Lohstreter v. Lohstreter, 20000094.

• Citation: 623 N.W.2d 350,2001 ND 45
• Decision Date: 05 March 2001
• Docket Number: No. 20000094.,20000094.
• Parties: Kathleen A. LOHSTRETER, n/k/a Kathleen A. Heintz, Plaintiff, Appellee, and Cross-Appellant, v. Bruce A. LOHSTRETER, Defendant, Appellant, and Cross-Appellee.
• Court: United States State Supreme Court of North Dakota

623 N.W.2d 350
2001 ND 45

Kathleen A. LOHSTRETER, n/k/a Kathleen A. Heintz, Plaintiff, Appellee, and Cross-Appellant,
v.
Bruce A. LOHSTRETER, Defendant, Appellant, and Cross-Appellee

No. 20000094.

Supreme Court of North Dakota.

March 5, 2001.

623 N.W.2d 351

623 N.W.2d 352

Charles L. Chapman, Chapman & Chapman, Bismarck, ND, for plaintiff, appellee and cross-appellant

Arnold V. Fleck, Fleck Law Office, Bismarck, ND, for defendant, appellant and cross-appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Bruce Lohstreter appealed a second amended judgment ordering him to pay $16,700 in spousal support and $12,000 in attorney fees. Kathleen Heintz cross-appealed claiming the trial court erred in reducing Bruce's child support payment, the trial court erred by not considering gifts from Bruce's parents as income for purposes of calculating child support, and the trial court abused its discretion in failing to require Bruce to pay all of the minor child's uninsured medical expenses. We affirm.

I

[¶ 2] Bruce and Kathleen married on March 14, 1975, and divorced on April 23, 1997. They have four children. One child is still a minor. Kathleen appealed the original divorce decree, challenging the visitation terms, division of debt, and the denial of spousal support and attorney fees. This Court affirmed the visitation terms, modified the division of debt, and reversed the denial of spousal support and attorney fees. Lohstreter v. Lohstreter, 1998 ND 7, ¶¶ 1, 37, 574 N.W.2d 790. The spousal support award was remanded for a "determination of Kathy's educational expenses to frame an appropriate award of rehabilitative spousal support." Id. at ¶ 28. Concerning attorney fees, this Court directed the trial court to determine an award of attorney fees to Kathleen for the trial and appeal "based on the financial status of the parties, her need, and Bruce's ability to pay." Id. at ¶ 37.

[¶ 3] On remand, the trial court entered an "Order For Judgment On Remittitur" on April 2, 1998. This order did not specify the amount of spousal support or attorney fees but, without specific findings and conclusions, simply reiterated the directives of Lohstreter.

[¶ 4] Bruce failed to pay his $1,063 per month child support and was ordered incarcerated in March 1999. Upon payment of $10,872.33 received from his mother, Bruce was released on March 23, 1999.

[¶ 5] On April 1, 1999, Bruce filed a motion to amend the judgment seeking modification of his child support obligation because his income had decreased substantially. Kathleen opposed the motion to modify child support and filed a cross-motion seeking an award of $18,000 in spousal support, $24,000 for attorney fees,

623 N.W.2d 353

and sought an order requiring Bruce to pay all or a share of the medical expenses of the children. A hearing was held on November 29, 1999

[¶ 6] Bruce earned $50,000 a year as an investment broker at the time of the original divorce trial in September 1996, but lost that job and two subsequent jobs. At the time of the November 1999 hearing, Bruce worked as a general laborer grossing $1383 a month. Bruce was planning to take a job selling insurance with a projected annual income of $20,000, once he reinstated his license to sell insurance. Bruce received money from his parents totaling $25,100 in 1997, $6,115 in 1998, and $22,000 in 1999.

[¶ 7] Kathleen obtained $16,700 in loans to fund her nursing education. Her attorney fees for the divorce trial and appeal totaled $24,000. Kathleen obtained her nursing degree and was working as a nurse earning $29,000 a year at the time of the November 1999 hearing. Kathleen remarried on June 12, 1999.

[¶ 8] The trial court issued a second amended judgment on January 21, 2000. The trial court reduced Bruce's child support obligation from $1,063 to $441 for April, May and June of 1999, when their third child graduated from high school. The obligation was further reduced to $330 per month from July 1999 until the youngest child graduates from high school or turns 19 years old. The trial court awarded Kathleen spousal support of $500 a month for a total of $16,700, an amount equal to the loans taken to pay for education costs for her nursing degree, and awarded attorney fees of $12,000, half of Kathleen's total attorney fees of $24,000. The trial court also ordered the parents to share equally the costs of uninsured medical expenses of the minor children.

II

[¶ 9] Bruce argues the trial court erred by ordering him to pay spousal support of $500 per month until he paid the sum of $16,700. Bruce claims there has been a material change of circumstances that justifies a change in spousal support because Kathleen is remarried and is working as a nurse and earning more than Bruce earns.

[¶ 10] A trial court's determination regarding a material change in circumstances warranting a modification of spousal support is a finding of fact and will not be reversed on appeal unless it is clearly erroneous. Greenwood v. Greenwood, 1999 ND 126, ¶ 15, 596 N.W.2d 317. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence we are left with a definite and firm conviction a mistake has been made. Schiff v. Schiff, 2000 ND 113, ¶ 10, 611 N.W.2d 191.

[¶ 11] We long ago rejected the rule that remarriage automatically terminates the obligation to pay spousal support, Nugent v. Nugent, 152 N.W.2d 323, 327 (N.D.1967), especially for rehabilitative support. Rustand v. Rustand, 379 N.W.2d 806, 807 (N.D.1986). When the circumstances are appropriate, rehabilitative spousal support may continue after the remarriage of the disadvantaged spouse. Mahoney v. Mahoney, 1997 ND 149, ¶ 31, 567 N.W.2d 206; Bullock v. Bullock, 376 N.W.2d 30, 31 (N.D.1985). In Mahoney, we held the trial court's extension of rehabilitative spousal support after remarriage was supported in part by the disadvantaged spouse's continued rehabilitative needs for a two-year internship to secure a license to practice as a psychiatric nurse. Mahoney, 1997 ND 149, ¶ 32, 567 N.W.2d 206. In Bullock, 376 N.W.2d at 31, we affirmed the continuance of rehabilitative spousal support after remarriage that was intended to pay expenses for teaching re-certification.

[¶ 12] Kathleen has already incurred the rehabilitative expense of obtaining her nursing degree. This expense was incurred near the end of the marriage. In

623 N.W.2d 354

Lohstreter v. Lohstreter, 1998 ND 7, ¶ 24, 574 N.W.2d 790, we determined "since Kathy's rehabilitation is being accomplished at her own expense, she should receive some rehabilitative spousal support to help retire her educational debt and to embark on employment." We reversed the...