Lohstreter v. Lohstreter, 970130
| Decision Date | 20 January 1998 |
| Docket Number | No. 970130,970130 |
| Citation | 574 N.W.2d 790,1998 ND 7 |
| Parties | Kathleen A. LOHSTRETER, Plaintiff and Appellant, v. Bruce A. LOHSTRETER, Defendant and Appellee. Civil |
| Court | North Dakota Supreme Court |
Chapman and Chapman, Bismarck, for plaintiff and appellant; argued by Daniel J. Chapman.
Foss and Moore, Bismarck, for defendant and appellee; argued by Sherry Mills Moore.
¶1 Kathy Lohstreter appealed a decree of divorce from Bruce Lohstreter, challenging the terms of visitation, the division of marital debts, and the denial of spousal support. We affirm the visitation terms, modify the debt division, reverse the denial of spousal support, and remand with instructions.
¶2 Kathy and Bruce married on March 14, 1975, and had four children. Three of the children were minors at the time of trial, but now only two are, Todd, age 16, and Lisa, age 12. When Kathy filed for divorce on March 13, 1995, the parties had been married twenty years, but recently they had been twice separated, spending more than three and one-half years apart.
¶3 Kathy had not had significant employment outside the home, but concentrated on raising their children. Near the end of the marriage, Kathy returned to school, and was close to completing a nursing degree.
¶4 Bruce had been employed with various banking and investment businesses, and his employments often took him away from home. Bruce abused alcohol, and had undergone at least four separate treatment evaluations. His alcohol abuse contributed both to their marital discord and to his employment difficulties. In 1991, Bruce plead guilty to driving while intoxicated, with a blood-alcohol level of 0.28, while his son Lance, then age 11, had been a passenger. The court had ordered Bruce to complete alcohol treatment. He enrolled in treatment, but did not finish it. He did, however, later complete another treatment program, but continues to use alcohol.
¶5 Bruce and Kathy separated in June 1992 for a year, reconciled for a month, and were again separated for two and a half years before the divorce. During the brief reconciliation, Kathy contracted two sexually transmitted diseases, Chlamydia and Human Papilloma Virus (HPV), a chronic viral infection. Bruce originally accused Kathy of getting these diseases from an affair, but later confessed he had had a three-year affair with a woman in Denver. During the separations, the children lived with Kathy, but visited Bruce on a consensual schedule of every other weekend and one night a week. At trial, Bruce consented to custodial placement of the children with Kathy, but contested the transportation limitations sought by Kathy.
¶6 The trial court granted a divorce for irreconcilable differences, placed custody of the three children with Kathy, but gave Lance, age 17, and Todd, age 15, "full control over all visitation with [their] father including timing, frequency and mode of transportation." The court set visitation with Lisa, then age 12, in keeping with the consensual schedule used during the separations. Once she reached 16, however, the court directed Lisa would control her visitations like her older brothers. Until then, the trial court gave Kathy the right to refuse the mode of transportation chosen by Bruce, if she provided alternate transportation at her own cost.
¶7 The trial court valued the gross marital estate at $99,993, and the marital debt at $73,751. The court distributed the home with an equity near $50,000 and its $28,515 mortgage to Kathy. The court gave each the personal property in their possession, valuing Kathy's at $8,545 and Bruce's at $12,933. The trial court allocated debts of $48,533 to Kathy, including the home mortgage, and allocated debts of $25,218 to Bruce, thus distributing net values of $38,527 to Kathy and of a minus net $12,285 to Bruce. Finding Kathy had not been disadvantaged by the divorce, the trial court denied spousal support.
¶8 On appeal, Kathy argues Bruce's continued use of alcohol requires more restrictive visitation. She contends the property division does not equitably reflect Bruce's economic misconduct during the marriage. She argues she was disadvantaged by the marriage and is entitled to spousal support.
¶9 Kathy argues the trial court, in setting visitation, "arbitrarily disregard[ed] the testimony of [her] expert when nothing can be discerned in the record to contradict the expert opinion." Kathy's expert, a licensed addiction counselor, testified her concerns for the children's safety were legitimate, since Bruce was an alcoholic who continued to drink. This expert questioned the advisability of an alcoholic driving with children, and opined Kathy's apprehension was "a very prudent response." Kathy argues the expert's uncontradicted opinion bound the trial court to restrict the mode of transportation to protect the children.
