Hoverson v. Hoverson, 20140198.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: CROTHERS, Justice.
• Citation: 859 N.W.2d 390
• Parties: Carl Michael HOVERSON, Plaintiff and Appellee v. Sandra Morten HOVERSON, Defendant and Appellant.
• Docket Number: No. 20140198.,20140198.
• Decision Date: 12 February 2015

859 N.W.2d 390

Carl Michael HOVERSON, Plaintiff and Appellee
v.
Sandra Morten HOVERSON, Defendant and Appellant.

No. 20140198.

Supreme Court of North Dakota.

Feb. 12, 2015.

Scott D. Jensen, Grand Forks, N.D., for plaintiff and appellee.

Robert J. Schultz, Fargo, N.D., for defendant and appellant.

Opinion

859 N.W.2d 392

CROTHERS, Justice.

¶ 1] Sandra Hoverson appeals from an amended divorce judgment denying her motion to modify spousal support and parenting time, granting Carl Hoverson's motion to modify parenting time and to appoint a parenting coordinator, and granting Carl Hoverson's request for attorney fees. We affirm the amended judgment.

I

[¶ 2] In 2012, Carl and Sandra Hoverson were divorced in a judgment awarding Sandra Hoverson about $2.8 million and Carl Hoverson about $11.6 million in marital property and awarding her spousal support of $3,000 per month for two years, child support of $3,002 per month and attorney fees. The judgment granted Sandra Hoverson primary residential responsibility of the parties' minor child, subject to Carl Hoverson's right to parenting time as outlined in a schedule in the judgment. We affirmed the judgment in Hoverson v. Hoverson, 2013 ND 48, ¶¶ 1, 28, 828 N.W.2d 510, holding the district court did not clearly err in distributing the parties' marital estate and in awarding Sandra Hoverson spousal support and child support and did not abuse its discretion in awarding her attorney fees.Id. at ¶¶ 12, 18, 22, 26.

[¶ 3] Carl Hoverson thereafter moved to enforce the divorce judgment's schedule for parenting time, or alternatively, for appointment of a parenting coordinator to establish a parenting time schedule consistent with the judgment. He also sought attorney fees for his motion. Sandra Hoverson moved to limit Carl Hoverson's parenting time, to modify spousal support by increasing the amount and duration of support and for attorney fees for her motion. After an evidentiary hearing, the district court modified the order for parenting time and appointed a parenting coordinator, denied Sandra Hoverson's motion for modification of spousal support and granted Carl Hoverson's request for attorney fees.

II

[¶ 4] Sandra Hoverson argues the district court clearly erred in denying her motion to increase the amount and the duration of spousal support. She claims the court clearly erred in concluding Carl Hoverson's income was irrelevant to his spousal support obligation and in finding she failed to show a substantial change in circumstances to modify his spousal support obligation. Carl Hoverson responds the court did not err in analyzing his income in the context of the court's initial award of spousal support. He also argues the court did not clearly err in finding she failed to show a material change in circumstances to modify his support obligation.

[¶ 5] Under N.D.C.C. § 14–05–24.1, a district court retains jurisdiction to modify spousal support awarded in an original divorce judgment. A party seeking modification must show a material change in financial circumstances warranting modification. Gibb v. Sepe, 2004 ND 227, ¶ 7, 690 N.W.2d 230. A material change in circumstances is a change substantially affecting the financial abilities or needs of the parties which was not contemplated at the time of the original decree. Id. In assessing whether a material change in circumstances has occurred, the reasons for changes in the parties' income or needs must be examined, as well as the extent to which the changes were contemplated at the time of the initial decree. Quamme v. Bellino, 2002 ND 159, ¶ 14, 652 N.W.2d 360. Not every change in the parties' financial circumstances justifies modification of support, and no modification is warranted when a change is self-induced.

[859 N.W.2d 393

Lohstreter v. Lohstreter, 2001 ND 45, ¶ 13, 623 N.W.2d 350.

[¶ 6] A district court's determination on a material change in circumstances warranting modification of spousal support is a finding of fact and will not be reversed on appeal unless clearly erroneous. Rothberg v. Rothberg, 2007 ND 24, ¶ 6, 727 N.W.2d 771. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction the trial court made a mistake.” Edward H. Schwartz Constr., Inc. v. Driessen, 2006 ND 15, ¶ 6, 709 N.W.2d 733 (quoting Brandt v. Somerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144). Under the clearly erroneous standard of review, we do not reassess the witnesses' credibility or reweigh conflicting evidence. Driessen, at ¶ 6. “The district court has the advantage of judging the credibility of witnesses by hearing and observing them and of weighing the evidence as it is introduced, rather than from a cold record.” Stanhope v. Phillips–Stanhope, 2008 ND 61, ¶ 10, 747 N.W.2d 79. “A district court's choice between two permissible views of the evidence is not clearly erroneous.”Id. Nor do we substitute our judgment for a district court's decision merely because we might have reached a different result. Driessen, at ¶ 6.

¶ 7] In Hoverson, we affirmed the district court's initial spousal support award and rejected Sandra Hoverson's argument for permanent spousal support, explaining:

“In conjunction with the district court's analysis of the Ruff–Fischer guidelines, the court found that the parties' marriage was short-term, that Sandra Hoverson had an established career in radiologic technologies before the marriage, that she spent significant time in Florida during the marriage and did not significantly contribute to the marital household or assist Carl Hoverson in building his career, that Carl Hoverson did not commit non-economic fault and his economic fault in transferring marital property to his sons from a prior marriage was addressed in the property distribution, that the parties' substantial disparity in income was addressed by the property distribution, that Sandra Hoverson could be equitably rehabilitated, and that she had the ability to work outside the home.

“Spousal support and property division are intertwined. Kostelecky v. Kostelecky, 2006 ND 120, ¶ 14, 714 N.W.2d 845. Sandra Hoverson was awarded about $2.8 million in the court's property distribution. Although Carl Hoverson received about $11.6 million in the property distribution and has a greater earning capacity than Sandra Hoverson, the court found she has a demonstrated earning ability outside the home and has maintained her license and continuing education credits. Sandra Hoverson's arguments generally ignore the court's findings that the parties' marriage was a short-term marriage and she could be rehabilitated. Although the duration of spousal support awarded in this case could be problematic under other circumstances, in this case, Sandra Hoverson testified she was not interested in returning to work as a radiologic technician, but has not cited specific evidence about the extent of any necessary or potential retraining.

“On this record, we conclude the district court's findings are sufficient to understand the rationale for the court's decision. We are not left with a definite and firm conviction the court made a mistake in awarding Sandra Hoverson spousal support of $3,000 per month for two years. We conclude the court's

[859 N.W.2d 394

spousal support award is not clearly erroneous.”

2013 ND 48, ¶¶ 16–18, 828 N.W.2d 510.

¶ 8] In denying Sandra Hoverson's motion to modify spousal support, the district court considered her request in the context of the court's earlier rejection of permanent spousal support and award of rehabilitative spousal support, which the court said was premised on providing her an opportunity to acquire an education and work skills to become self-supporting. In that context, the court explained Carl Hoverson's income at the time of the divorce was not a limiting factor in the initial award of spousal support and any claimed increase in his income was not a material change in circumstances. The court also explained Sandra Hoverson failed to provide sufficient evidence to...