Wagner v. Wagner

(compil- N.W.2d 2007 ND 33 cases). ing effectively “Our decisions rec- WAGNER, Plaintiff, James Steven ognize ... liquidation ongoing of an busi- Appellee Cross-Appellant, resort, ordinarily a ness is last and ... on appeal generally we have not been asked Gay WAGNER, Defendant, party opera- [business] awarded the Appellant Cross-Appellee. liquidate structuring tion to it instead of monetary award so the can con- enterprise No. 20060124. Gibbon, tinue at 7. as viable business.” Supreme Court of North Dakota. case, In this the court distributed property equitably any liquidating without March 2007. property, including of the marital the busi- pre- nesses. When the district court

sented with different methods distribu-

tion, clearly it is not erroneous follow

one method rather than the other. Id. at

¶ 9. The district court’s decision is Therefore,

supported by the evidence. it clearly

is not erroneous.

V properly The district court relied

upon evidence before it to assign values to property and divided the

roughly equal fashion. carefully The court

explained the difference in the award val-

ues. Dennis Holden failed to show the

district court’s decision was errone-

ous. We affirm. WALLE,

[¶ 17] GERALD W. VANDE

C.J., MARING, and MARY MUEHLEN CROTHERS,

DANIEL J. and DALE V.

SANDSTROM, JJ., concur. Holman, Firm, Wagner

Maureen Serkland Law received a net N.D., plaintiff, appellee, $765,057.50, Fargo, which included the marital cross-appellant. $310,000, worth financial residence assets including money market ac- Brothers, Johnson, P.C., James R. Wold $30,000 bonds, $279,085 in in count and a defendant, N.D., Fargo, appellant and account, vehicles, retirement and house- cross-appellee. goods. Wagner hold James received a net CROTHERS, Justice. $566,870.50, property award of which in- $78,880 assets, cluded business Wagner appeals 1] Marilee and [¶ $188,339.50 assets, $279,085 in financial Wagner cross-appeals James from a di- account, vehicles, a retirement and house- judgment dividing vorce their marital es- goods. hold There was evidence Marilee awarding Wagner spousal tate and Marilee $200,000 Wagner approximately took from support. We conclude the district court’s parties’ money of account in spousal support award rehabilitative the market the Wagner clearly Marilee is not erroneous. months before the trial. The court found judgment We affirm the the dismiss she was unable to account for some of the cross-appeal. missing money, any her awarded missing posses- funds she had Wagner sion. The court found Marilee is Wagner

[¶ Marilee and James were 2] disadvantaged a spouse and awarded her married in 1979 and have four children $5,000 month in per spousal together. Wagner James sued Marilee years. support for five The court ordered Wagner February for divorce in 2005. At pay James per month in trial, only the time of the parties’ two child support. youngest children were minors. Marilee degree has a bachelor’s and com- II pleted years five of a Ph.D. psychology married, program parties after the were Wagner argues the dis- [¶ 4] but she discontinued her education to start trict court’s decision is family. years a Marilee Wagner was 48 clearly erroneous. She claims she will not old at the time of trial and had not been to adequately able rehabilitate herself employed outside the par- home since the years within five considering ties’ first child was born. James incomes, parties’ the duration of the attended medical school after parties life, marriage, her station in and the stan- were married and obtained a medical de- living dard of she became accustomed to gree. years was 48 old at marriage. argues She she the time of trial and was a sur- vascular should have been awarded geon, earning between spousal support. $340,000per year. A spousal support deter trial, After a the district court mination a finding is of fact which will not granted divorce, parties a distributed on estate, appeal clearly reversed unless it is parties’ granted marital 195, Staley Staley, erroneous. Wagner custody parties’ two minor children, A finding awarded 688 N.W.2d 182. of fact is child support, clearly awarded Marilee re- erroneous “when the award is in law, spousal support. habilitative duced an erroneous view the it, years complete did not or this more than is no evidence there convinced, on the entire She has not worked out- program. based Court made.” Id. record, has been a mistake of the home since the birth of the side that the finding Absent parties’ first child. erroneous, we will not award is intelligent, 15. Marilee is articulate and merely court’s award a district

