Bagan v. Bagan, 11026

Decision Date20 February 1986
Docket NumberNo. 11026,11026
PartiesDiana L. BAGAN, Plaintiff and Appellee, v. Steven M. BAGAN, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Serkland, Lundberg, Erickson, Marcil & McLean, Fargo, for plaintiff and appellee; argued by Maureen Holman; appearance by Armond G. Erickson.

Stefanson, Landberg, Plambeck & Geeslin, Moorhead, Minn., for defendant and appellant; argued by Randolph E. Stefanson.

LEVINE, Justice.

In this appeal from a divorce judgment we consider the validity of awards of rehabilitative spousal support and child support which provide for a spouse and the children of the parties the continuation of the standard of living enjoyed during the marriage. We also consider the propriety of the fees awarded to the wife. We affirm in part, reverse in part, and remand.

When Diana L. Bagan and Steven M. Bagan were married in 1973, Diana was an undergraduate and Steven a medical student. During the ensuing seven years, Steven completed his training as an ophthalmologist while Diana obtained her B.A. degree and then contributed to the support of the family by teaching school from 1976 to 1980. In 1981 Steven opened a private practice in ophthalmology. Diana assisted Steven in his practice by working as his nurse, receptionist and bookkeeper for over a year. In 1985 Diana brought this action for divorce. At the time of trial Steven was 33 years old and engaged in a successful ophthalmology practice. Diana was 31 years old and not employed outside the home. The parties' three minor children were six, five, and two years old, respectively, at the time of trial.

The trial court awarded the parties joint custody of the children, their primary residency to be with Diana. The trial court divided the parties' property and awarded Diana spousal support in the amount of $5,000 per month for eight years, $1,000 per month per child in child support until each child was 18 years old, and $5,290 in attorney's and expert witness' fees.

Steven's initial argument is that the trial court erred both as a matter of law and fact in its award of spousal support to Diana.

The award of rehabilitative spousal support was based upon the trial court's finding that Diana's standard of living during the period of rehabilitative spousal support should be commensurate with the standard of living she enjoyed during the marriage, in light of the fact that this would create no financial hardship to Steven. The trial court concluded that, under the circumstances of this case, it would be unfair for Diana to suffer a reduced standard of living because of the divorce, when Steven's resources were sufficient to maintain each party's customary lifestyle.

Steven argues that an award of spousal support which allows Diana to maintain her standard of living during the rehabilitation period was induced by an erroneous view of the law in North Dakota. We disagree.

In Svetenko v. Svetenko, 306 N.W.2d 607, 612 (N.D.1981), this Court stated that maintenance of a standard of living 1 could reasonably be within the Ruff-Fischer guidelines. Thus, in dicta at least, this Court has agreed that maintenance of a standard of living may be a factor considered in making an award of spousal support. Under the Ruff-Fischer guidelines the court may consider such factors as the parties' earning abilities, their financial circumstances and station in life. Smith v. Smith, 326 N.W.2d 697 (N.D.1982). Continuance of a standard of living is a valid consideration in spousal support determinations. Other jurisdictions have specifically held so. E.g., Bassett v. Bassett, 459 So.2d 473 (Fla.App.1984); In the Matter of the Marriage of Steinbrenner and Steinbrenner, 652 P.2d 845 (Or.App.1982). Cf., Savage v. Savage, 658 P.2d 1201 (Utah 1983). (Although Savage involved a marriage of longer duration, its reasoning is applicable here).

Furthermore, in our view, it is immaterial whether the spousal support is permanent or rehabilitative. The determinative factor is the sufficiency of income to permit each party to maintain apart the standard of living enjoyed together. In this case, maintenance of Diana's standard of living was a relevant consideration because of Steven's substantial earning ability and the parties' financial circumstances. The trial court, therefore, did not err in awarding spousal support based upon Diana's earlier standard of living.

