Reineke v. Reineke

Decision Date13 November 2003
Docket NumberNo. 20030014.,20030014.
Citation2003 ND 167,670 N.W.2d 841
PartiesFrances M. REINEKE, Plaintiff, Appellee and Cross-Appellant, v. Ronald K. REINEKE, Defendant, Appellant and Cross-Appellee.
CourtNorth Dakota Supreme Court

Brenda A. Neubauer, Neubauer & Oster, Bismarck, N.D., for plaintiff, appellee and cross-appellant.

Theresa L. Zimmerman, American Legal Services, Bismarck, N.D., for defendant, appellant and cross-appellee.

KAPSNER, Justice.

[¶ 1] Ronald K. Reineke ("Reineke") appealed from the judgment entered in the divorce action brought by Frances M. Reineke ("Michels"),1 and she cross-appealed. We affirm the judgment and remand with directions to retain jurisdiction.

I

[¶ 2] The parties married in 1983. The parties had two children, a son, born in 1985, and a daughter, born in 1988. In October 2001, Reineke began a social relationship with Betty Althoff and told Michels he wanted a divorce. The relationship with Althoff became intimate on December 31, 2001, or January 1, 2002. Michels sued for divorce in February 2002. In March 2002, Reineke, his daughter, Althoff, and Althoff's children visited a friend of Althoff's in Nebraska. Reineke and Althoff shared a room, while Reineke's daughter and Althoff's children slept in another room. Reineke stayed at Althoff's home about once a week until he moved out of the family home in April 2002.

[¶ 3] The judgment entered on December 5, 2002, granted the parties a divorce, divided the marital property, ordered Reineke to pay rehabilitative spousal support of $300 per month from November 15, 2002, through November 15, 2006, or until Michels remarries, awarded Michels primary physical custody of the children, set a visitation schedule, and ordered Reineke to pay child support of $638 per month. Reineke appealed the judgment and Michels cross-appealed.

II

Reineke's Appeal

a. Property and Support

[¶ 4] Reineke contends the court's property distribution awarded him a negative $1,823.37 and awarded Michels $34,088 and is clearly erroneous. He contends the award of rehabilitative spousal support of $300 per month for four years to Michels is also clearly erroneous.

[¶ 5] The trial court in a divorce case must equitably distribute the marital property. N.D.C.C. § 14-05-24; Sommers v. Sommers, 2003 ND 77, ¶ 8, 660 N.W.2d 586. While a property distribution need not be equal to be equitable, the trial court must explain a substantial disparity. Sommers, at ¶ 8. A trial court's determinations regarding division of property are treated as findings of fact and will not be reversed unless they are clearly erroneous. Hogan v. Hogan, 2003 ND 105, ¶ 14, 665 N.W.2d 672. There are no set rules for distributing marital property, but to assist in its determination, courts follow established caselaw setting out certain guidelines, known as the Ruff-Fischer guidelines, Hogan, at ¶ 19, derived from Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952), and Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966).

[¶ 6] Under N.D.C.C. § 14-05-24.1, a trial court in a divorce case "may require one party to pay spousal support to the other party for any period of time." We recently addressed permanent and rehabilitative spousal support in Sommers, 2003 ND 77, ¶ 16, 660 N.W.2d 586 (quoting Sommer v. Sommer, 2001 ND 191, ¶ 14, 636 N.W.2d 423) (citations omitted):

We recognize permanent spousal support and rehabilitative spousal support as two distinct remedies. Permanent spousal support is generally appropriate when the disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities lost in the course of the marriage. Furthermore, permanent spousal support may be awarded "where the marriage has been of long duration and the dependent spouse has health problems or is of such an age that adequate rehabilitation is unlikely." In contrast, rehabilitative spousal support is appropriate "when it is possible to restore an economically disadvantaged spouse to independent economic status or to equalize the burden of divorce by increasing the disadvantaged spouse's earning capacity." However, even when the disadvantaged spouse is capable of rehabilitation, our Court has recognized permanent spousal support as an appropriate remedy to ensure the parties equitably share the overall reduction in their separate standards of living.