reverse apparent good health. She has not have the evidence may we viewed because since the sought employment differently. Id. employ- separated. capable She is capable ment and is of further education sup making In 6] [¶ will enable her to achieve ade- which determination, court must a district self-support. or quate appropriate guidelines for the consider Ruff-Fischer the the duration of the amount and both plan no for reha- presented 16. Marilee 195, 8, 688 Staley, 2004 ND support. requested bilitation and has she The factors include: N.W.2d 182. earns, receive half of whatever James their respective ages parties, of the the life. for of the mar earning ability, the duration monthly 17. estimate of her Marilee’s during riage and conduct of expenses expenses greatly exceeds the life, in their station marriage, separation and parties prior each, and necessities circumstances accurately actual does not reflect condition, their physical their health and longer costs of the household which no by the as shown financial circumstances monthly mortgage payment, includes a time, at at the its value property owned paid-in-full. having the same been time, income-producing capacity, its Marilee, during the course of the 18. or accumulated before any, if whether divorce, marital assets con- dissipated other mat marriage, after the and such restraining provisions trary to the order may material. ters as and is unable to of the divorce summons required to The district court is not

Id. money for all of the that she account factor, findings on each specific make spent. the ratio- be able to understand we must trending 19. income has been James’ Id. The dis- nale for the court’s decision. downwards. required to make a longer trict court is no found Marilee disadvan- spouse is “disad- The court separate finding that a Sack, 57, marriage and need of taged 2006 ND vantaged.” Sack ¶ 11, spousal support. The court 711 157. N.W.2d $5,000 per Marilee awarded considered the The district court years, for five month findings guidelines and made Ruff-Fischer explaining: about the relevant factors: (49) years of Forty-nine a doctor Marilee is Wagner] 18. is medical [James good age, apparent in the area of vascular sur- educated and practicing support and favor- gery. health. The adequate distribution is property able college de- Wagner] has 14.[Marilee her to rehabilitate herself within in 1979 from Concordia gree earned from the date of this Order. months Fol- College biology psychology. and her needs The Court has considered from lowing graduation her Concordia pay. This is an ability of James to psycholo- PhD in College pursued she spousal sup- equitable determination of University Minnesota for gy from the $765,000 which, and will enable Marilee to achieve award of more than de- port estate, support. spite dissipation self of the marital $200,000 approximately was more than claims was awarded. Marilee award is district Wagner’s property award included a house she have been erroneous because should $310,000, approximately worth permanent spousal support. awarded Per account, $30,000 money from a market appropriate manent bonds, approximately economically disadvantaged “when retirement account. was equitably cannot be rehabilitated to large portion awarded a of the marital up opportunities develop make for the estate, and the she received can ment she lost the course of the generate income. used Staley, marriage.” 2004 ND testified she wanted a career. spousal sup 182. “[PJermanent N.W.2d education, Considering Wagner’s provide is awarded to traditional ability she has the to start a career and spouse incapable maintenance for a of ade increase her after income further edu- quate self-support.” rehabilitation or training. cation or The court found the Greenwood, Greenwood v. property distribution and rehabilitative ¶ 9, 596 N.W.2d 317. “Rehabilitative spousal support would enable Marilee spousal support equalize is awarded to Wagner to rehabilitate herself and achieve to an burdens divorce or restore eco adequate support. sup- self The evidence nomically disadvantaged spouse to inde ports findings. the court’s pendent by providing status a disadvan taged spouse opportunity acquire an an Moreover, Wag [¶ 10] education, skills, training, experi work or present any ner did not evidence that she (cita ence to self-supporting.” become Id. cannot be rehabilitated. She testified she omitted). tions capable working is and she would like career, present The district court’s find but she failed to

[¶ 9] evidence ings adequately explained plan the rationale for of her to rehabilitate herself or what years Wagner earnings its decision. Marilee is 49 her future could be. Based on old, educated, and in good presented, health. She the evidence the court awarded monthly testified living expenses spousal support finding her were rehabilitative Mar- month, approximately per adequate ilee could achieve self greatly support. rarely district court found that amount We reverse a district exceeded the expenses parties prior court’s decision to award rehabilitative separation, which support James testi and remand for the court to con $6,000 per permanent fied were month and support; only sider we do so accurately did not support reflect the costs of the when the evidence does not household, which longer finding no included a court’s could be mortgage “A payment. adequately relevant factor in rehabilitated. See Riehl v. ¶¶ Riehl, 14-17, setting support 107, the amount of for a disad 595 N.W.2d (rehabilitative vantaged spouse is the support distribution mar reversed because property liquidity ital and the or property income- division and did not ad producing property nature of the marriage); distribut dress the burdens of the Wald (N.D. Wald, disadvantaged spouse.” ed to the v. v. 556 N.W.2d 296-97 Schiff 1996) (reverse 113, 42, Schiff, permanent 611 N.W.2d 191. sup consider property parties’ earning received a net due to greatly permanent spousal support clearly will increase is erro- unlikely wife power, major opinion neous. I am of the ability, produc- Wag- income earning husband, permanent ner should have received awarded to and wife’s ing asset Here, spousal support in addition to rehabilita- problems). health ongoing serious spousal support, tive and I would reverse Wag- evidence Marilee there is appro- remand to the trial court for an adequately rehabilitated. ner could be priate permanent spousal sup- conclude the district court’s We [¶ 11] port. spousal support is award of rehabilitative erroneous under the facts in not supports this case. The evidence properly The trial court awarded and we are not convinced findings, spousal sup- made. are also mindful