¶10 "The trial court's decision on visitation is a finding of fact that will not be reversed on appeal unless it is clearly erroneous." Zuger v. Zuger, 1997 ND 97, p 36, 563 N.W.2d 804; N.D.R.Civ.P. 52(a). As we explained in Huesers v. Huesers, 1997 ND 33, p 6, 560 N.W.2d 219 (citations omitted), "[a] finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court, on the entire evidence, has a definite and firm conviction that the trial court has made a mistake."
¶11 Two of these children are now over the age of 18, one is 16, and one is 12. As a practical matter, the 16-year-old is close to majority, and will have more voice in visitation than the 12-year-old. The trial court appropriately gave some discretion to the mother to step in and to safeguard the youngest child from riding with the father when necessary by granting Kathy the "right of refusal" for Lisa until she reached age 16. On this record, we cannot say the "right of refusal" given Kathy for only Lisa's transportation was erroneous.
¶12 Although a trial court cannot unreasonably disregard expert testimony, it is not required to accept even the undisputed testimony of an expert. Gardebring v. Rizzo, 269 N.W.2d 104, 109 (N.D.1978); In re Estate of Zent, 459 N.W.2d 795, 799 (N.D.1990). Where a parent has a continuing problem with alcohol, a trial court's placement of some restrictions on that parent transporting a child for visitation is a prudent measure to protect the child. The trial court did that for Lisa.
¶13 The trial court set visitation largely like the consensual schedule used while these parents had been separated. This voluntary arrangement had worked well. Therefore, we affirm the ordered terms of visitation.
¶14 The trial court distributed property valued at $87,000 to Kathy and valued at $12,933 to Bruce, while allocating $48,533 of debt to Kathy and $25,218 of debt to Bruce. The trial court denied Kathy any spousal support.
¶15 On appeal, Kathy argues the allocation of debts is clearly erroneous because the trial court did not adequately consider Bruce's economic fault. She also contests the trial court's finding she was not disadvantaged by the marriage, and she argues she is entitled to spousal support.
¶16 We recently summarized our standard of review for property division in Zuger, 1997 ND 97 at p 6 (citations omitted) The trial court must make an equitable distribution of the marital property, based upon the facts and circumstances of each individual case. The court's determinations on valuation and division of property are findings of fact that will only be reversed on appeal if they are clearly erroneous. A finding is clearly erroneous only if the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been made.
Similarly, in Beals v. Beals, 517 N.W.2d 413, 415-16 (N.D.1994), we explained a trial court's findings of fact about spousal support will not be set aside unless clearly erroneous. As Heley v. Heley, 506 N.W.2d 715, 718 (N.D.1993), and Glander v. Glander, 1997 ND 192, p 7, 569 N.W.2d 262, explain, property division and spousal support are interrelated, and often must be considered together.
¶17 The trial court tried to explain this property and debt division without spousal support:
... the Court, by not including a spousal support award, has left, on balance, the home and a future positive cash flow to the wife, while assigning most of the debt and very little of the property to the husband. He is presently employable at a substantial income. This disparity in division is also justified because of the conduct of the husband during the marriage.
Bruce argues, "although the distribution is unequal, really unequal, it is equitable." (emphasis original). We are not persuaded. The trial court's basic assumption, that "the debt amassed, directly or indirectly, [has inured] to the benefit of the entire family," is not supported by the record. Also, the trial court's finding Kathy was not disadvantaged by the marriage is not supported by the record.
¶18 This family's financial instability was largely attributable to Bruce's actions. Bruce had gone through at least ten employers in the past few years. His frequent changes in employment resulted from alcohol abuse and overspending. He had had career-high earnings in excess of $72,000 annually, but he was earning only $50,000 currently. A significant portion of the family's assets have been used to fund Bruce's alcoholic treatments and to pay off credit-card debts he accumulated during the separations. A $37,000 IRA was cashed to pay such debts, and that resulted in a lingering federal income tax liability of over $10,000 with an associated state income tax debt of $1,446. As a result, the IRS has threatened to levy against the home distributed to Kathy.
¶19 The trial court divided the tax debts equally between Bruce and Kathy. Although there...
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