Bauer v. Bauer, 10671

• Decision Date: 30 October 1984
• Docket Number: No. 10671,10671
• Citation: 356 N.W.2d 897
• Parties: Donna BAUER (now Oltmanns), Plaintiff and Appellee, v. Gary L. BAUER, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 897

356 N.W.2d 897

Donna BAUER (now Oltmanns), Plaintiff and Appellee, v. Gary L. BAUER, Defendant and Appellant.

Civ. No. 10671.

Supreme Court of North Dakota.

Oct. 30, 1984.

Mack, Moosbrugger, Ohlsen & Dvorak, Grand Forks, for plaintiff and appellee; argued by Richard A. Ohlsen, Grand Forks.

Thomas B. Jelliff, Grand Forks, for defendant and appellant.

GIERKE, Justice.

Gary Bauer has filed an appeal from an order denying his request to terminate his alimony obligation to his former wife, Donna (Bauer) Oltmanns. We affirm in part and reverse in part.

The original divorce decree was entered as a result of a stipulated agreement by the parties. Under that decree, Gary was obligated to pay Donna "$50.00 per month as and for alimony for life." The decree also provided that if Donna commenced a program of higher education within five years Gary was obligated to pay, as additional alimony, all of Donna's school expenses for a maximum period of seven school years. It is undisputed that the foregoing "alimony" constitutes an obligation for payment of spousal support and not for payment as part of a property division.

Donna remarried approximately ten months after her divorce from Gary. Thereafter, Gary filed a motion requesting the district court to modify the original divorce decree, asserting that Donna's remarriage was a change of circumstances warranting a termination of Gary's alimony obligations. The district court entered an order denying Gary's motion from which he has filed this appeal.

Proof that the spouse receiving spousal support payments has remarried establishes a prima facie case requiring the court to terminate the support payments unless there are extraordinary circumstances which justify continuance of the payments. Nugent v. Nugent, 152 N.W.2d 323 (N.D.1967); see also Seablom v. Seablom, 348 N.W.2d 920 (N.D.1984); Nastrom v. Nastrom, 262 N.W.2d 487 (N.D.1978). The district court determined that there were extraordinary circumstances justifying the continuance of Gary's support payments to Donna "evidenced by the disparity of education between the parties upon leaving the marriage and the documented contemplation of the parties that this disparity be made up to [Donna]."

The parties agree that the proper standard of review is the clearly erroneous standard under Rule 52(a), N.D.R.Civ.P.

Gary's support payments to Donna constitute two separate parts: (1) spousal support of $50 per month, and (2) payment of Donna's school expenses for her to receive a post high school education. We conclude that the trial court's finding of extraordinary circumstances justifying the continuance of the $50 per month spousal support payments after Donna's remarriage is clearly erroneous. We further conclude, however, that the trial court's finding that there are extraordinary circumstances which justify the continuation of Gary's obligation to pay Donna's education expenses after her remarriage is not clearly erroneous.

In Nugent, the movant (Milton) requested the district court to terminate his spousal support obligation to his ex-wife (Doris) on the ground that she had remarried. The district court refused to terminate the obligation but reduced the payments from one-third to one-sixth of Milton's gross monthly income. On appeal, this Court determined that there were not extraordinary circumstances which would justify the continuance of Milton's spousal support obligation to Doris subsequent to her remarriage.

In Nugent, Doris asserted that the following facts constituted extraordinary circumstances justifying her continued receipt of spousal support payments from Milton: (1) Milton was at fault and was solely responsible for the divorce which destroyed their marriage; (2) Milton acquired a medical degree during their marriage while Doris contributed to their livelihood so that Milton might continue his medical education, including specialized training; and (3) The man Doris remarried earned approximately one-half of Milton's annual salary, had children of his own to support, and had medical expense obligations which placed him in a financial condition under which he could not support Doris in the manner in which she was supported by Milton.

This Court concluded, in a unanimous decision written by Chief Justice Erickstad:

"[W]e do not believe that such factors constitute such extraordinary circumstances as would justify the continuance of the alimony payments in this case, Doris having voluntarily elected to marry another, who now must assume the responsibility for her support." Nugent, supra, 152 N.W.2d at 329.

The similarity of the facts existing in this case with those in Nugent, supra, leads us to conclude that there are not extraordinary circumstances which would justify the continuance of Gary's $50 per month spousal support payments to Donna. The district court's finding to the contrary, based upon a disparity of education between Gary and Donna, is clearly erroneous.

While conceding that the district court retains jurisdiction to modify spousal support payments, Donna...