a mistake was We port. ap- Rehabilitative jurisdiction the district court retains under propriate for Marilee because her § modify 14-05-24.1 to N.D.C.C. primary role was that marriage and make it if there is a award homemaker, of a and she has not been change material circumstances. See twenty years. the workforce for over Staley, 2004 ND 688 N.W.2d 182.

Therefore, she to pursue obtaining needs ultimately Ill employment. work skills and appro- Rehabilitative “is cross-appeals priate possible when it is to restore an judgment arguing from the district court’s economically disadvantaged spouse to in- division should be reversed if status, dependent equalize economic or to spousal support award is reversed be- by increasing the burden of divorce the spousal support cause the and disadvantaged spouse’s earning capacity.” they so division issues are intertwined ¶ Riehl, 107, 12, Riehl v. ND 595 1999 together. must be decided omitted). (citations ap- 10 N.W.2d One if requested cross-appeal his be dismissed proach awarding spousal support to is the spousal support the award is affirmed. doctrine, meant to minimalist which is edu- spousal support Because we affirm the recipient cate and retrain the to minimal award, Wagner’s cross- we dismiss James self-sufficiency. Klootwyk v. Van Van appeal. ¶88, 15, ND 563 N.W.2d Klootwyk, 1997 rv rejected the minimal- 377. This Court has ap- an equitable ist doctrine in favor of judgment affirm the and dis- [¶ 13] We attempts “to enable the dis- proach, which cross-appeal. miss the advantaged spouse ‘adequate’ to obtain standard self-support considering after the WALLE, GERALD W. VANDE [¶ 14] marriage, the living of established C.J., KAPSNER, and CAROL RONNING the marriage, parties’ the duration of the J., concur. earning capacities, proper- the value of the A. The Honorable BENNY [¶ 15] ty Rujf-Fischer and other factors.” Id. GRAFF, S.J., sitting place of Riehl, argued In the husband [¶ 18] SANDSTROM, J., disqualified. years spousal that five of rehabilitative MARING, Justice, dissenting. support adequately was sufficient to reha- years, wife because after five respectfully dissent. I believe bilitate his [¶ 16] educated, support to trial to award his wife would be able the failure of the court 324 permanent spousal

herself, support, 1999 rehabilitative to meet her needs. able ¶ 107, 15, necessary. support N.W.2d 377. This Court also ND 563 and reversed and rejected argument for to the trial court consider- remanded II support longer period ation of a Hagel, explained: In we “Section job-entry process, factoring the wife’s 14-05-24.1, N.D.C.C., provides, ‘taking disparate earning capabilities parties’ into consideration the circumstances living, and the husband’s and standard of may require party one parties, court ¶ In the ability present Id. at 20. pay. party to the other pay spousal support case, Wag- the trial court awarded ” ¶ any period of time.’ 2006 ND ner rehabilitative White, (quoting 1 v. 721 N.W.2d Ulsaker years. five This award of a month for 567). 133, ¶20, 717 Per 2006 ND N.W.2d spousal support does not aim ap generally manent “is disadvantage mitigate “to marital caused disadvantaged spouse propriate when the at an economic impact divorce of equitably cannot rehabilitated make during marriage.” Id. at role assumed opportunities she lost in the up for the support 15. There is no evidence to Riehl, marriage.” course of the 1999 finding trial can 10; 107, 1118,595 N.W.2d see Kautzman v. years. “adequately” herself five ¶¶ Kautzman, 19-20, 1998 ND years, In five (holding permanent spousal N.W.2d has fifty-four years will old. She re- appropriate when the wife’s support was $132,255 money market account ceived earning capacity approach would never bonds, not but these will enjoyed “very husband’s and the yield significant interest income. Addi- living”); comfortable standard of Donarski tionally, this has said that “a Court 128, ¶8, v. 1998 ND 581 N.W.2d Donarski required deplete property is not distri- (holding a wife’s “limited marketable Hagel Hagel, in order to live.” bution job skills” and “substantial 181, 14, 721 1. Marilee N.W.2d parties” justified an income between

