Ingebretson v. Ingebretson, 20040156.

• Decision Date: 22 February 2005
• Docket Number: No. 20040156.,20040156.
• Citation: 2005 ND 41,693 N.W.2d 1
• Parties: Marlin W. INGEBRETSON, Plaintiff and Appellant, v. Marla K. INGEBRETSON, Defendant and Appellee.
• Court: North Dakota Supreme Court

693 N.W.2d 1

2005 ND 41

Marlin W. INGEBRETSON, Plaintiff and Appellant, v. Marla K. INGEBRETSON, Defendant and Appellee.

No. 20040156.

Supreme Court of North Dakota.

February 22, 2005.

Douglas A. Christensen, Pearson Christensen, Grand Forks, ND, for plaintiff and appellant.

Wayne T. Anderson, Fargo, ND, for defendant and appellee.

KAPSNER, Justice.

[¶ 1] Marlin Ingebretson appeals from a divorce judgment awarding Marla Ingebretson permanent spousal support of $1,500 per month, arguing the award was improper in light of Marla Ingebretson's trial testimony. Because the district court did not adequately explain its decision in light of the testimony heard at trial, we reverse and remand for reconsideration or further explanation of the award.

I.

[¶ 2] Marlin and Marla Ingebretson were married in 1985. They have two minor children. Marlin Ingebretson was 41 years old at the time of trial and Marla Ingebretson was 40. Throughout the marriage, Marlin Ingebretson was the owner and operator of Ingebretson Air Spray, Inc., an aerial application business in Mayville. Marla Ingebretson earned a degree in elementary education at Mayville State University and held various jobs, including dental assistant, elementary teacher, Head Start coordinator, home daycare provider, and helping with Marlin Ingebretson's business during the summer months in the early years of the marriage. She stayed home for four years to raise their children and then returned to the workforce. At the time of trial, she was working as a kindergarten teacher with monthly income of $1,458. Marlin Ingebretson's average monthly income for the prior five years was $6,074.

[¶ 3] The parties enjoyed a comfortable standard of living during their marriage. They lived in the home Marlin Ingebretson was raised in, accumulated assets valued at nearly $600,000, and vacationed at destinations such as Walt Disney World, Hawaii, the Bahamas, South Dakota's Black Hills, and a resort in Minnesota.

[¶ 4] Marla Ingebretson's pretrial documents requested "a reasonable amount of spousal support" and her post-trial proposed findings of fact provided for an award of permanent support of $1,800 per month. She testified on direct and cross-examination that she thought she would need spousal support of $1,800 to $2,000 for ten years. Her only explanation for the request was that she "took some advice from [her] lawyer." Marla Ingebretson submitted and testified to monthly expenses of $5,911, but then testified on cross-examination to monthly expenses of approximately $3,000. The trial court found Marla Ingebretson's monthly expenses to be $4,851. The court further determined she was a disadvantaged spouse and ordered Marlin Ingebretson to pay permanent spousal support of $1,500 per month.

[¶ 5] Marlin Ingebretson filed a motion to amend the judgment. The district court entered an amended judgment following a hearing on the motion, but did not amend the spousal support obligation. Marlin Ingebretson appealed to this Court, arguing the spousal support award was not based on the evidence and the doctrines of judicial estoppel and judicial admission apply to Marla Ingebretson's testimony about her support needs and prohibit an award of permanent support.

II.

[¶ 6] A district court's decision on spousal support is a finding of fact that will be set aside only if it is clearly erroneous. Staley v. Staley, 2004 ND 195, ¶ 7, 688 N.W.2d 182 (citing Sommer v. Sommer, 2001 ND 191, ¶ 8, 636 N.W.2d 423). A finding is clearly erroneous when it is induced by an erroneous view of the law, there is no evidence to support it, or a review of the entire record convinces this Court a mistake has been made. Id.

[¶ 7] An award of spousal support should be based on consideration of the Ruff-Fischer guidelines. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182; see Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952)

; Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). Factors to consider under the guidelines include:

the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.

Staley, at ¶ 8 (quoting Sommer, 2001 ND 191, ¶ 9, 636 N.W.2d 423). The district court's decision should be rationally based, but it is not required to make specific findings on each factor. Staley, at ¶ 8.

