliva, or urine test for all tests administered at the direction of the officer.”
Section 39-20-03.1(3) establishes the prerequisite for the exercise of DOT‘s jurisdiction; namely, the certified written reports and test records of all breath, blood, saliva, or urine tests. Schwind v. Director, N.D. Dep‘t of Transp., 462 N.W.2d 147, 149-51 (N.D.1990). Section 39-20-03.1(3) requires the officer to forward the test records for “all tests” conducted at the officer‘s direction, regardless of whether the officer judges the results to be invalid. We have said that an administrative agency must follow the basic mandatory provisions of the statute. See Id. at 150. The statute‘s command that all tests be forwarded to DOT is basic and mandatory. It precludes the officer‘s exercise of choice and requires the transmittal of “all tests.” The legislature has made it the hearing officer‘s domain, not the officer‘s, to judge the foundational facts for the admissibility of test results and the weight to be given to each of those results. Therefore, we conclude that the officer‘s failure to submit the Intoxilyzer test records deprived DOT of authority to suspend Bosch‘s driving privileges.
Reversed.
VANDE WALLE, C.J., and NEUMANN, SANDSTROM and MESCHKE, JJ., concur.
Patti J. Jensen of Lindquist & Jeffrey, East Grand Forks, MN, for plaintiff and appellee.
Michael E. Keller of The Bergquist Law Firm, Larimore, for defendant and appellant. Appearance by Harold J. Bergquist.
VANDE WALLE, Chief Justice.
On appeal from a district court judgment granting his petition for divorce, John K. Beals (Ken) challenges portions of the district court judgment relating to child support, spousal support, income withholding, and division of his unvested military retirement pay. We direct modification of the judgment relating to the division of Ken‘s unvested retirement pay and affirm except as modified.
Ken and Cynthia Jo Beals (Cindy) were married in August 1977. At the time, Ken was a full-time college student. After graduating from college in June 1980, Ken commenced active-duty service in the United States Air Force. In 1986, Ken earned a master‘s degree from the Air Force Institute of Technology. At present he is a major in the Air Force.
Three children were born to the marriage: Jessica, born in 1982; Melinda, born in 1986; and Katelyn, born in 1992. Cindy worked as a receptionist and secretary until Jessica was born in 1982; since that time, Cindy has not worked outside the home.
In October 1991, Cindy began to suspect that Ken was involved with another woman, a sergeant in the Air Force. Cindy approached an Air Force captain regarding the matter. Air Force personnel conducted interviews regarding Ken‘s relationship with the sergeant and determined that the rela-
I. SPOUSAL SUPPORT
Ken asserts that the $800-per-month spousal support award, when coupled with his other expenses, exceeds both his own ability to pay and the needs of Cindy. Also, Ken argues, the district court‘s determination that the support obligation should continue for six years was arrived at arbitrarily. Ken emphasizes that the record contains no firm evidence regarding the length of time it would take Cindy to attain her desired educational goals. Ken contends that, because the six-year duration was reached without factual support in the record, the award was clearly erroneous. See Smith v. Smith, 326 N.W.2d 697 (N.D.1982). We reject Ken‘s arguments with regard to both amount and duration.
When a divorce is granted, section
“the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, ... and such other matters as may be material.” Weir v. Weir, 374 N.W.2d 858, 862 (N.D.1985).
This court has looked favorably upon awards of “rehabilitative” spousal support, as the district court awarded here; rehabilitative awards are typically limited in duration and are designed to afford disadvantaged spouses the opportunity to gain the education, training, and experience necessary to become self-sufficient. E.g., Heley v. Heley, 506 N.W.2d 715 (N.D.1993); Wahlberg v. Wahlberg, 479 N.W.2d 143 (N.D.1992); Roen v. Roen, 438 N.W.2d 170 (N.D.1989). We have noted that “[t]here are no rigid rules for determining whether or not to award alimony and the amount of such an award. The determination of a just award is within the discretion of the trial court and will depend upon the facts and circumstances of each case.” Briese v. Briese, 325 N.W.2d 245, 249 (N.D.1982);
The district court did not specify precisely why $800 per month for six years is an appropriate amount and duration for spousal support. However, the court did enumerate the following facts and circumstances relevant to the determination: Ken has earned both a Bachelors Degree and a Masters Degree during the course of the marriage; Ken has recently been promoted to Major in the Air Force; Ken‘s net income is $3513.78 per month, or over $42,000 per year; Cindy quit working outside the home in 1982, when the couple‘s first child was born; Cindy has remained at home to raise the children since that time; Cindy does not have a college degree but desires to attend college and, at present, aspires to become a real estate appraiser; Cindy has been diagnosed as suffering from “undifferentiated connective tissue disease“, which “will probably limit her ability to attend classes and to obtain employment“.
Ken argues that under Smith v. Smith, supra, the evidence must more definitively establish the appropriate amount and duration of the award. In Smith, we set aside the trial court‘s rehabilitative support order because the facts did not support the duration of the award. There, the trial court ordered spousal support for 30 months, purportedly long enough to permit the disadvantaged spouse to earn her college degree. We concluded that the 30-month award was clearly erroneous because there was no evidence in the record to support the trial court‘s implicit conclusion that the disadvantaged spouse, while raising four children, could earn her four-year college degree in a mere 30 months.
Smith is distinguishable from the case at hand. Here, the court reasonably inferred that six years of assistance is appropriate, due in part to the likelihood that Cindy‘s education and career will be hampered by her failing health and by the burden of being custodial parent to three young children.