Wagner’s income-producing home is not an spousal support). asset, only other assets awarded to disadvantaged spouse “Even when the is account, part of a retirement were capable recog we have of rehabilitation vehicles, During the goods. and household may permanent spousal support nized years, Wagner will contin- next five James equitably the overall appropriate to share ue to earn between in parties’ separate reduction standard per year. psycholo- Marilee has a ¶ Riehl, living.” (citing of at 18 Weir v. twenty-sev- gy degree, which she obtained (N.D.1985) Weir, 374 N.W.2d 864 years ago. en She will never earn more appropri (holding permanent support was Wag- than a small fraction of what James disadvantaged spouse was ate because the year- a surgeon ner earns as a vascular on likely income-pro a much to have lower ly period basis. I believe the ducing capacity spouse, than her which support adequately in this case does not obtain)). earning capacity helped she the divorce. address the burdens of See ¶ trial failure to award Riehl, believe the in in- huge disparity at 17. The Wagner permanent spousal sup Marilee parties come between the makes rehabili- erroneous, was because the inadequate alone in tative present a classic case for trial in this facts of this case this case. The court case whether, permanent spousal support. in should consider addition to old, forty-nine years highly unlikely of the at proper application A is 21] [¶ Ruff- considering her guidelines age, mandates she has been out Fischer job twenty years, in this case. of the market for over Ruff-Fischer ages, specialized their and the parties’ factors include: nature of her knowl- abilities, edge. the duration of the mar- earning life, in the circum-

riage, their stations there is [¶ 23] “[W]hen substantial dis- parties, stances and necessities parity spouses’ between the incomes that by prop- their financial situations as shown readily adjusted by cannot be time, erty ownership, its value at the and division or may it support, Staley v. income-producing capacity. its appropriate for the court to award indefi- 195, 8, Staley, 2004 ND 688 N.W.2d 182. permanent support nite to maintain the forty-eight years Marilee was old Fox, disadvantaged spouse.” Fox v. at The the time of divorce. ¶68, 21, 592 N.W.2d 541. “Permanent twenty-six years. had been married for spousal is ordered to maintain a somewhat aspirations Marilee had of becom- comparable living standard of for a doctor, a in deference to ing medical incapable who is rehabilita- her husband’s desire to become a medical Kautzman, tion.” 1998 ND doctor, degree she instead obtained a in (citations omitted). large N.W.2d 561 The psychology. parties’ Due to the choice disparity earning capabilities between family, start a was unable parties, age, Marilee Wagner’s lack of complete psychology. her Ph.D. history, work income-producing minimal Wagner stayed at home with the assets, past living standard all man- parties’ twenty years. children for over It permanent spousal sup- date an award of unlikely highly is will ob- port. employment huge tain that will close the earning capacity between her Ill Wagner. Wagner’s and James explained [¶ 24] As we Van Klo- marriage greatly role at home otwyk, any person attempts begin who Wagner’s contributed successful life, Wagner’s stage at Marilee career surgeon. career as vascular This career deferring meaningful after work and edu high living led to a standard of for the twenty years “in cation for over order to any parties. employment Other than Mar- pursuit her husband’s of his own obtains, only ilee income she career, a career the fruits of which she will

will have will be minimal interest income share, longer presumptively no disad liquid from her assets. vantaged by her divorce.” See Van Klo 88, ¶ 26, spousal support may otwyk, Permanent 563 N.W.2d 377 (Neumann, J., marriage concurring specially). be awarded where the has been long dependent spouse duration and the for the trial would reverse and remand age of such an rehabilita- appropriate per court to set an Sommer, unlikely. tion is Sommer on the manent based ¶¶ 14-15, (holding 636 N.W.2d 423 guidelines. Ruff-Fischer appropri- was GRAFF, S.J., BENNY A. concurs. parties’ long marriage, ate because of the time, ability the wife’s limited to work full

and the vast income and earn-

ing potential between the Ade- parties).

quate Wagner, rehabilitation for Marilee

Case Details

Case Name: Wagner v. Wagner

Court Name: North Dakota Supreme Court

Date Published: Mar 2, 2007

Citation: 728 N.W.2d 318

Docket Number: 20060124

Court Abbreviation: N.D.