Donarski v. Donarski

• Decision Date: 30 June 1998
• Docket Number: No. 970379,970379
• Citation: 581 N.W.2d 130,1998 ND 128
• Parties: Janet E. DONARSKI, Plaintiff and Appellee, v. Kenneth M. DONARSKI, Defendant and Appellant. Civil
• Court: North Dakota Supreme Court

Page 130

581 N.W.2d 130

1998 ND 128

Janet E. DONARSKI, Plaintiff and Appellee, v. Kenneth M. DONARSKI, Defendant and Appellant.

Civil No. 970379.

Supreme Court of North Dakota.

June 30, 1998.

Alisha Lynn Ankers, Fargo, for plaintiff and appellee.

Monty G. Mertz, of Mertz Law Office, Fargo, for defendant and appellant.

NEUMANN, Justice.

¶1 Kenneth Donarski appealed from a judgment of divorce, claiming the trial court committed numerous errors in dividing the marital property and in awarding child support and spousal support. We hold the court's findings underlying its award of post- minority medical and college expenses for BethAnn are inadequate and the court must reconsider that issue. We affirm in part, reverse in part, and remand.

¶2 Kenneth and Janet Donarski were married in 1974. Janet's daughter from a prior marriage, Amy, age 27, was adopted by Kenneth after he and Janet married. Kenneth and Janet also have two children of this marriage, Nathan, age 21, and BethAnn, age 16.

¶3 Kenneth graduated from the University of North Dakota in 1975 with a bachelor's degree in social work. The family resided in Grand Forks where Kenneth worked first as a housing rehabilitation specialist and then as Director of the Grand Forks Housing Authority. In March 1992, Kenneth accepted the position of Director of the Fargo Housing Authority, and the family moved to Fargo. After receiving her high school diploma, Janet received one year of medical technical training and an additional year of junior college. Throughout the marriage Janet assumed various minimum wage part-time jobs while she was the primary homemaker and caregiver for the children.

¶4 Irreconcilable differences developed in the marriage, and in December 1996 Janet filed for divorce. After a hearing, the court granted Janet a divorce, divided the marital property, awarded Janet custody of BethAnn and permanent spousal support, and awarded child support for BethAnn. Kenneth appealed.

I

¶5 The trial court awarded Janet permanent spousal support of $400 per month until Kenneth's child support obligation for BethAnn terminates. Thereafter, the court awarded Janet spousal support of $750 per month until her death or remarriage. Kenneth asserts the court's award of permanent spousal support is clearly erroneous. Kenneth claims Janet can either seek further education to increase her earning potential or she can work full time selling Tupperware, a business she has engaged in part time throughout the marriage, to earn a satisfactory income.

¶6 The trial court's determination on spousal support is a finding of fact which will not be set aside unless clearly erroneous. Orgaard v. Orgaard, 1997 ND 34, p 5, 559 N.W.2d 546. Under this standard we reverse only if there is no evidence to support a finding or if, upon review of the entire evidence, we are left with a definite and firm conviction the trial court has made a mistake. Id. Under N.D.C.C. 14-05-24, the trial court is authorized to "compel either of the parties ... to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively." In determining the spousal support issue, it is appropriate for the court to consider the standard of living of the parties in a long-term marriage and the need to balance the burdens created by the separation when it is impossible to maintain two households at the pre-divorce standard of living. Gronland v. Gronland, 527 N.W.2d 250, 253 (N.D.1995). Permanent support is not limited to a spouse who is incapable of any rehabilitation, but may be awarded to a spouse incapable of adequate rehabilitation or self support. Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D.1994). When there is substantial disparity between the parting spouses' incomes that cannot be readily adjusted by property division or rehabilitative support, it may be appropriate for the court to award indefinite permanent support to maintain the disadvantaged spouse. Glander v. Glander, 1997 ND 192, pp 17 and 18, 569 N.W.2d 262.

¶7 The trial court made several findings in support of its award of permanent spousal support. The court found Janet, age 49, was in good health except for a back injury which restricted her lifting. At the time of the trial Janet was engaged in three part-time positions earning a total net monthly income of $490. Kenneth was earning, after deductions for taxes and the cost of BethAnn's health insurance, a net monthly income of $3,200. The court also found Kenneth had made inappropriate sexual advances toward the eldest daughter, Amy, which "justified [Janet's] unease with leaving the children in [Kenneth's] unsupervised care" and "prevented [Janet] from pursuing more challenging careers." The court concluded:

"Janet is in need of permanent spousal support due to her limited marketable job skills, limited job experience, and sparse employment history. Janet's income, even when viewed in the best possible light in the foreseeable future, will not reach the level which is expected to be enjoyed by Kenneth."

