Carrick v. Carrick
| Decision Date | 01 April 1997 |
| Docket Number | No. C9-96-1596,C9-96-1596 |
| Citation | 560 N.W.2d 407 |
| Court | Minnesota Court of Appeals |
| Parties | In re the Marriage of Richard Aitkin CARRICK, III, Petitioner, Respondent, v. Ro Ann CARRICK, Appellant. |
Syllabus by the Court
1. In determining spousal maintenance at the time of dissolution of marriage, a trial court may not find bad faith underemployment and impute earning capacity as income where the party seeking maintenance has continued to work the same number of hours as she did at the time of separation, has been employed in the same type of position as she was during the marriage, and there is no evidence of any intent to reduce her income.
2. A spouse seeking maintenance who has been a homemaker during the marriage is not required to "rehabilitate" and find full-time employment prior to the dissolution of the marriage.
Barry A. Sullivan, Anoka, for Appellant.
Jeffrey R. Arrigoni, Woodbury, for Respondent.
Considered and decided by HUSPENI, P.J., and PARKER and MULALLY, * JJ.
Appellant contests the trial court's award of temporary spousal maintenance, the award of a nonmarital interest to respondent, the determination that appellant dissipated assets, and the distribution of property. She also requests attorney fees on appeal. Because the trial court erred in finding appellant underemployed in bad faith based on improper consideration of the homemaker's role, erred in determining respondent's income, and made insufficient findings on respondent's expenses, we reverse and remand the issue of spousal maintenance. Because the trial court did not abuse its discretion in dividing property and determining that there had been dissipation of assets, we affirm on those issues.
Appellant, Ro Ann Carrick, and respondent, Richard Carrick, were married in 1974. Respondent brought three children from a prior marriage to the household (ages 2 1/2, 3 1/2, and 9), and the parties had one child together during the marriage. All the children reached the age of majority before dissolution.
Appellant testified as to her limited education and work experience: she attended business college briefly after high school, worked as an office clerk for 18 months, worked as a general office worker for eight years, and also worked briefly as an assembler for a plastics company. Appellant did not work outside the home once she married, except for performing some work for respondent's landscaping business and operating her own "refunding" business. In 1985 she began to work part time (27-30 hours per week) for a bingo hall. She has continued this employment, working mainly as a floor clerk, and earns $6 per hour plus tips.
Respondent worked as a boilerman/engineer. In 1995 he had a gross income of $56,220.37, including overtime pay. Respondent testified he would be losing his job due to company reorganization. He stated he would probably receive a different job at a lower pay rate and without overtime. Respondent's union representative corroborated this testimony.
The trial court found that appellant was intentionally underemployed in bad faith and was capable of working full time. After imputing appellant's gross income to be her earning capacity, $20,000 per year, the court awarded temporary maintenance of $300 per month for two years. The court also found that respondent received $14,000 in nonmarital funds from the sale of his former homestead, and that he used this amount to make capital improvements on the parties' homestead.
The parties lived fairly conservatively during the marriage and saved a significant amount of money in various certificates of deposit and bank accounts. Respondent accused appellant of improperly cashing the certificates and withdrawing funds from the accounts. Appellant admitted taking the money, but offered some explanations. Respondent submitted several cancelled checks written by appellant to local casinos. Appellant also admitted taking funds for two trips to Las Vegas during the pendency of the dissolution. The court found that appellant dissipated some of the marital assets and deducted those amounts from her property award.
The trial court awarded the parties the vehicles in their possession (appellant's valued at $9,000 and respondent's valued at $1,500) and the personal property in their possession (appellant's valued at $15,000 and respondent's valued at $600).
1. Did the trial court abuse its discretion in awarding appellant temporary spousal maintenance of $300 per month?
2. Did the trial court err in awarding respondent a nonmarital interest in the parties' homestead?
3. Did the trial court err in finding that appellant dissipated assets?
4. Did the trial court abuse its discretion in determining the value of the parties' personal property?
5. Is appellant entitled to attorney fees on appeal?
The standard of review for an appeal from a maintenance award is whether the trial court abused its discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn.1982). Before a reviewing court will find an abuse of discretion, a conclusion must be clearly erroneous and against logic and the facts on record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984). Appellant contends the trial court abused its discretion in awarding only temporary maintenance of $300 per month and made several erroneous findings to support the award. We find merit in appellant's argument.
A trial court may award maintenance if it finds that the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs or is unable to provide adequate self-support. Minn.Stat. § 518.552, subd. 1 (1996). When determining the amount and duration of maintenance, the court should consider eight factors, including the contribution and effect of a homemaker's role in the marriage. Id., subd. 2 (1996). When the need for a permanent award of maintenance is uncertain, the court shall order a permanent award, leaving the order open for later modification. Id., subd. 3 (1996).
Because appellant worked only part time and did not seek to change her employment situation after the parties separated, the trial court found appellant "acted in bad faith by remaining intentionally underemployed" and imputed her income to be her earning capacity. Appellant contends the trial court erred in ignoring her contributions as a homemaker in the marriage and in punishing her for maintaining the homemaker lifestyle and that it failed to recognize the value of the homemaker's role and its effect on her earning capacity. We agree.
We recognize that a trial court may impute a party's income to be her earning capacity for the purposes of setting maintenance, if it first finds that the party was underemployed in bad faith. See Bourassa v. Bourassa, 481 N.W.2d 113, 116 (Minn.App.1992) (); see also Warwick v. Warwick, 438 N.W.2d 673, 677-78 (Minn.App.1989) (). As a matter of law, however, a court may not find bad faith underemployment where, as here, a homemaker has continued to work the same part-time hours at the time of dissolution as she did during the marriage, has been employed in the same type of position as she was during the marriage, and where there is no evidence of any intent to reduce income for the purposes of obtaining maintenance.
In making its determinations, the trial court found appellant
intentionally underemployed and fully capable of working full-time. [Appellant] has above-average intelligence in numerous respects. * * * [Appellant] has failed to establish any justifiable reason for not being employed full-time and has intentionally not sought full-time employment without reasonable justification. * * * [Appellant] also acknowledged there were no medical restrictions precluding full-time employment. The Court further finds that although [appellant] spent several years as a homemaker, she also participated meaningfully in the parties' landscaping business. * * * [Appellant] has several transferable skills which would serve her well in a variety of employment opportunities resulting in wages considerably higher than her current part-time position.
While the court's findings may constitute a proper assessment of the likelihood that appellant will be successful in rehabilitating after the dissolution, the court's assessment is punitive when applied retroactively to a traditional homemaker whose work history is of a part-time nature.
There is no authority for finding bad faith underemployment at the time of an initial award of maintenance merely because a potential obligee has not yet rehabilitated when the record indicates the obligee has continued in the same employment and there is no evidence of an intent to reduce income for the purposes of obtaining maintenance. 1 Nor do we find persuasive the trial court's observation that appellant had received maintenance since the order for temporary relief issued in July 1995 and "has not made any meaningful efforts to obtain full-time employment." While the trial court might well take into consideration the receipt of maintenance for two years prior to dissolution when establishing the total number of years maintenance will be paid, we are unaware of any authority requiring that a traditional homemaker/part-time employed spouse seeking maintenance must "rehabilitate" and find full-time employment during the period between the temporary order under Minn.Stat. § 518.131 (1996) and the decree of dissolution.
Nardini v. Nardini, 414 N.W.2d 184 (Minn.1987), gives valuable guidance to trial courts as they address the issues of maintenance. Nardini recognized the unique role of a homemaker at the time of dissolution. Id. at 198. The court noted the difficulties...
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