We continued:

When justified by the facts, rehabilitative support is preferred over permanent spousal support. Fox, 1999 ND 68, ¶ 21, 592 N.W.2d 541. "Nevertheless, when there is substantial disparity between the spouse's incomes that cannot be readily adjusted by property division or rehabilitative support, it may be appropriate for the court to award indefinite permanent support to maintain the disadvantaged spouse." Id. While we have not endorsed the equalization of income between divorcing spouses as a measure of spousal support, Riehl, 1999 ND 107, ¶ 17, 595 N.W.2d 10, a difference in earning power is a proper factor for consideration in prescribing spousal support, Pfliger v. Pfliger, 461 N.W.2d 432, 436 (N.D.1990).

Sommers, at ¶ 17.

[¶ 7] "Questions of property division and spousal support cannot be considered separately or in a vacuum, but ordinarily must be examined and dealt with together, especially when there is a large difference in earning power between the spouses." Sommers, 2003 ND 77, ¶ 15, 660 N.W.2d 586. When awarding spousal support, the trial court is to apply the Ruff-Fischer guidelines. van Oosting v. van Oosting, 521 N.W.2d 93, 100 (N.D. 1994). A trial court's determination of spousal support is reviewed as a finding of fact and will only be overturned if it is clearly erroneous. Corbett v. Corbett, 2002 ND 103, ¶ 4, 646 N.W.2d 677.

[¶ 8] Thus, the Ruff-Fischer guidelines apply to both property division and spousal support, which ordinarily must be considered together, and a trial court's spousal support and property division determinations are findings of fact that are subject to the clearly erroneous standard of review. Under the Ruff-Fischer guidelines, the following factors should be considered:

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 incomeproducing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and such other matters as may be material.

Shields v. Shields, 2003 ND 16, ¶ 7, 656 N.W.2d 712 (quoting Mellum v. Mellum, 2000 ND 47, ¶ 15, 607 N.W.2d 580). "Under the Ruff-Fischer guidelines, both economic and noneconomic fault are proper factors for the trial court to consider in dividing marital property." McDowell v. McDowell, 2001 ND 176, ¶ 6, 635 N.W.2d 139.

[¶ 9] Michels was 48 years old at the time of trial. She has two years of college and works as a records clerk in a medical clinic, earning about $19,000 per year. She has multiple sclerosis. Reineke was 47 years old at the time of trial. He works as a truck driver, earning about $32,000 per year. He has diabetes and has anxiety attacks. The trial court considered the Ruff-Fischer guidelines. For the property distribution, the court considered and made findings about the parties' ages, health, and incomes, the length of the marriage, and, among other things:

For most of the marriage Ron has been a controlling spouse. Testimony was received that he demeaned Fran and would do so in public. Ron expected to be waited upon and was controlling as to finances of the marriage. Ron was involved in a relationship with Betty prior to the divorce proceedings.
....
15. The parties borrowed $10,000 from Fran's family to buy the house and are expected to pay this back. The remaining balance is approximately $8,100.

The court explained the disparity in the property distribution:

6. The Court notes the length of the marriage, the controlling nature of Ron and the actions of Ron contributing to the divorce as reasons for the unequal asset allocation. The Court further notes the loan from Fran's family for the home, if not paid back, will result in less inheritance for Fran as testified to by her mother.

The court found Michels needed rehabilitative spousal support:

12. The Court finds Fran has been disadvantaged by the marriage to Ron. Ron throughout the marriage has controlled the finances and has placed the family in a situation of debt. Such debt is with the family even though Fran's family helped to finance the home. The Court finds Fran will need a period of support to recover and be able to become self-supportive.

[¶ 10] From our review of the entire record, we conclude the trial court's property distribution and spousal support award are not clearly erroneous.

b. Child Custody

[¶ 11] Reineke contends the trial court's award of primary physical custody of the parties' teenage children to Michels is clearly erroneous.

[¶ 12] "We exercise a limited review of child custody awards in divorce cases." Schmidt v. Schmidt, 2003 ND 55, ¶ 5, 660 N.W.2d 196. Under N.D.C.C. § 14-09-06.1, a trial court must award the custody of an unmarried minor child "to a person ... as will, in the opinion of the judge, promote the best interests and welfare of the child." In making an initial custody determination, the court must determine a child's best interest and welfare by considering the following factors, when applicable, under N.D.C.C. § 14-09-06.2(1):

a. The love, affection, and other emotional ties existing between the parents and child.
b. The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the education of the child.
c. The disposition of the parents to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in lieu of
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