Wiege v. Wiege
518 N.W.2d 708
N.D.
1994
Check Treatment

*1 missibly attempts to restrict the class uninsured

insureds to whom motorist cover- limiting Its definition is

age is offered. con-

trary requirement to the under Section 26.1- N.D.C.C,

40-15.2, every insurer must coverage to

offer uninsured motorist its in- liability its motor

sureds under vehicle insur- contrary It policies. is also

ance 26.1-40-15.7,

requirement under Section

N.D.C.C., limits of selected unin- coverage apply to “all in-

sured motorist policy.”

sureds under the The limited defini-

tion of insured under the endorsement invalid,

therefore and the definition of in- liability policy

sured under the section

applies to the uninsured motorist endorse- policy. summary judg-

ment under the reversed, dismissing

ment Thedin’s action is

and the pro- case remanded for further

ceedings opinion. accordance C.J., WALLE, LEVINE,

VANDE JJ., SANDSTROM,

MESCHKE and concur. WIEGE, Appellee, Plaintiff and WIEGE,

Lawrence Defendant Appellant.

Civ. No. 930287.

Supreme Court of North Dakota.

June 1994.

710

jobs during She worked August since 1992 at Bismarck store and currently earns an hour. Her benefits $4.90 pension eight include contributions after *3 company payment years partial with and premiums. of medical insurance Dianne can- job not earn more at current a her without college degree and must work full-time to receive medical benefits.

The trial court found that Dianne “will be by disadvantaged this divorce.” It concluded monthly, that Dianne needed addition $700 wages property to her current and $530 $250, pay distribution installments of her Mahoney Mahoney, Center, plaintiff for & $1,500 necessary living expenses of while at- appellee; argued by Mahoney. and Ann tending college. It also concluded even college permanent if degree, Dianne earned a Wolf, Bismarck, Wheeler for defendant monthly support “equitable would be $300 appellant; argued by and Orell D. Schmitz. permanent ... to offset the economic disad- vantage by suffered as Wiege Mrs. a conse- MESCHKE, Justice. quence spent functioning of the time she has Larry Wiege appeals judg- from a divorce in the home.” dividing property spousal ment awarding Larry disagrees with the trial court’s find- support Wiege. to Dianne We affirm. ing disadvantaged by that Dianne was Larry and Dianne were married in 1971 divorce and needs rehabilitative He Larry and have two adult children. also argues that “[o]nly also a situation where adopted daughter Dianne’s from a mar- party incapable of rehabilitation should riage. The equal- marital estate was divided spousal permanent support be awarded.” ly, Larry keeping with farm and Dianne Dianne perma- rehabilitative $33,000 receiving years over ten inter- 7% nent both appropriate are by spousal est the interest sup- with offset agree. this case. We port paid. requested monthly spous- Dianne $1,300 years al for five and $500 divorce, granting When a trial years. for an four Larry additional made may “compel parties court either of ... proposals combining support four alternative to make such suitable allowances the other property distribution. The trial court party support during life or for a shorter rejected Instead, suggestions. these it or- period as just, having seem Larry pay monthly dered regard to the parties circumstances of the $1,000 years for six or until Dianne received respectively.” Spousal NDCC 14-05-24. four-year college degree, whichever is earli- findings are determinations of fact er, and then until she dies. $300 that will appeal not reversed on unless years Larry LaVoi, Dianne was 46 was old erroneous. LaVoi v. (N.D.1993). Larry the divorce. Both and Dianne are N.W.2d Detailed find relatively healthy high ings and each has a school helpful fact are required if the education, by Larry diploma by fairly and Dianne trial by court’s reasons are discernible years GED. for 18 worked deduction Pfliger Pfliger, or inference. v. telephone cooperative (N.D.1990). currently Here, earns 461 N.W.2d employment hour. His properly $18.90 benefits trial court concluded that both reha pension permanent include contributions and in- medical bilitative and were neces monthly sary surance. military He also receives equitably share the reduction in disability payments living and raises a few cattle on Dianne’s standard of low-paying the farm. had several divorce. Rustand, 806, 807 v. the Rustand view

Both Dianne monthly spouse’s for rehabilita awarding need as court’s decision “prevention of desti up to six tion is not limited to the support of $700 tution,” Re on their stan permanent but can also be based years $300. used, spousal support Wahlberg living before the divorce. gardless of the form dard of 143, 145 consideration of Wahlberg, awarded should be Rujf-Fischer factors. LaVoi “balanc[e] can Rehabilitative (permanent); McAdoo v. at 386 separation” burdens created (re McAdoo, main enough not have income to parties do habilitative). These factors include: living apart they as tain the same id., citing parties, enjoyed together. Wahlberg, their . *4 respective ages of the

