Wilhelm v. Wilhelm, 970376

Decision Date16 July 1998
Docket NumberNo. 970376,970376
PartiesJudy Ann WILHELM, Plaintiff and Appellant, v. Jeffrey Dean WILHELM, Defendant and Appellee. Civil
CourtNorth Dakota Supreme Court

Carol S. Nelson and Bradley A. Cruff, Valley City, for plaintiff and appellant; argued by Bradley A. Cruff.

Irvin B. Nodland, Irvin B. Nodland, P.C., Bismarck, for defendant and appellee.

SANDSTROM, Justice.

¶1 Judy Wilhelm appeals from a judgment setting child support, ordering spousal support, dividing property, and ordering the parties to pay their own attorney fees. We affirm the trial court's child support determination, valuation of in-kind income, and denial of attorney fees. Because the trial court incorrectly calculated the marital estate before dividing the property, we reverse and remand the trial court's division of property and order for spousal support.

I

¶2 Judy and Jeffrey Wilhelm were married on February 12, 1988. Judy Wilhelm was 21 years old, and Jeff Wilhelm was 30; both had previous marriages. They have two children: a daughter born February 23, 1988; and a son, born March 11, 1989. The parties separated permanently in 1995. The trial court granted a divorce based on irreconcilable differences.

¶3 The parties agreed Judy Wilhelm should have custody, and the trial court set a visitation schedule. The trial court calculated $1,400 per month in child support and required Jeff Wilhelm to provide medical insurance and to pay all of his children's uncovered medical expenses. The trial court ordered Jeff Wilhelm to pay Judy Wilhelm spousal support of $250 per month for 48 months. The trial court awarded Jeff Wilhelm his minority interests in three family-owned corporations and the undistributed income of the corporations, ordered the marital home sold and the proceeds evenly divided, awarded Jeff Wilhelm the contract for deed on the "Taylor property" valued at $100,000, awarded Judy the Susag contract-for-deed payment and the tax refunds, awarded the parties their respective 401(k) plans, awarded each party numerous items of personal property, required each to pay certain debts, and ordered the parties to pay their own attorney fees.

¶4 Judy Wilhelm appeals from the October 27, 1997, notice of entry of judgment, which references the October 24, 1997, judgment of the Stutsman County District Court. The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 28-27-02. The appeal is timely under N.D.R.App.P. 4(a).

II

¶5 Judy Wilhelm argues the trial court erroneously valued Jeff Wilhelm's in-kind income, in the form of items owned by the corporations and used by Jeff Wilhelm, for the purpose of calculating his child support obligation.

A

¶6 "Child support determinations are findings of fact, governed under the 'clearly erroneous' standard of review." Hogue v. Hogue, 1998 ND 26, p 22, 574 N.W.2d 579. "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, on the entire record, we are left with a definite and firm conviction that a mistake has been made." Edwards v. Edwards, 1997 ND 94, p 4, 563 N.W.2d 394.

B

¶7 The trial court used a five-year average of Jeff Wilhelm's income to decide his child support obligation because it concluded his position as a minority shareholder made him more like a self-employed person than an employee. Using the five-year average, it found a child support obligation of $1,315. See N.D. Admin. Code § 75-02-04.1-10 (showing $4,600 in net income equals $1,315 in child support under the guidelines). The trial court recognized Judy Wilhelm's argument Jeff Wilhelm was able to use the corporation's "toys" and increased the child support to $1,400 because of this in-kind income.

¶8 Judy Wilhelm contends this $85 increase in child support means the trial court found the value of Jeff Wilhelm's in-kind income to be $300. See N.D. Admin. Code § 75-02-04.1-10 (showing $4,900 in net income equals $1,400 in child support under the guidelines). Judy Wilhelm argues this increase is insufficient in light of Jeff Wilhelm's use of "a brand new 'demo' vehicle, a 1966 Stingray Corvette, a 1984 Jeep CJ-7, a 1974 Volkswagen bug convertible, a 1989 Bayliner boat, motor and trailer, a jet boat, two Arctic Cat snowmobiles and trailer and a 4 wheel all terrain vehicle. All insured by the corporation and used by Jeff at no cost to him." Judy Wilhelm contends Jeff Wilhelm's "in-kind income should be valued at $2,000 per month" for a total child support obligation of $1,879. See N.D. Admin. Code § 75-02-04.1-10 (showing $6,600 in net income ($4,600 + $2,000) equals $1,879 in child support under the guidelines).

¶9 Judy Wilhelm's appellate brief, however, acknowledges "these items are inventory that is held for sale or investment," "[t]here was no testimony as to the type of 'demo' that Jeff drives," and "[t]here was no testimony regarding the value of the use of this stable of toys." In addition, Judy Wilhelm submitted to the trial court proposed findings of fact in which she proposed child support of only $1,484 per month--well below the $1,879 she seeks on appeal. Because the trial court had no evidence before it of the value of the items Judy Wilhelm seeks to have included as in-kind income, Judy Wilhelm's assertion the trial court's valuation of the in-kind income is clearly erroneous is without merit. 1 We affirm the trial court's child support determination.