Despite Ken‘s assertions, we are not convinced that the district court ignored Ken‘s projected needs and expenses. Although the court did not view the evidence in the manner Ken would have preferred, we will not reverse the district court merely because we might have viewed the evidence differently. Ludwig v. Burchill, 481 N.W.2d 464 (N.D.1992). We have reviewed the record, including the financial reports of the parties, and do not find the amount or duration of spousal support to be clearly erroneous. Should circumstances change, Ken may move to have the judgment modified; at present, there is a factual basis in the record for the award.
II. CHILD SUPPORT
Next, Ken challenges the district court‘s refusal to abate his child support obligation for the summer months, when he is allowed visitation of the children. The
Deviation from the guidelines requires the court to make a written finding or a specific finding on the record that undue hardship will result.
Ken also argues that the trial court abused its discretion by ordering income withholding to secure child support payments. See
Under section
Here, it is at best questionable that Cindy agreed to waive her children‘s right to automatic withholding. Ken admits that the parties did not execute a formal written agreement regarding income withholding, but argues that Cindy testified at the hearing that she did not want court-ordered withholding:
“Q [by Karen Wills, Cindy‘s attorney:] Is the interim child support paid pursuant to a wage withholding order?
A [by Cindy:] I believe so.
Q Would you prefer that child support and spousal support be paid through allotment?
A Yes, I would.”
Based on the cold transcript before us, we believe Cindy‘s testimony is subject to varying interpretations. In any event, before a waiver of the statutory right to income withholding will be recognized, the agreement is required to be in writing. We affirm the district court.
III. FUTURE RETIREMENT PAY
As part of the property settlement, the district court ordered that Cindy be awarded a portion of Ken‘s future military retirement pay. The court ordered that Cindy‘s share be computed using a formula similar to the formula used in Bullock v. Bullock, 354 N.W.2d 904 (N.D.1984), with Cindy‘s award equaling one-half Ken‘s total retirement pay, multiplied by the number of years of marriage during which Ken was on active duty, divided by the total number of years of active duty service. However, the district court used the date that the couple married, August 6, 1977, instead of the date that Ken commenced active duty, June 27, 1980, for determining the number of years of marriage that Ken was active duty. The parties agree that the court erred in this regard; we order that the judgment be modified in accordance with the parties’ stipulation that the period of time during which Ken was both married to Cindy and on active duty began June 27, 1980, and not August 6, 1977.
Also, Ken argues that the district court erred in applying the Bullock formula because, Ken asserts, the number of years of
We disagree. Although the evidence that Ken had engaged in misconduct with an enlisted person was not conclusive, the evidence indicates that Cindy‘s suspicions of Ken were not “unfounded“. Cindy reported her suspicions to military personnel, but the inference can be drawn that she did so in order to save the marriage, rather than to ruin her husband‘s career. For purposes of computing Cindy‘s share of Ken‘s retirement pay, the district court‘s determination that the marriage ended on the date of the divorce hearing, rather than on an earlier date, is not clearly erroneous.
Judgment affirmed except as remanded for modification in accordance with this opinion.
SANDSTROM, NEUMANN, LEVINE and MESCHKE, JJ., concur.
LEVINE, Justice, specially concurring.
In order to fairly consider the matter of spousal maintenance, a trial court must understand, as a general proposition, the economic realities of the marketplace as they affect those women who have foregone training in favor of homemaking or have absented themselves from the workplace and foregone career advancement in favor of homemaking, or have worked at low-paying jobs to supplement the primary breadwinner‘s income.
Generally, the economic consequences of divorce for women are devastating. A wife‘s post-divorce income is about half that of her former husband. Colorado Supreme Court Task Force on Gender Bias in the Courts, Colorado Office of the State Court Adm‘r, Gender and Justice in the Colorado Courts 14 (1990). Because, as a rule, women have lower earning capacities, their net worth declines by 25% within four years of divorce, while their former husbands’ improve. Florida Supreme Court, Report of the Florida Supreme Court Gender Bias Commission 4, 47 et seq. (1990); Rhode Island Committee on Women in the Courts, Rhode Island Supreme Court, A Report on Gender Bias 39 et seq. (1987). Within eight years after divorce a woman will often have a negative net worth. Fairness and Equality Committee, Idaho Supreme Court, Digest of State Reports on Gender Bias 9 (1991).
While I agree that the trial court‘s award of six years’ maintenance is not clearly erroneous, I write specially to suggest that in a marriage of long duration like the one at bar, rehabilitative support for a term of years may not accomplish the rehabilitation intended. Not all disadvantaged spouses are able to or fit to seek college degrees or specialized training. Even if they are, the marketplace is often not a hospitable place and their lack of that experience that is customarily commensurate with age, will likely result in low wages if, in fact, they succeed in being hired. Therefore, should circumstances change so that Cindy‘s college career does not achieve either the degree or job or income anticipated, she may move to have the judgment modified to provide permanent support to equalize the parties’ reduced standard of living, see Weir v. Weir, 374 N.W.2d 858 (N.D. 1985), or to provide the same standard of living if Ken‘s income is sufficient. See Bagan v. Bagan, 382 N.W.2d 645 (N.D.1986). The point is that Cindy will have been absent from the workplace for close to two decades by the time she graduates from college and there should be no false assumption about the ease with which she can gain employment at a decent wage. The rehabilitative support will achieve its goal only if it enables Cindy to overcome her lack of training, foregone education and absence from the job market by obtaining a degree, finding a job, and earning a decent wage. If she fails to achieve any of these goals, after making reasonable effort, she should be entitled to permanent support.