*1
months,
summer
days, during
or 56
within the N.D. Admin. meaning of Code 75-02-04.1-08.1,
§ adjusting
a matter of law in not Andrew’s
child to reflect obligation the ex-
tended visitation. therefore reverse We
the court’s child award and re-
mand for recalculation Andrew’s child
support obligation under N.D. Admin. §
Code 75-02-04.1-08.1.
IV affirm
[¶ 15] We court’s distri- parties’ property,
bution marital
we order An- setting reverse the court’s obligation
drew’s child and re-
mand for of his child recalculation
obligation in with opinion. accordance this WALLE, GERALD VANDE W. J., NEUMANN,
C. WILLIAM A. SANDSTROM,
DALE V. and CAROL KAPSNER, JJ.,
RONNING concur. *3 Washburn, Dakota,
moved North En- began working Donald at Great River Underwood, ergy North Dakota. trial, At the time of the old. He is a school high graduate two-year degree and received a from State School Wahpeton mechanics trial, in 1970. At the time he of Science employеd been En- had with Great River *4 ergy years working for 22 and was full- gross time at an hour. Donald’s $25.18 1998, 1997, years income for the and 1999 $58,688.39, $68,400.00, $62,368.38, was respectively. Kelsch, Bair, Bair,
Mary Kathryn
Garri-
Kathleen
at the
[¶ 4]
was 50
old
Kelsch, LLP, Mandan,
ty &
for defendant
high
gradu-
time of trial. She
a
school
appellant.
a
certifícate from
ate
received
clerical
the North Dakota State School of Science
Firm,
McPhail,
Law
Shari
McPhail
J.
1978,
in 1969. From
until
she
Bismarck,
appellee.
plaintiff and
for
secretary
worked as a clerk and
for
Northwood,
hospital
in
North Dakota.
MARING, Justice.
stayed
From 1978 until
she
at home
appeals from a
Donald Sommer
provided
with her children and
child care
26, 2000, which
judgment dated December
Also,
year
in their home.
for about one
divorce,
their
granted
the
divided
time,
day
at
this
she worked one
a week
proрerty,
marital
and ordered Donald to
County
the McLean
Courthouse. From
support.
pay spousal
challenges
1983 until
in medi-
Kathleen worked
hold
spousal support.
the award of
We
cal
at the
home in
nursing
records
Under-
the trial court’s decision
award
wood. From 1984 to
Kathleen
and af-
was
erroneous
mail
in
for
worked as a
carrier Underwood
judgment.
firm
remand the case
We
United States Postal Sеrvice.
to the trial court to determine whether
clerking posi-
she was transferred into a
attorney
should
awarded
fees
Kathleen
at
office in
post
tion
Washburn.
for this appeal.
with
[¶ 5] Until
Kathleen’s status
I
a part-time
that of
the Postal Service was
however,
employee;
usually carried
[¶ 2] Donald and Kathleen Sommer
she
at
September
working
were married on
1971.
full-time hours
extra hours
Dakota,
Bismаrck,
in
marriage produced
post
Their
three children.
office
North
trial,
Marty,
by setting up
time
was
recycling programs
who was 26 at the
postal
at the
Jeremy,
throughout
born in 1974.
who was 23
facilities
the United
trial,
Dallas,
time of
in 1977.
In November of
Kathleen
was born
States.
trial,
in a car
in
who
20 at
time of the
was was involved
accident which she
was
injured
in
Don-
neck and
After the
marriage,
born
1980. After their
her
shoulders.
Northwood,
аccident,
post
in
to work
ald and Kathleen
she returned
lived
Dakota,
They
part-time employ-
North
until
then
office
as a
Washburn
A temporary assignment
light duty
it,
ee.
although
supports
some evidence
based
placed
was
on her
Dr. William D. Can-
record,
on the entire
we are left with a
ham, a
who
doctor
examined Kathleen at
definite and firm conviction a mistake has
request
of the Postal Serviсe. Kath-
been made. See Riehl v.
given
option
leen testified she was not
107, 7,
to work additional hours at the office Trial courts must consider light duty Bismarck after the restriction the Ruff her; therefore, guidelines Fischer placed making she was no determination of support, longer carry able to full-time hours as both as she to amount did before the accident. and duration. id. at 8 & n. 1 (citing Ruff, 78 N.D. Ruff trial, At the time of the (1952); Fischer, N.W.2d 107 Fischer v. average eight per worked an hours (N.D.1966)). N.W.2d 845 The in factors post per week for the office at hour. $20.25 clude: per She also earned about month $300 working for the Council for Educational respective ages parties, USA, foreign Travel exchange student mar-, earning ability, the duration of the *5 program. gross Kathleen’s income for the riage parties and conduct of the during 1997, 1998, $36,258.93, and 1999 was marriage, life, the their in station the $11,053.93, $15,537.63,respectively. and each, circumstances and necessities of condition, physical their health and their Donald and Kathleen lived to- financial 20, 2000, by in circumstances as shown the gether Washburn until March time, property owned at the applied its value at temporary Kathleen for a time, the its protection income-producing capacity, against order Donald. A hear- 27, 2000, if ing any, whether was held on March and a six- accumulated before or permanent protection marriage, month after the order was such other mat- en- 27, 2000, tered. Also on March may ters as be material. commenced an action for divorce. The ¶ See id. at (quoting Klootwyk Van
trial court entered a judgment of divorce ¶ Van ND Klootwyk, 1997 26, 2000, on December that awarded Kath- 377). Although N.W.2d a trial court need permanent leen spousal support of $850 specific not make findings as to each fac- per appeals month. Donald that award. tor, the rationale for its determination must be discernable. See id.
II
divorce,
Upon granting a
Spousal support
determi
may compel
a court
parties
either of the
nations are
to
findings
treated as
of fact
pay
рarty spousal
the other
which will not
“dur
appeal
be set aside on
un
ing
clearly
period
less
life or for a shorter
erroneous. See Johnson v.
as to the
¶
Johnson,
170, 49,
may
just,
having regard
2000 ND
seem
to the
finding
parties
97. A
of fact
respectively.”
erroneous
circumstances
the
52(a)
14-05-24;
§
only
under N.D.R.Civ.P.
if it
in
N.D.C.C.
see also Marschner
¶
law,
Marschner,
duced
an erroneous view of the
2001 ND
it, or,
there is no
evidence to
In
N.W.2d 339.1
thе circum-
considering
Subsequent
entry
judg-
to the
the
appears
§
divorce
now
in N.D.C.C.
14-05-24.1. Sec-
case,
legislature
ment in this
the
provides: "Taking
amended
tion 14-05-24.1
into con-
§
language
N.D.C.C.
14-05-24. The
sec-
parties,
sideration the
of the
circumstances
pertinent
tion 14-05-24 that is
require
party
pay spous-
to this case
the court
one
to
parties’ marriage,
trial court
parties, a trial court must
the
stances of
needs оf the disad-
disadvantaged
take into account “the
Kathleen to
a
finding
spouse
vantaged
However, a
spouse.
complete abandon-
ability
pay.”
to
Mar-
needs and
spouse's
is not a
ment of work outside the home
¶
sehner,
disadvantaged spouse is
at 10. A
disadvantaged
to
a
prerequisite
being
opportunities or
“foregone
has
one who
rather,
spouse;
spouse
who remains оut
consequence
advantages as a
lost
degree
order to
any
workforce
during
marriage
who has contributed
provide
homemaking
child care or
services
marriage
supporting spouse’s
opportunities and has
foregone
“has
lost
earning capacity.”
increased
See
experi-
that
from work
advantages
accrue
10 (quoting
Weigel
employment history.”