III

¶10 Judy Wilhelm contests the level of spousal support ordered to be paid by Jeff Wilhelm and also contests the trial court's division of property.

A

¶11 "[P]roperty division and spousal support are interrelated, and often must be considered together." Lohstreter v. Lohstreter, 1998 ND 7, p 16, 574 N.W.2d 790. In Hogue v. Hogue, we restated the standard of review for spousal support determinations:

Determinations of spousal support are findings of fact, and the trial court's determination will not be set aside unless it is clearly erroneous. A finding is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support a finding, or if, although there is some evidence to support it, on the entire evidence, we are left with a firm conviction a mistake has been made.

When making a spousal support determination, the trial court must consider the relevant factors under the Ruff-Fis[c]her guidelines. Considered under the Ruff-Fis[c]her guidelines are: " 'the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.' " The trial court is not required to make specific findings, but it must specify a rationale for its determination.

1998 ND 26, pp 24-25, 574 N.W.2d 579 (citations omitted). Our standard of review for property division is similar: " '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.' " Lohstreter, at p 16 (citations omitted).

B

¶12 In its discussion of spousal support, the trial court emphasized: "Judy is economically disadvantaged, seeks rehabilitation, and the shortness of the length of the marriage. The length of the marriage leans towards little or no spousal support while the reduction in salary and rehabilitation lean toward an award." The trial court awarded $250 per month for 48 months to "assist Judy in this transitory time of her life and ... help pay for some of her schooling."

¶13 In its discussion of the property division, the trial court noted the great difference in incomes: Jeff Wilhelm earned between $80,000 and $100,000 annually, and Judy Wilhelm earned about $10,000. The trial court also stated neither has "any marital property that is of an income producing nature." The trial court concluded it would "award premarital property to each. The guidelines do not dictate a less than equal division of property. They do direct that Judy receive spousal support...." (Emphasis added).

¶14 In determining spousal support, the trial court was properly concerned with Judy Wilhelm being economically disadvantaged, and also properly considered the relatively short duration of the marriage. See, e.g., Fenske v. Fenske, 542 N.W.2d 98, 103 (N.D.1996). Judy Wilhelm, however, contends the trial court, while recognizing the disparity between the parties' earnings, reduced the spousal support award because she lived with Jeff Wilhelm while still legally married to her first husband. It seems clear the trial court did not punish either party for any indiscretions, because it noted each party's indiscretions (the trial court found Jeff Wilhelm had an affair after the parties separated) and stated: "Such are the days of our lives."

¶15 In its division of property, the trial court awarded Jeff Wilhelm the Taylor contract-for-deed property and other personal property for a total value of $109,434. 2 Judy Wilhelm was awarded the Susag contract-for-deed payment and other personal property for a total of $67,007. 3 After adjusting for debts, the trial court awarded Judy Wilhelm $39,861, and Jeff Wilhelm $36,979 (not including the half of the equity each was awarded in the house), noting the division was not quite equal because of Jeff Wilhelm's "better earning capacity." This is in line with the trial court's statement the Ruff-Fischer "guidelines do not...

To continue reading

Request your trial
17 cases
  • Schoenwald v. Schoenwald
    • United States
    • United States State Supreme Court of North Dakota
    • May 19, 1999
    ...and division of property are findings of fact that will only be reversed on appeal if they are clearly erroneous.' " Wilhelm v. Wilhelm, 1998 ND 140, p 11, 582 N.W.2d 6 (quoting Lohstreter, 1998 ND 7, p 16, 574 N.W.2d 790) (citations omitted); see also N.D.C.C. § ¶21 In dividing the propert......
  • Fox v. Fox
    • United States
    • United States State Supreme Court of North Dakota
    • April 12, 1999
    ...are findings of fact and will not be reversed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Wilhelm v. Wilhelm, 1998 ND 140, p 11, 582 N.W.2d 6. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to suppor......
  • Solem v. Solem
    • United States
    • United States State Supreme Court of North Dakota
    • November 21, 2008
    ...we are left with a firm conviction a mistake has been made." Weigel v. Weigel, 2000 ND 16, ¶ 6, 604 N.W.2d 462 (quoting Wilhelm v. Wilhelm, 1998 ND 140, ¶ 11, 582 N.W.2d 6). "[W]e will not reverse the trial court merely we may have viewed the evidence differently." Wahlberg v. Wahlberg, 479......
  • Moilan v. Moilan, 980268
    • United States
    • United States State Supreme Court of North Dakota
    • June 18, 1999
    ...to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made. Wilhelm v. Wilhelm, 1998 ND 140, p 11, 582 N.W.2d 6. ¶10 In determining spousal support, the court must apply the Ruff-Fischer The Ruff-Fischer guidelines apply to decisions about ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT