Heinz v. Heinz, 20000298.

Decision Date29 August 2001
Docket NumberNo. 20000298.,20000298.
Citation632 N.W.2d 443,2001 ND 147
PartiesEleanor HEINZ, Plaintiff and Appellee, v. Jerome HEINZ, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Mark R. Fraase, Wegner, Fraase, Nordeng, Johnson & Ramstad, Fargo, ND, for plaintiff and appellee.

Leslie Johnson Aldrich, Johnson Law Office, Fargo, ND, for defendant and appellant.

NEUMANN, Justice.

[¶ 1] Jerome Heinz appealed from a divorce judgment, arguing the trial court erred in distributing the marital property, in awarding Eleanor Heinz spousal support, and in calculating her child support obligation. We affirm the property distribution and the award of spousal support, but we reverse the child support award and remand for recalculation.


[¶ 2] Jerome and Eleanor Heinz married in 1976. At the time of trial, Jerome was 50 and Eleanor was 48 years old. They have two children: a daughter, born in 1984; and a son, born in 1989. During the marriage, Jerome was employed as a teacher with the West Fargo School District, and at the time of trial, was in the process of obtaining a master's degree. During summer months, Jerome also worked as a crop insurance adjuster. Eleanor, who had a secretarial certificate from Interstate Business College, worked full-time for several employers during the marriage. After an unsuccessful attempt at marriage counseling, Eleanor sued Jerome for divorce in fall 1999.

[¶ 3] The trial court granted the divorce, awarded custody of the children to Jerome, and ordered Eleanor to pay $469 per month in child support based on the parties' trial stipulation that Eleanor's net monthly income for child support purposes was $1,596. The court further ordered that Eleanor's child support obligation will be reduced to $234.50 per month when the oldest child reaches the age of majority. Concerning the property distribution, the court ordered the marital home to be sold and the proceeds to be split equally between the parties. The court further ordered that Eleanor receive one half of Jerome's retirement account at the time judgment was entered, to be transferred under a qualified domestic relations order. Of the remaining marital property, Eleanor was awarded a net amount valued at $64,840.57, and Jerome was awarded a net amount valued at $71,683. The court also ordered that Jerome pay Eleanor $700 per month in rehabilitative and permanent spousal support for eight years, and then $400 per month in permanent spousal support thereafter until Eleanor remarries, she reaches the age of 65, or either party dies. Jerome appealed.


[¶ 4] Jerome argues the property distribution is inequitable because the trial court failed to add his trial attorney fees of $12,000 to his debts, ordered him to pay $3,500 for Eleanor's attorney fees, and failed to consider Eleanor's fault in engaging in two extramarital affairs during the marriage and in mismanaging the parties' joint checking account.

[¶ 5] In a divorce, the trial court must distribute the marital property equitably between the parties. N.D.C.C. § 14-05-24. All of the parties' assets, regardless of the source, must be considered to ensure an equitable distribution of the marital property. Kautzman v. Kautzman, 1998 ND 192, ¶ 10, 585 N.W.2d 561. A trial court's distribution of marital property need not be equal to be equitable, but the court must explain any substantial disparity. Corbett v. Corbett, 2001 ND 113, ¶ 12, 628 N.W.2d 312. In distributing marital property, the trial court must apply the guidelines established under Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952) and Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966):

These guidelines allow the trial court, in making a property distribution, to consider the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical conditions; their financial circumstances as shown by the property owned at the time; its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and such other matters as may be material.

Freed v. Freed, 454 N.W.2d 516, 520 n. 3 (N.D.1990). Under the Ruff-Fischer guidelines, both economic and noneconomic fault are proper factors for the trial court to consider in dividing marital property. Hoverson v. Hoverson, 2001 ND 124, ¶ 17, 629 N.W.2d 573.

[¶ 6] A trial court's determinations regarding division of marital property are treated as findings of fact that will not be reversed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). Northrop v. Northrop, 2001 ND 31, ¶ 8, 622 N.W.2d 219. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, upon review of the entire evidence, we are left with a definite and firm conviction a mistake has been made. Peterson v. Peterson, 1999 ND 191, ¶ 6, 600 N.W.2d 851.

