Walker v. WalkerWalker v. Walker
Lead Opinion
[¶ 1] Marjorie F. Walker appealed from a judgment granting her a divorce from James Dwayne Walker, distributing their marital property, and awarding her temporary spousal support. We conclude the trial court’s property distribution is not clearly erroneous, but conclude the court erred in fashioning the temporary spousal support award. We modify the judgment and affirm the judgment as modified.
I
[¶ 2] Marjorie and James, both age 63 at the time of trial, were married July 19, 1969, in Minot. It was Marjorie’s second marriage. Her first husband died in August 1968, and her youngest son from the first marriage, a volunteer firefighter, died from toxic smoke inhalation in the mid 1990s. Marjorie and James had a son, who was an adult at the time of trial.
[¶ 3] Before and during this marriage, Marjorie did not work outside of the'home. Shortly before the marriage, she made a down payment on the parties’ jointly-owned home from a $3,000 life insurance payment she received after her first husband died. Marjorie also received a $119,894 death benefit from the United States Department of Justice in 1997 after her son died. James has been employed with the Minot Sanitation Department throughout the marriage and, at the time of trial, was earning a gross monthly income of $2,570 and had a vested retirement pension valued at $37,558.92. James was eligible to retire with a monthly pension benefit of $1,572.62, but he was still working at the time of trial.
[¶ 4] The parties separated in 1995, and in a separate proceeding, James was ordered to pay Marjorie $600, and later $700, per month in spousal support, to pay the real estate taxes on the marital home, and to pay $4,500 in expenses for the funeral of Marjorie’s son. James paid the spousal support, but did not pay the taxes on the home or the funeral expenses.
[¶ 5] In October 2000, Marjorie brought this divorce action against James. Property distribution and spousal support were contested. The major disputed marital assets consisted of: (1) their home, valued at $65,000 with real estate taxes owing of $7,117.43; (2) Marjorie’s bank account, containing $36,000 remaining from her son’s death benefit; and (3) James’s retirement fund, valued at $37,558.92. The trial court awarded the marital -home to Marjorie, subject to a lifetime encumbrance in favor of James. Under this award, if Marjorie sells the home during James’s lifetime, Marjorie would receive the first $15,000 of the net proceeds, and James would receive one-third of the remainder. -Of the $36,000 in Marjorie’s bank account, James was awarded $6,000. Marjorie was awarded thé remainder, but was ordered to pay the $7,117.43 real estate taxes owing on the home. The parties were ordered to pay their own attorney fees. The trial court also ruled Marjorie was entitled to one-
II
[¶ 6] Marjorie argues the trial court’s property division and debt allocation is inequitable in this case.
[¶ 7] Section 14-05-24(1), N.D.C.C., requires the court to “make an equitable distribution of the property and debts of the parties.” Although there is no set formula for dividing a marital estate, the trial court must equitably divide the property based on the circumstances of the particular case judged in light of the Ruff Fischer guidelines, which include:
the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical conditions; their financial circumstances as shown by the property owned at the time; its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and such other matters as may be material.
Dufner v. Dufner,
[¶ 8] Marjorie argues it was inequitable to award James any interest in the parties’ home because he did not provide the down payment, never made a mortgage payment, and did not pay for any of the $15,000 in improvements Marjorie made to the home with her son’s death benefit. When property is acquired by one spouse before the marriage, this factor is not controlling but is one of many factors to be considered in determining a property distribution. See, e.g., Weigel v. Weigel,
[¶ 9] Marjorie also argues the trial court erred in awarding her only one-third of James’s retirement pay. Because the parties were married throughout the time James was contributing to his pension account, Marjorie argues she is entitled to one-half of James’s retirement pay under the formula adopted in Bullock v. Bullock,
[¶ 10] Marjorie claims the trial court erred in awarding James a share of Marjorie’s bank account because this account contains the remaining death benefit proceeds for her son which she received after the parties had separated. Marjorie argues she has been using the money to sustain herself and it is inequitable for James to be awarded any of it. She also argues she should not have been allocated the real estate tax debt because James had been ordered to pay that debt in the separation action.