Steven next asserts that the amount of spousal and child support is clearly erroneous. We agree.

The trial court's determinations on matters of spousal and child support are treated as findings of fact which will not be set aside unless clearly erroneous. Weir v. Weir, 374 N.W.2d 858 (N.D.1985); Heller v. Heller, 367 N.W.2d 179 (N.D.1985). A finding of fact is clearly erroneous if there is no evidence supporting it. John Larson Co. v. Brunsoman, 326 N.W.2d 72 (N.D.1982); Sturdevant v. Sturdevant, 315 N.W.2d 263 (N.D.1982) (Pederson, J., specially concurring).

In determining the amount of spousal support the trial court calculated Diana's monthly expenses in finding of fact 35:

"35. ... Diana had the following monthly expenses during their separation period ...:

                "a) Home mortgage ................. $  910.00
                 b) Child care .................... $  515.00
                 c) House maintenance ............. $  241.68
                 d) Telephone ..................... $   56.00
                 e) Electricity (heat) ............ $  200.00
                 f) Water, sewer and garbage ...... $   33.00
                 g) Cable TV ...................... $   33.00
                 h) Clothing for four people ...... $  500.00
                 i) Gasoline for automobile ....... $   81.34
                 j) Van maintenance ............... $   61.60
                 k) Van insurance ................. $   27.00
                 l) Household insurance ........... $   50.00
                 m) Health insurance for Diana .... $   67.15
                 n) Dental and medical expenses ... $  250.00
                 o) Alissa's gymnastic fees ....... $   50.00
                 p) Alissa's piano lessons ........ $   35.00
                 q) Michael's tuition ............. $   50.00
                 r) Entertainment ................. $  200.00
                                                    ---------
                          Total ................... $3,360.77
                

"In addition Diana received from Steven during that time $1,710.00 in cash, which covered all miscellaneous expenses which obviously had to cover food. The total of the two would be $5,070.77. These expenses do not allow for automobile replacement (depreciation). Neither do they allow for furniture and appliance replacement or emergency expenses if they come up in running a household. They do not cover vacation costs."

While the $5,070.77 established by Diana as her total monthly expenses may not include allowances for furniture and appliance replacement, emergency household expenses or vacation costs, there is no evidence in the record from which the trial court could allocate a reasonable sum for these items. We conclude, as we must, that the trial court did not rely on speculation and did not base its award on such unsubstantiated matters. Park View Manor v. Housing Authority, Etc., 300 N.W.2d 218 (N.D.1980) (trial court's finding presumed correct); Meyer v. Russell, 55 N.D. 546, 214 N.W. 857 (1927) (in bench trial it is presumed court considered only competent evidence). With regard to the matter of automobile replacement, there was sufficient evidence in the record of the age and present value of Diana's van from which the trial court could have made a reasonable approximation of the cost of replacing it.

We conclude that the trial court's finding that Diana's monthly expenses were $5,070.77 is not clearly erroneous. We also conclude that there is an evidentiary basis for a reasonable approximation of the cost of automobile replacement. However, because the total amount awarded for spousal and child support is based on duplication and is without evidentiary support, we reverse and remand for a redetermination of either spousal support, child support, or both.

The trial court calculated the amount of child support by prorating some of the monthly expenses of $5,070.77 and duplicating others in their entirety.

Finding of fact 36 reads:

"36. The needs of the children are supported by the evidence. Items a, c, d, e, f, g, h, i, j, k, and l in the preceding paragraph [finding of fact 35] are costs wherein 75% are attributable as needs of the three children totaling $1,645.22 ($2,193.62 X 75%). Adding to this sum child care $515.00, Alissa's piano lessons $35.00, and Michael's tuition $50.00, plus an estimated food bill of a minimum of $300.00 for the three, the total would be $3,093.62. This amount exceeds the $3,000.00 allowed by this Court for the children's basic needs." 2

The trial court not only included expense items a and c...

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