¶8 The court, upon considering Janet's age, health, and work history, concluded Janet needs indefinite support. Janet's limited marketable job skills are the result, at least in part, of Kenneth's inappropriate sexual conduct toward Amy which necessitated Janet's close guarding of the children while in the home and prevented her from pursuing an outside career. The court also considered the substantial disparity in income between the parties. We are not left with a definite and firm conviction the trial court, under these circumstances, made a mistake. We conclude, therefore, the trial court's award of permanent spousal support is not clearly erroneous.

II

¶9 In its judgment, the trial court provided that Kenneth "shall be subject to an income withholding order for the payment of spousal support." Kenneth claims there is "no statutory or other authority" for the court to make such an order and it should be set aside.

¶10 Under N.D.C.C. 14-09-09.11, a judgment or order requiring the payment of child support may be enforced by an income withholding order. See Steffes v. Steffes, 1997 ND 49, p 16, 560 N.W.2d 888. Under N.D.C.C. 14-05-25.2, any order or judgment for the support of a spouse or former spouse may be "enforced in any manner provided for the enforcement of an order for the payment of child support under chapter 14-09...." We, therefore, find no error in the trial court making Kenneth's spousal support payments subject to an income withholding order.

III

¶11 The trial court required Kenneth to secure his spousal support obligation "with a life insurance policy or policies with a death benefit of not less than $50,000.00," making Janet the "sole beneficiary" of that insurance. The trial court also required Kenneth to secure his child support obligation for BethAnn with a $10,000 life insurance policy, naming BethAnn as the primary beneficiary of that insurance. Kenneth asserts the trial court had no authority to require him to secure his spousal support and child support obligations with life insurance.

¶12 N.D.C.C. 14-05-25, provides, in relevant part:

"The court may require either party to give reasonable security for providing maintenance or making any payments required under the provisions of this chapter and may enforce the same by appointment of a receiver or by any other remedy applicable to the case."

It is appropriate for the trial court to secure support obligations with life insurance, especially in circumstances as exist here, where the obligor has existing policies of insurance on his life and can designate the obligee the beneficiary of the insurance proceeds. See Gierke v. Gierke, 1998 ND 100, p 49, 578 N.W.2d 522. We conclude the court did not err in securing Janet and BethAnn's support with life insurance.

IV

¶13 The trial court ordered Kenneth to make health insurance available to Janet "through COBRA for 3 years" and ordered Kenneth to pay for Janet's health insurance premiums until his child support obligation terminated. Thereafter, Janet is responsible for her health insurance premiums. The court also made Janet responsible for all of her medical care not covered by insurance. Kenneth asserts the trial court's order requiring him to pay for Janet's health insurance premiums is clearly erroneous.

¶14 Under appropriate circumstances, the court can order one spouse to pay for the other's health insurance premiums as part of the spousal support obligation. See, e.g., Routledge v. Routledge, 377 N.W.2d 542, 544-546 (N.D.1985). Considering the parties' disparate incomes and the availability of health insurance for Janet through Kenneth's employer, the trial court found it appropriate to require Kenneth to make health insurance available to Janet and to pay the premiums until Kenneth's child support obligation for BethAnn terminates. Kenneth has provided no persuasive authority or argument why, under these circumstances, the court's order is clearly erroneous. We are not left with a definite and firm conviction the trial court made a mistake imposing this limited health insurance obligation upon Kenneth for Janet.

V

¶15 The court ordered Kenneth to maintain health insurance for BethAnn. See N.D.C.C. 14-09-08.10. The court also ordered him to "pay all mental, physical, dental, orthodontal, and optometrist care not covered by insurance." Kenneth asserts the court's requirement that Kenneth pay for BethAnn's medical expenses not covered by insurance is clearly erroneous and without authority. The trial court's determination on child support is a finding of fact and will be affirmed unless it is clearly erroneous. N.D.R.Civ.P. Rule 52(a); Harty v. Harty, 1998 ND 99, p 14, 578 N.W.2d 519. Under the child support guidelines, payments made by an obligor for the child's actual medical expenses are deducted from the obligor's monthly gross...