[¶ 11] The trial court in this case was faced with difficult circumstances. Two of the parties’ three major assets, the home and James’s retirement account, are not easily liquidated assets. Marjorie’s bank account, the majority of which the court said “should remain with Marjorie,” was the only truly liquid asset between the parties. James requested the home be sold and the proceeds split between the parties, but the trial court instead granted Marjorie’s request that she be awarded the home. Only if she decides to sell the home does she have to share any of the sale proceeds with James. James was ordered to pay the real estate taxes on the home before Marjorie received her son’s death benefit, and he testified it was difficult making all of the periodic payments on the taxes because he was “short of funds.” Marjorie was awarded one-third of James’s not-yet accessible retirement funds, leaving the trial court only Marjorie’s bank account to adjust the equitability of the distribution. The trial court awarded James $6,000 from the bank account and allocated the $7,117.43 real estate tax debt to Marjorie in an attempt to make the overall property distribution equitable. We have approved offsetting monetary awards when it is impractical or unsound to liquidate essentially nonliquid assets. See Linrud v. Linrud,
[¶ 12] According to James’s undisputed calculations, the value of Marjorie’s share of the property distribution after subtracting the debts allocated to her is roughly $52,662. This figure does not include the $23,139.30 awarded to Marjorie from her bank account which, although included in the parties’ marital property and debt listing, was excluded by the trial court from the marital property for distribution pur
Ill
[¶ 13] Marjorie argues the trial court erred in failing to make her spousal support award permanent.
[¶ 14] Under
[¶ 15] A disadvantaged spouse is one who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity. Corbett v. Corbett,
[¶ 16] Thus, spousal support determinations must be made in light of the income and needs of the disadvantaged spouse and of the supporting spouse’s needs and ability to pay. McDowell,
[¶ 17] The trial court found Marjorie “has serious health problems, and as the result of injuries she sustained in an automobile accident, is not likely to ever become employed.” The trial court found James was “in generally good health ex
[¶ 18] Both parties were age 63 at the time of trial and had limited resources, income and assets available for their approaching retirements. Marjorie was awarded the bulk of the marital estate. James expected to retire in the near future and his retirement pension from the City of Minot would likely constitute his sole source of income.
[¶ 19] In view of James’s limited income and assets, Marjorie’s requests are untenable. Marjorie has not arithmetically demonstrated to us, nor can we discern on our own, that it is possible for James to continue to pay $700 per month spousal support and to obtain health insurance for her after his retirement and to pay his own living expenses. See Weir v. Weir,
[¶ 20] One aspect of the spousal support award, however, is troublesome. The court ordered James to continue “to pay Marjorie spousal support in the amount of $700 per month until the effective date of James’ retirement, or until the month of James’ sixty-fifth (65) birthday, which ever [sic] occurs first.” We generally prefer that a trial court spell out preordained contingency limits on spousal support in a divorce decree rather than invite further litigation by unconditionally decreeing support for life. See, e.g., Baker v. Baker,
TV
[¶ 21] We conclude the trial court’s property distribution and its failure to order James to pay permanent spousal support, maintain health insurance for Marjorie, and make her the beneficiary of his life insurance policy are not clearly erroneous. We modify the spousal support award to make its termination contingent on when James retires or turns age 65, whichever occurs last. As modified, the judgment is affirmed.
Notes
. The evidence presented about the parties’ possible entitlements to Social Security retirement benefits is ambiguous and incomplete. James testified that, because of his City pension, 'T possibly could draw some Social Security, but it isn’t going to be very much.” At one point, Marjorie testified that, upon the granting of this divorce, she would be entitled to "seven hundred and something I guess” from her first husband's Social Security benefits. On redirect examination by her attorney, Marjorie agreed she did not know what, if any, Social Security benefits she might receive. The trial court found:
It would appear from the evidence that James will not be eligible for social security benefits upon retirement. Marjorie, although not employed during the marriage, may yet be eligible for some minimal social security, but testified she has not checked with social security to see what, if any, benefits she may be entitled to.
It would have been helpful if the parties had presented competent evidence about their possible entitlements to Social Security benefits to better inform the court of their total financial circumstances, especially in view of their limited resources. A court’s valuation of marital property and consideration of other financial circumstances of the parties is dependent upon the evidence presented by the parties. See Marschner v. Marschner,
. There was no evidence presented about the life insurance policy’s death benefit or current cash value, if any.
Concurrence Opinion
concurring in the result.
[¶ 23] For the reasons set forth in my concurring opinion in Sommer v. Sommer,