[¶ 8] The district court found Marla Ingebretson's monthly living expenses to be $4,851 and Marlin Ingebretson's monthly expenses to be $3,266. The court acknowledged that teaching positions are difficult to obtain in the Mayville area and budget restraints make continued employment uncertain. The court further found:

Marla has been disadvantaged by this marriage. This is a long-term marriage and Marla contributed to the financial growth of the marital estate. Marla worked for Marlin prior to the marriage as well as during the early years of the marriage in various capacities in his business. Marla mixed chemicals; cleaned airplane windows; did the book work; set up the billing system and computer system; answered the telephone; took air-spray orders; ordered and picked up chemical; and helped rake the gravel runway before it was asphalted. Even though Marla is a teacher, her earnings will likely never come close to the earnings of Marlin.

Further, the parties enjoyed a significant standard of living during the marriage, which included extensive travel to Mexico several times; the Bahamas; Hawaii; Disney World; the Black Hills; Red Lodge; Montana skiing approximately seven (7) times; to a lake resort near Park Rapids many times; Texas; Oklahoma; and Colorado. Additionally, Marlin went hunting annually in South Dakota, traveled to Reno, Nevada several times, hunts pheasant on a game preserve in Bejeau, Minnesota annually, hunts dear [sic] annually and made several trips out of state to hunt elk.

The Court finds that Marla is in need of permanent spousal support and finds that Marlin has the ability to pay permanent spousal support in the amount of $1,500 per month.

A.

[¶ 9] Section 14-05-24.1, N.D.C.C., provides, "[t]aking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time. The court may modify its spousal support orders." This Court has frequently stated a preference for rehabilitative support rather than permanent. See, e.g., Sommers v. Sommers, 2003 ND 77, ¶ 17, 660 N.W.2d 586

; Fox v. Fox, 1999 ND 68, ¶ 21, 592 N.W.2d 541. However, we have acknowledged "when there is substantial disparity between the spouse's 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." Sommers, at ¶ 17. "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." Staley, 2004 ND 195, ¶ 16,

688 N.W.2d 182 (quoting Riehl v. Riehl, 1999 ND 107, ¶ 11, 595 N.W.2d 10). This Court has not endorsed income equalization as a measure of spousal support, but has recognized that a difference in earning power can be considered when determining spousal support. Sommers, at ¶ 17.

[¶ 10] The district court's findings, while detailed, do not provide an adequate explanation of the decision to award permanent support when Marla Ingebretson testified she only required support for ten years. While it was not erroneous for the district court to award permanent support, it was erroneous to do so without providing sufficient explanation for its decision in light of the testimony heard at trial. We reverse and remand to the district court for detailed findings justifying the award of permanent spousal support or an amended judgment changing the award to rehabilitative support. Because "[q]uestions of property division and spousal support cannot be considered separately or in a vacuum, but ordinarily must be examined and dealt with together," Sommers, 2003 ND 77, ¶ 15, 660 N.W.2d 586, and because the property division may have influenced the award and structure of spousal support, Fox, 1999 ND 68, ¶¶ 20-22, 592 N.W.2d 541, the district court may, if it amends spousal support, also reconsider the property distribution.

B.

[¶ 11] Marlin Ingebretson argues the district court's finding on Marla Ingebretson's monthly expenses is clearly erroneous. A party's need is a factor the district court can consider under the Ruff-Fischer guidelines. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182. Marla Ingebretson submitted monthly expenses of $5,911 at trial. She testified on direct examination that even if she delayed working towards her master's degree, her monthly expenses would still be about $4,900. Marla Ingebretson's testimony on cross-examination indicated her expenses were lower than those submitted. She listed $60 for counseling and therapy, then stated neither she nor the children were currently attending. She admitted she was not currently paying a monthly life insurance premium of $60. Marla Ingebretson further testified her listed expenses for credit card bills were short-term and the bills would be paid off within a year at the listed rate. She testified other expenses were speculative, or had been listed "just in case." When asked what her current actual expenses were, Marla Ingebretson stated, "around $3,000 ... give or take."

[¶ 12] The district court found Marla Ingebretson's monthly expenses did not include $1,000 for continuing education or $60 for homeowners insurance. By removing...