Behm v. Behm, 870387
| Decision Date | 19 July 1988 |
| Docket Number | No. 870387,870387 |
| Citation | 427 N.W.2d 332 |
| Parties | Roger J. BEHM, Plaintiff and Appellant, v. Frances M. BEHM, Defendant and Appellee. Civ. |
| Court | North Dakota Supreme Court |
McGee, Hankla, Backes & Wheeler, Ltd., Minot, for plaintiff and appellant, argued by Mark V. Larson, Minot. Appearance by Orlin W. Backes.
Lundberg, Nodland, Schulz & Lervick, Bismarck, for defendant and appellee, argued by Irvin B. Nodland.
Roger Behm appealed a decree of divorce from Frances Behm, arguing that the trial court erred in awarding spousal support, in valuing certain property, and in dividing a profit-sharing fund and inherited property. We affirm.
Roger and Frances married in 1966 and divorced in 1987, when their three children, Steve, Michelle, and Nicholas, were ages 19, 12, and 7.
After they were married, Frances worked outside of the home and taught until 1974. Thereafter, she was a homemaker.
Roger worked part time and completed his college degree during the first two years of the marriage. Then he taught a year and worked another year with a large corporation in Minnesota. In 1970, the couple returned to Minot where Roger worked in the successful Behm family enterprises until 1985. At that time, Roger separated from employment with the Behm family enterprises, but he continued as a director and was paid $30,000 a year by the Behm Family Companies.
The trial court ordered Roger to pay support of $700 per month to Frances for the two younger children in her physical custody. The trial court ordered Roger to pay Frances $1,250 per month spousal support and divided all property nearly equally.
The trial court awarded an amount equal to one-half of Roger's monthly $2,500 "director's fee" from the Behm Family Companies to Frances as support. Roger complained that this was too much, in view of his available resources, and that there was "no definitive date for its termination."
The trial court found:
Roger argued that the monthly director's fee of $2,500 was his only dependable source of living expenses. While he earned about $2,300 a month from his Conoco gas station in 1986, this was largely offset by losses from his other current businesses, A & W Restaurant in Bismarck, Take and Bake pizza operations in Minot and Bismarck, and a Mini Doughnut Wagon. Besides, he claimed, gas station earnings were dwindling in 1987. Thus, Roger argued, outgo of $700 child support and $1,250 spousal support, together with social security taxes, did not leave him enough to live on.
Frances countered that his claims of income and expenses were not credible, particularly in view of expenditures he had made when he claimed he was unable to make interim support payments.
Frances had no other income, and received no income-producing property in the property distribution. Thus, it is plain that Frances was in no immediate position to support herself in the aftermath of the divorce. Spousal support was appropriate to allow her to continue her accustomed standard of living. Wheeler v. Wheeler, 419 N.W.2d 923 (N.D.1988); Bagan v. Bagan, 382 N.W.2d 645 (N.D.1986).
"[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." NDRCivP 52(a). Based on Roger's recent income and Frances' present situation, we conclude that the trial court had sufficient evidence to award spousal support of $1,250.
While no term of spousal support was fixed, the trial court made it clear that it was coordinated with the continuation of the payment of the $2,500 monthly director's fee from the Behm Family Companies. The trial court retained continuing jurisdiction over spousal support. If the director's fee is discontinued, or the Behm enterprises sold (so that Frances has income-producing assets), Roger can ask to reduce or eliminate spousal support. The trial court has the power to modify spousal Furthermore, in a post-judgment hearing, the trial court noted that spousal support could be "discontinued as soon as ... she's rehabilitated." The trial court recognized that Frances should be able to make substantial strides towards self-support in subsequent years. She is a qualified elementary teacher, but she testified that teaching jobs were scarce in the Minot vicinity. She is taking additional college courses for accreditation as a secondary teacher to increase her opportunities. The trial court did not attempt to predict when Frances might be able to support herself in keeping with her accustomed standard of living, if at all. But, we do not think that this detracts from the award of spousal support. The trial court's retained power to modify spousal support is a sufficient limitation.
support when circumstances change materially. Wheeler v. Wheeler, supra.
Under the circumstances, we conclude that the lack of a term for spousal support was not clearly erroneous.
Roger complained that the trial court over-valued two units of property assigned to him, thus skewing property division.
The Behm family owned 480 acres of farmland adjoining the highway west of Minot. The trial court valued it at $480,000, and Roger's one-tenth share at $48,000. Roger argued his share should have been valued at $34,000, following the most recent expert appraisal of the land in his mother's 1982 estate. But the chief executive officer of Behm Family Companies testified that the land was valued at $1,000 an acre for family dealings with financial institutions. We conclude that there was sufficient evidence to support the value set by the trial court.
Roger argued that the Dakota Square Conoco gas station had no value because it "was obtained with one hundred percent financing and is in the midst of a gasoline price war." He also argued that uncertainties about public access to the location depress its value. Frances' expert valued it at $95,000, but Roger claims that valuation was completely discredited by the expert's lack of knowledge about the business and its access problems. While the station netted over $27,000 income in 1986, Roger maintained that a gas war and other problems were cutting into that income during 1987. The trial court valued the station at $50,000. We conclude that value was within the range of evidence and was not clearly erroneous.
Roger complained about a $41,000 payment that he was ordered to make to Frances which the trial court described as a distribution of one-half of an $82,000 profit-sharing fund with the Behm Family Companies. This fund was withdrawn by Roger while the divorce was pending. Roger insisted that he didn't have it and had spent it, partly for the benefit of Frances and the family home, and the balance to reduce "marital" indebtedness. Frances contended that it was expended in violation of an interim order. The specific interim order restrained Roger from "disposing of or encumbering any of their property, real or personal, during the pendency of this action or until further order of the Court, except as may be necessary in the usual and ordinary course and conduct of the business," and went on to specifically refer to the $82,000 "Behm's Retirement Plan" fund. It is clear that Roger neither sought approval of the trial court nor consent of Frances in disposing of the proceeds of the...
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