[¶ 7] It is apparent from the trial court's comments at the conclusion of the trial that the court intended to divide the marital property equally. The parties were married 24 years, and "a lengthy marriage, in general, supports an equal division of all marital assets." Young v. Young, 1998 ND 83, ¶ 10, 578 N.W.2d 111. The court equally divided the parties' largest assets, the marital home and Jerome's retirement account. The remainder of the marital assets consisted mainly of annuities, investment accounts, insurance policies, vehicles, and household items. Of the remainder of the marital property, the court awarded Eleanor assets totaling $69,186.82, and debts totaling $4,346.25, for a net distribution of $64,840.57. The court awarded Jerome assets totaling $84,155.39, and debts totaling $12,392.39, for a net distribution of $71,683. Under the trial court's distribution, Jerome received almost $7,000 more than Eleanor. Jerome failed to list any attorney fees in his N.D.R.Ct. 8.3 property and debt listing. Even considering those attorney fees as a debt not considered by the trial court, we see no substantial disparity in the property distribution. See, e.g., Halvorson v. Halvorson, 482 N.W.2d 869, 871 (N.D.1992).

[¶ 8] Eleanor admitted to two extramarital affairs during the marriage. According to Eleanor, the first occurred eight years before trial because of Jerome's lack of attention to their marriage. Eleanor further testified Jerome had no knowledge of the affair, and it did not contribute to the breakup of the marriage. According to Eleanor, the second occurred after the parties had separated and she had sued for divorce, and the relationship had ended by the time of trial. Although Eleanor occasionally overdrew their joint checking account, she testified Jerome caused tension in the marriage by contributing too much income to inaccessible retirement accounts rather than to "the needs of the household." The trial court found both parties were credible witnesses.

[¶ 9] We conclude the trial court's division of marital property is not clearly erroneous.


[¶ 10] Jerome argues the trial court erred in awarding Eleanor rehabilitative and permanent spousal support of $700 per month for eight years and permanent spousal support of $400 per month thereafter.

[¶ 11] Upon granting a divorce, a trial court may compel either party to make such suitable allowances to the other for support as the court may deem just. N.D.C.C. § 14-05-24. Property division and spousal support are interrelated, Weigel v. Weigel, 2000 ND 16, ¶ 6, 604 N.W.2d 462, and the Ruff-Fischer guidelines also apply when determining whether spousal support should be awarded. Hoverson, 2001 ND 124, ¶ 31, 629 N.W.2d 573. In Corbett, 2001 ND 113, ¶ 18, 628 N.W.2d 312, we explained:

"Spousal support is aimed at balancing the burdens and disadvantages created by the divorce. We recognize permanent and rehabilitative spousal support as two distinct remedies. Permanent support is appropriate when the economically disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities and development she lost during the course of the marriage.
Rehabilitative spousal support, on the other hand, is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of divorce by increasing the disadvantaged spouse's earning capacity. There are two approaches to awarding rehabilitative spousal support. One is the `minimalist doctrine' which has as its objective rehabilitating the recipient for minimal self-sufficiency. We have rejected this doctrine in favor of the more `equitable' approach to determining rehabilitative spousal support, which attempts to provide education, training, or experience that will enable the recipient to achieve `adequate' or `appropriate' self-support while improving her employment skills."

(quoting Riehl v. Riehl, 1999 ND 107, ¶¶ 11-12, 595 N.W.2d 10). A disadvantaged spouse is one who has foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse's increased earning capacity. Johnson v. Johnson, 2000 ND 170, ¶ 49, 617 N.W.2d 97. A trial court's determination on spousal support is treated as a finding of fact which will not be set aside on appeal unless clearly erroneous. Schiff v. Schiff, 2000 ND 113, ¶ 42, 611 N.W.2d 191. [¶ 12] The trial court's findings on spousal support are sparse, with the court merely saying it had considered the Ruff-Fischer guidelines in making its award. However, detailed findings, while helpful, are not required if we can determine the reasons the trial court granted the award. Wolf v. Wolf, 557 N.W.2d 742, 744 (N.D.1996). We can discern the reasons from the record. At the time of trial, Jerome was 50 years old, Eleanor was 48 years old, and both parties were in good health. Eleanor was ...

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