ence and
Klоotwyk, 1997 ND
Van
¶16, 13,
Weigel,
ND
tably
argues
shares
overall reduction in the
Donald
the trial
of
separate
living and is
parties’
standards
determining
court erred in
the amount and
erroneоus.”) (internal
clearly
quotation
not
spousal support
duration of
because the
omitted); Wahlberg Wahlberg,
marks
support
finding of
evidence did not
do
(N.D.1992) (“Continu-
143, 145
479 N.W.2d
on the
Donald
part
mestic violence
of
un
of
is a valid
ance of
standard
der
The
guidelines.
the Ruff-Fiseher
evi
in spousal
determi-
consideration
dence at trial established that
six-month
nations, e.g., Bagan Bagan, 382
protection
was
violencе
order
domestic
is
(N.D.1986),
balancing
bur-
as is
sued
Donald March
against
separation
created
when it is
dens
Additionally, Kathleen
as to
testified
other
at
impossible to maintain two households
Thus,
incidents of domestic violence.
standard, e.g.,
pre-divorce
Weir
there
of
was evidence
the record
domes
(N.D.1986).”).
Weir,
time. The
argues
[¶ 13] Donald also
the tri
adequate
unlikely.”
rehabilitation is
Kou
Kouba,
(N.D.
ba v.
al court erred because it did not consider
1996).
contrast,
rehabilitative
part
financial misconduct on the
of Kath
appropriate
possible
“when it is
leen when
determined the amount and
to
an economically
restore
However,
of spousal support.
duration
independent
to
economic status or
some of Kathleen’s financial decisions
equalize
the burden of
in
divorce
proved
parties.
to be lucrative for the
creasing the disadvantaged spouse’s earn
Also, a number of the real estate transac
¶
Riehl,
(citation
ing capacity.” See
at 12
tions she entered into were for the benefit
omitted). However, even when the disad
parties’
Additionally,
children.
vantaged spouse
capable
of rehabilita
evidence at trial established Donald ac
tion, our Court
recognized permanent
quiesced in
handling
par
Kathleen’s
spousal support
an appropriate
remedy
ties’ financial affairs. Under these circum
to ensure the
equitably share the
stances,
it was not
erroneous for
overall
separate
reduction
stan
the trial court to
decline
find financial
dards of living. See id. at
(citing
part
misconduct on the
of Kathleen.
Weir, 374
(“permanent
sup
port appropriate because disadvantaged
Next,
argues
14]
[¶
spouse ‘is likely to have a much lower
that, even if
application
court’s
income producing capacity than [the other
guidelines support
Ruff-Fischer
an
spouse],
earning capacity
which
she aided
spousal support,
award of
the trial court
”)).
...
in obtaining’
in awarding permanent
rather than
The
evidence
the record
spousal support.
rehabilitative
recog
We
supports the trial
findings,
court’s
which
permanent spousal support
nize
and reha
support an award of permanent spousal
spousal support
bilitative
as two distinct
per
month. Donald and
$850
remedies. See
twenty-nine year
Kathleen’s
marriage was
spousal sup
N.W.2d 10. Permanent
long
duration.
ability
Kathleen’s
port
generally appropriate
when the
work full-time for the Postal Service is
disadvantaged spouse
equitably
cannot be
*7
limited as a result of the
acci
automоbile
rehabilitated
up
opportu
to make
for the
dent.
a
disparity
There is
vast
in income
nities lost
the
of
marriage.
course
the
earning potential
between Donald and
¶
See id. at 18 (citing Kautzman v. Kautz
fact,
Kathleen.
In
Donald’s
expert
own
¶¶
man,
192,
19, 20,
1998 ND
585 N.W.2d
witness
that
if
testified
even
561 (“permanent spousal support appro
were
private
to work full-time in the
sec
priate where
‘earning
wife’s
will
capacity
tor,
approximately
she would earn
the
approach
never
par
and the
[husband’s]’
same
currently
income that she
earns
enjoyed
‘very
ties
comfortable standard working part-time for the Postal Service.
