Delorey v. Delorey, 10664

• Citation: 357 N.W.2d 488
• Decision Date: 28 November 1984
• Docket Number: No. 10664,10664
• Parties: Conchita A. DELOREY, Plaintiff and Appellant, v. David R. DELOREY, Defendant and Appellee. Civ.
• Court: United States State Supreme Court of North Dakota

Page 488

357 N.W.2d 488

Conchita A. DELOREY, Plaintiff and Appellant, v. David R. DELOREY, Defendant and Appellee.

Civ. No. 10664.

Supreme Court of North Dakota.

Nov. 28, 1984.

McGee, Hankla, Backes & Wheeler, Minot, for plaintiff and appellant; argued by Donald L. Peterson, Minot.

Ella Van Berkom, Minot, for defendant and appellee; argued by Ella Van Berkom, Minot.

PEDERSON, Justice.

This is an appeal from a judgment granting the parties a divorce from each other. Conchita Delorey (Conchita) argues that the trial court erred in awarding her support of $300.00 per month for twelve months and seeks an award of $400.00 per month permanent alimony. David Delorey (David) has moved to dismiss the appeal on the grounds that Conchita has accepted substantial benefits under the judgment. We do not find from the record that Conchita has accepted substantial benefits and deny the motion to dismiss. We reverse the trial court's award of spousal support and remand for reconsideration in accordance with this opinion.

Conchita, who is in her late thirties, is a citizen of the Republic of the Philippines and has no relatives in the United States. She married David, who is in his early forties, in 1971 at Clark Air Force Base in the Philippines, where he was stationed. The parties remained in the Philippines until 1973, when David was transferred to Virginia. They returned to the Philippines from 1975-1977. David transferred back to the United States after that time, but Conchita did not join him in Minot until 1979.

During the time the parties resided in the Philippines, Conchita did not work outside the home because of an agreement between the United States Air Force and the Republic of the Philippines. In the United States, Conchita obtained periodic employment as an unskilled laborer, working as a housekeeper, cook and kitchen helper. She has had no formal education and no formal job training and is not fluent in the English language.

David has a high school diploma, some college credits and an Air Force job that has provided him with skills that are transferable to civilian employment. He has received two promotions and regular pay raises since the marriage. David has accumulated some funds in an Individual Retirement Account and is eligible for military retirement. In addition to his salary, he receives dental and medical care through his military service and several non-taxable "allowances" for living off the military base.

Each of the parties brought little property into the marriage and they were unable to accumulate much property during the course of the marriage. The marriage was something less than idyllic and the parties had separated several times before the final separation in March 1983. There are no children from the marriage.

Conchita apparently has a gambling problem and became involved in the black market in the Philippines, presumably to help support her gambling habit. Although David disapproved of Conchita's gambling, he gave her money when she asked for it and did nothing to encourage her to seek professional help for her problem. At the time of the trial, Conchita was sharing an apartment with a male Air Force employee and was unemployed.

The trial court, in its findings of fact, determined that Conchita had not given up any opportunities for the marriage and thus was not disadvantaged by the dissolution. The court noted that Conchita "needs some assistance until she can either find a decent job or remarry. Such support cannot be justified in terms of alimony. It could be justified in the form of partial property distribution." (Finding of Fact VIII; emphasis added.) In its Conclusion of Law V, however, the court ordered David to pay Conchita "as support money", $300.00 per month for a period of twelve months. The court also found that no retirement had vested in David because he was still on active duty and concluded, as a matter of law, that an unvested military pension could not be considered in property distribution.

It is perhaps unfortunate that the terms alimony and spousal support continue to be used interchangeably. Alimony in the traditional sense is viewed as a continuation of the right of one spouse to be supported by the other during marriage. This court has explicitly rejected that approach. See Carr v. Carr, 300 N.W.2d 40, 46 (N.D.1980). The purpose underlying alimony or spousal support today is rehabilitative, to allow the disadvantaged party time and resources to acquire new skills. It can be for a limited period of time or it can be permanent to provide the traditional maintenance for a party incapable of rehabilitation. See, e.g., Smith v. Smith, 326 N.W.2d 697, 700 (N.D.1982); Briese v. Briese, 325 N.W.2d 245, 248-49 (N.D.1982); Gooselaw v. Gooselaw, 320 N.W.2d 490, 493 (N.D.1982). How "alimony" payments are treated depends on the nature of the payments, i.e., whether they are actually a form of property division or spousal support. Spousal support is subject to modification upon proof of changed circumstances, while property division is a final determination. See generally, Seablom v. Seablom, 348 N.W.2d 920, 923-25 (N.D.1984). In this case, the trial court specifically stated that the payments were a form of property distribution and we will regard them as such on this appeal. ¹

Section 14-05-24, NDCC requires the court to distribute the parties' real and personal property "as may seem just and proper." The court's distribution will not be disturbed unless it is clearly erroneous, either because it lacks substantial evidentiary support or because it was induced by an erroneous view of the law. Jondahl v. Jondahl, 344 N.W.2d 63, 70 (N.D.1984); Winter v. Winter, 338 N.W.2d 819, 822 (N.D.1983). The court's distribution in this case was induced by an erroneous view of the law, that an unvested military pension cannot be considered in the distribution of the marital estate.

The availability of a military retirement pension as a divisible asset for purposes of a property division has undergone several changes within the past few years. The United States Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) held that federal law precluded a state court from dividing military nondisability retirement pay pursuant to state community property laws. Congress reacted to the Supreme Court decision by enacting the Uniformed Services Former Spouses' Protection Act, Pub.L No. 97-252, 96 Stat. 730 (1982), codified at 10 U.S.C. Sec. 1408 (1982). We recently had occasion to consider the Act's effect in Bullock v. Bullock, 354 N.W.2d 904, 906-08 (N.D.1984), and noted that many states have ruled that the Act's effect is to allow each state to make the final decision concerning the divisibility of military nondisability retirement pay.

This court, in Webber v. Webber, 308 N.W.2d 548 (N.D.1981), remanded a trial court's decision that military retirement benefits were property rights constituting marital assets subject to distribution. The remand was based on the Supreme Court's McCarty decision. In Rust v. Rust, 321 N.W.2d 504 (N.D.1982), we determined that military retirement pay is not a divisible asset for property division...