[T]he Weir, ability, of the mar- indicated in earning the duration 374 N.W.2d at 864. As we during Weir, 864-65, ability parties Larry’s riage and conduct of 374 N.W.2d at life, in the circum- marriage, potential their station for rehabilita pay and Dianne’s each, of their stances and necessities also be considered. tion should condition, finan- physical their health and disadvantaged by Dianne is proper- circumstances as shown cial court found: “She has this divorce. The trial time, time, at the ty at the its value owned to advance her edu opportunity had limited any, if income-producing capacity, its earning skills employment or her cation before or after whether accumulated homemaking of the burden of her because may as marriage, and such other matters wages are not suf duties.” Dianne’s current material. monthly living expenses, pay her ficient to (N.D. Weir, 862 v. 374 N.W.2d Weir previous standard of maintain her much less 1985). property of marital The distribution By comparison, in addition to his living. “setting the considered when should also be disability Larry’s payments, farm income and disadvantaged for a amount higher than hourly wage is almost four times at 436. Other spouse.” Pfliger, 461 N.W.2d Roen, at As in 438 N.W.2d Dianne’s. savings or can include retirement matters earning disparity in abilities this substantial Roen, 170, 172 pensions, Roen v. support for Dianne. justifies rehabilitative (N.D.1989), liquidity income-producing or property nature of the distributed Assuming support was Heley Heley, 506 disadvantaged spouse awarded, Larry argues “[i]m- that properly (N.D.1993), and 720 N.W.2d that will be plieit Dian[n]e in this decision is up that disadvantaged spouse will have to use period.” the 72-month rehabilitated property to live. Id. permanent support is He disadvantaged as spouse must be Dianne “would at appropriate because or divorce for rehabilitation a result of the indepen adequately restored to an point be Weir, appropriate. 374 to be maintenance disagree. We dent economic status.” prefer temporary reha at 862. We remedy this disadvan bilitative limited to support is not permanent support is tage, and indefinite any incapable of rehabilita spouse who is “cannot be ade appropriate only spouse tion, bpt may also be Larry suggests, as independent economic quately adequate restored to incapable of spouse to a awarded LaVoi, There Heley, 506 N.W.2d at 720. status.” 505 self-support. or rehabilitation fore, consider rehabilita a trial court should see also N.W.2d at eliminate support first because tive until is (support appropriate 720 permanent support. the need for rate “possibly at a reduced rehabilitated term”). Paraphrasing our for an indefinite sup purpose The of rehabilitative Weir, explanation in disadvantaged spouse the provide a port is to capable of is [Dianne] fact that self-supporting ... opportunity become deprive not in itself education, should ex rehabilitation training, through additional light in LaVoi, citing her of reasonable perience. likely extraordinary a much no finding of the fact that she is to have There was cir- case, producing capacity income than puzzling lower cumstances and it is [Larry], capacity earning why which she aided litiga- a trial would invite further [Larry] obtaining through However, her contribu- by awarding tion life. tion as the homemaker. the duration of Dianne’s is not clear- ly erroneous it can McAdoo, because be modified un- 864; compare 374 N.W.2d at der NDCC 14-05-24 if she remarries. (age spouse, N.W.2d at short duration marriage, potential adequate reha- requests attorneys Dianne fees outweigh slight from disadvantage bilitation appeal, for this either because it frivolous divorce). college degree with a Even six greater ability or because “has years, age “is now at an at which” pay said fees.” 14-05-23. Al See NDCC unlikely she “attain can decision, though affirm we the trial court’s capacity comparable to that of her husband” Larry’s appeal is not frivolous. We have previous or sufficient to maintain her stan- authority concurrent the trial court dard attorney’s appeal. award fees on See Bader omitted). (quotation award court’s Bader, (N.D.1989); permanent support, combined with the Roen, However, 438 N.W.2d at 174. *5 support, equitably rehabilitative shares “the is in a position court better to determine parties’ separate overall in reduction the Larry pay should Dianne’s attor living” standards of and is not errone- ney’s Id. fees. ous. Id. at 387. 'Therefore, we judgment affirm the divorce argue does not that and for attorney’s remand consideration of spousal support total amount in of this case appeal. fees on excessive, complains is that combining court had no standards for both C.J., WALLE, However, VANDE