”);
Donarski,
living’
of
Donarski v.
1998 Finally, the trial court considered the fact
¶¶ 6,
(“wife’s
8,
ND
property division every that would reduce support contingency awarded spousal of amount Wiege spousal support. Wiege, v. 518 cannot “consider See A trial court Kathleen. (N.D.1994) (finding that spousal division and property issues of by failing not err vacuum, the cоurt did must separately in a but support for of provide automatic termination together.” Ketelsen issues examine those ¶ support upon of the spousal remarriage Ketelsen, 6, 598 N.W.2d ND v. Roen, supported Roen v. spouse); equitably in this case The trial court 185. that (holding estate of marital property divided the by failing trial court not err did findings of fact on the issue it made before of provide spousаl termination Also, in its memoran spousal support. of sup- upon remarriage the death or of the por trial court cited the opinion, dum ported spouse pow- because the court had said, “A where we tion of Schiff Schiff award). modify spousal support er to setting of the amount relevant factor disadvantaged spouse for a to de [¶ Should Donald wish 18] and the property marital distribution оf spousal support of his crease amount income-producing or nature liquidity retirement, payments upon his he property distributed at that bring motion for modification 113, ¶ 42, spouse.” 2000 ND 611 N.W.2d Schmitz, time. Schmitz v. Furthermore, cit the trial court also ¶ 8, 176. In 622 N.W.2d order to modi portion Mellum v. ed the Mellum where fy spousal support, obligor an award said, spousal “[P]roperty division and we a mate spouse showing has the burden interrelated, support are and often must change justifying rial circumstances ND together.” considered be “A change’ modification. Id. ‘material (alteration in origi 607 N.W.2d fi something substantially affecting the nal) Lohstreter, (quoting Lohstreter party.” nancial or needs of a Id. abilities 790). The trial ND 574 N.W.2d cases, we that prior 19] have held [¶ properly parties’ considered the court voluntary retirement when it property distribution determined change is not a in circumstances spousal support award. sup- justifying modification of Wheeler, 31; port. See IV Huffman, Huffman the trial argues (N.D.1991). Thus, it could argued for the elimi providing any these cases would bar future motion nation or of the spousal reduction his modify Donald to *8 upon An award Donald’s retirement. However, obligations upon his retirement. permanent spousal support award en- pаrties in Wheeler Huffman subject to van future modification. See agreements regarding into stipulated tered 93, Oosting Oosting, 521 van N.W.2d spousal support prior entry to of the di- (N.D.1994). power A trial to 100 court’s therefore, on judgment; vorce the burden modify spousal support an award of that their supporting spouses show dependent upon any statutory and is not voluntary retirement a material jurisdic express continuing reservation of in change greater circumstances was much judgment. in the they tion divorce See Wheeler it been been than would have had (N.D.1996) Wheeler, 27, 29 to pay spousal 548 ordered based sole- 14-05-24). Therefore, § (citing ly findings. N.D.C.C. on trial court’s See Wheel- decree, er, it in circum- fashioning original (stating change in at 30 that an divorce
431 scrutiny greater argues stances is reviewed with that his [¶ 21] re parties stipulate spousal to a event; when the tirement is a known future there support agreement); Huffman, at 596 fore, the trial court inviting unnecessary (“The trial court should be more reluctant litigation by providing for an automatic modify original an which is based decree spousal support upon reduction of his re upon agreement an than one However, tirement. the exact date of upon findings.”). based the court’s Donald’s retirement is not known as he suppose testified “I I’d work till retire contrast, when a 60, age, ment It depends my all supporting spouse pay ordered been Furthermore, health.” no at evidence trial spousal support based on the trial court’s established how much Donald’s income findings, a in voluntary change employ would actually be reduced at his retire ment that results ment. Mahoney, Seе 538 in lower income be a valid basis for (quoting Mahoney v. Mahoney, modification of if 656, (“ (N.D.Ct.App.1994) ‘Be change employment in was reasonable and change employment cause a in does not in good Mahoney made faith. See v. Ma necessarily result in a change financial 189, honey, 538 N.W.2d 192-93 circumstances, proper time for a court (affirming finding the trial court’s of a to determine a change whether has oc change in sup circumstances based on the ”)). Thus, curred ... is after the fact.’ porting spouse’s decrease income that was not erroneous for trial voluntarily changed occurred when he em Likewise, ployment). provide court to decline to voluntary retire for an automat by a supporting spouse ment ic reduction in support upon results Don in a material changе may, circumstances ald’s retirement. circumstances,
under some
be a valid basis
V
for modification of spousal support. Cf.
id.;
Pimm,
requests
that we
see also Pimm v.
601 So.2d
(Fla.1992);
award her attorney fees incurred on this
In re Marriage of
Smith,
332, appeal.
Ill.App.3d
“‘Although
we have concurrent
33 Ill.Dec.
(1979);
jurisdiction
396 N.E.2d
863-64
with
Smith v.
court to award
Smith,
(Me.1980);
419 A.2d
attorney
appeal,
prefer
Sil
fees on
we
that the
”
v. Sylvan,
N.J.Super.
Schmitz,
van
632 trial court decide the issue.’
(App.Div.1993);
A.2d
Deegan
v. 2001 ND
holdings in Wheeler and would Huffman VI not bar Donald from bringing a motion for We, therefore, modification of affirm spousal support upon based judg- voluntary his retirement.2 ment of the trial court and remand Kath- prior 2. While we find that granted. our case law would when such a motion should be *9 bringing not Kar Donald Becker, from a mоtion for Spousal Lewis Support Child retirement, open modification at his we leave “Voluntary Reduction Income” Doc- secondary question supporting of what a trine, (1997); 29 Conn. L. Rev. 685-87 actually show must succeed on a Halloran, Comment, Colleen Marie Petition- support- motion for modification based on the ing Modify Alimony a Court to When a Client ing spouse’s voluntary retirement until this Retires, 28 U. Balt. L. Rev. 212-29 presented issue is to us. Courts have relied (1998). aon number of different tests to determine attorney appeal fees request for leen’s ND to the trial court. Joseph DeCOTEAU, Plaintiff James WALLE, C.J., and VANDE 24] [¶ Appellant KAPSNER, JJ.,.concur. NEUMANN, and Justice, SANDSTROM, concurring in NODAK MUTUAL INSURANCE result. COMPANY, Defendant result. I concur in the Appellee. that the majority I am concerned may suggesting construed
opinion be No. 20010066. appropriate whenever spousal is of North Dakota. Supreme Court not able to maintain the
spouse will be living after divorce. standard of same Dec. Sadly, a reduced standard is often divorce. the case both Spousal support appropriate party as a has been Weigel v. marriage. Weigel,
result of ¶¶ 11-14, 462; 604 N.W.2d
2000 ND Brown, 32, 600
Brown v. (“A ‘disadvantaged’ spouse ‘foregone opportunities
one who has or lost mar
advantages consequence as a
riage during and who has contributed spouse’s in
marriage ” earning capacity.’ (quoting Riehl creased 595 N.W.2d ND
10)). Certainly long-term in the case
marriages, permanent not appropriate, but should be
the norm when rehabilitative can disadvantage resulting from
overcome marriage. long I am reassured
standing position of this Court that reha
bilitative, permanent, See, preferred. e.g., Oosting van v. van (N.D.1994);
Oosting, 521 N.W.2d Welder,
Welder v.
(N.D.1994); Wiege, 518 Wiege v. (N.D.1994); Roen, Roen 170, 172(N.D.1989). Sandstrom, Dale J. 28] V.
[¶