types mag there is no NEUMANN, JJ., SANDSTROM concur. determining ic formula for how much or what type should Even be awarded. LEVINE, Justice, concurring. Larry’s attorney at argument admitted oral guidelines sup that I specially emphasize similar to those for child write to the limited port adopted spousal sup could not be for our “preference” context of oft-stated for port. Although differently,” temporary “treated Ru rehabilitative and the in- stand, 807, equities 379 preference N.W.2d at rehabilitative and upon that will visit permanent support recipient inadequate temporary are both awarded after rehabilita- Rujf-Fischer consideration of the support, factors to tive if misunderstood. I also chal- parties’ pre-divorce lenge either maintain the logic precedent stan of our that calls of living equitably dard or support upon share the burden automatic termination of recipient’s See remarriage. divorce. 505 sup 387. Because both forms notes, majority As the sup rehabilitative port are based on same factors and serve port is in purpose. may varied It be used as purposes, specific the same we believe more a means to economically restore an disadvan guidelines impossible unnecessary. are taged spouse independent economic status. also that the trial Heley See 719-20 (N.D.1993). erroneously may refused to terminate It equalize also be used to divorce, Dianne’s if she Unless Wahlberg remarries. the burden of the v. Wahl circumstances, there are extraordinary berg, (N.D.1992), by spousal support will increasing capacity terminate when the dis disad advantaged Rustand, spouse vantaged Roen, remarries. spouse. See Roen v. “Therefore, N.W.2d at 807. it preferable is Notwithstand spell preordained ing it, for a trial court out “preference” our heavy our contingency it, limits of temporary sup reliance on rehabilitative Roen, may divorce decree.” port economically 438 N.W.2d at 173. not enable an disad Roen, 172; earning capac supra supra spouse to achieve Weir v. vantaged an Weir, 863-64 ity provides pre-divorce standard of living equitable or an share the reduction may ready While there be no formula for may be a of that standard of While awarding spousal support, it is essential necessary goal of economic means temporary perma- rehabilitative rehabilitation, temporary sup rehabilitative support are nent understood to be two dis- itself, sufficient, port is often not obtain purposes. tinct remedies with distinct it, therefore, “preference” for that end. Our need for rehabilitative is easier to merely instructing that an a means of comprehend—a fairly fix for immediate temporary award of rehabilitative However, fairly problem. obvious step in should be a first court’s partial accomplish fix economic equitable exercise of discretion to achieve disadvantaged spouse. rehabilitation of the dissolution of the support, often misunderstood or overlooked, part is another of the arsenal Larry’s earning capacity of four times equity available to restore economic to a typical general more than Dianne’s is of the partner enterprise. of a failed marital disparity earning capacities between di- Beals, vorcing men and women. See Beals support, per- If or whether rehabilitative J., (Levine, manent, both, properly as com- is viewed concurring). Temporary sup- pensation opportunities for lost career port Dianne to enables like advancement, recipient’s remarriage then a training unlikely obtain education or automatically sup- should not terminate that parity necessary for Dianne to achieve port. O’Kelly, supra at 258-60. lack While living maintain her or to good faith effort to achieve economic reha- *6 greater than bear no reduction her deciding factor in bilitation is a relevant remedy post-divorce living. standard of terminated, support re- should be permanent disparity ca- marriage alone is not. Id. at see also pacity inequitable and the burdens the dis- Bauer, 897, Bauer v. 899-900 parity permanent support. breeds is argument support is that automatically upon should not terminate re- support compen- a Permanent is means of marriage recipient if underdevel- of the “the sating permanent a for the economic recipient oped earning capacity of the could disability by the deci- husband/wife yet not rehabilitated.” O’Kel- not be was forgo opportunities sion for the one to career words, ly, a supra at 261 n. 151. In other and advancement as the other enhances when the marital enter- deal is deal and O’Kelly, earning capacity. See Marcia Enti- (ie. support) prise dissolves and the debt Divorce, Spousal Support tlements to After parties, assets are allocated between the the (1985); 61 N.D.L.Rev. 246-50 see also repay obligation debtor’s to those debts LaVoi v. 386-87 should continue whether or not the creditor (N.D.1993); Bullock, Bullock v. enterprise. forms a new (N.D.1984); Nastrom, Nastrom v. omitting remarriage pro- 581-82 That In termination vision, judge may have deter- partners mutual decision is of to both well benefit marriage support all was owed during the life of the but dissolu- mined that compensate marriage story. Larry to rehabilitate tion of the is a different Dianne, remaining contingent upon her price paid is the to be good faith single, upon to her exercise of the earlier mutual decision about the role when, Foreseeing no played by partner effort to seek rehabilitation. each marital fact, way enough earn to main- economically disadvantaged partner Dianne would ever obtain, living compa- training cannot and reasonable tain even reduced time, Larry’s, trial court ordered Lar- necessary to live a life rable to the income compensate ry pay permanent support to comparable to the to divorce or to one disability arising higher post-di- Dianne for her economic comparable to the earner’s marriage played during her from the role she vorce reduced standard of See remarries, Larry. or not Dianne Whether debt, repayment she is entitled remarriage, time of her she has

unless at the rehabilitation, is, economic

achieved full approximates the one income during

achieved marriage view of is that it is a

Our modern party making

partnership with each valuable enterprise. Erickson v.

contributions

Erickson,

(Levine, J., concurring). The common law

duty husband to wife duty supplanted

been the mutual of the wife to other.

husband and each See § O’Kelly

NDCC 14-07-03. As Professor

observes, when was awarded to duty

wives as a continuation during marriage, wives maintain made

good duty sense to terminate the when the

wife remarried the new husband as- duty O’Kelly, support. supra

sumed Today, however, post-divorce 235-36. duty not a continuation of Instead, compensation it is for lost

opportunities such, As advancement. marriage

remains of the a cost failed and a

debt of one who benefited the mutu- from

al decision to enhance one career. Hav-

ing nothing to do with recipient’s new

partner everything recipi- do with partner

ent’s partnership, former and former *7 parity should continue until economic or, parity unattainable, such

obtained judgment.

the duration established in the

Bradley SAMDAHL, Scott Petitioner Appellee,

NORTH DAKOTA DEPARTMENT OF DIRECTOR,

TRANSPORTATION

Respondent Appellant.

Civ. No. 930279.

Supreme Court of North Dakota.

June 1994.