Lohstreter v. Lohstreter, 20000094.

• Decision Date: 05 March 2001
• Docket Number: No. 20000094.,20000094.
• Citation: 623 N.W.2d 350,2001 ND 45
• 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: North Dakota Supreme Court

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.

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, 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 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 trial court's denial of spousal support because we were "left with a definite and firm conviction that a mistake has been made in saddling Kathy with her entire educational debt and denying her any spousal support." Id. at ¶ 27. Kathleen's subsequent remarriage does not affect our holding that Bruce needs to reimburse Kathleen for the rehabilitation expenses she incurred prior to the divorce that were not equitably shared. See Van Klootwyk v. Van Klootwyk, 1997 ND 88, ¶ 20, 563 N.W.2d 377

.

[¶ 13] Bruce also contends the trial court erred by awarding Kathleen spousal support because Kathleen's underdeveloped earning capacity has been restored while his income has declined substantially. Spousal support payments may be modified only upon a showing of a material change of circumstances which justifies a modification. Pearson v. Pearson, 2000 ND 20, ¶ 12, 606 N.W.2d 128. A "material change" is something which substantially affects a party's financial abilities or needs, and the reason for changes in income must be examined as well as the extent the changes were originally contemplated by the parties. Id. Not every financial change in circumstances justifies a modification, and when the change is self-induced no modification is warranted. Greenwood v. Greenwood, 1999 ND 126, ¶ 16, 596 N.W.2d 317.

[¶ 14] In Lohstreter, 1998 ND 7, ¶ 18, 574 N.W.2d 790, we stated this family's financial instability was largely attributable to Bruce's actions such as his frequent changes in employment resulting from alcohol abuse and overspending. By the time of the divorce trial in September 1996, Bruce had changed employers at least ten times in a few years, decreasing from his career-high earnings in excess of $72,000 to an annual salary of $50,000. Id. at ¶ 18. After the trial, Bruce lost his job in October 1996, he lost his next job in November 1997, and in January 1999, he lost another job. Bruce was working as a general laborer at the time of the trial in November 1999, but plans to work selling life insurance, annuities and trust products once his license to sell insurance, which lapsed because of Bruce's failure to maintain continuing education credits, is reinstated. Kathleen's spousal support is in the nature of reimbursement for past expenses incurred to enable Kathleen to live without future support from Bruce. Bruce's current income is not indicative of his ability to earn income. Under these circumstances, we conclude the trial court was not clearly erroneous in ordering Bruce to pay rehabilitative spousal support of $16,700 to reimburse Kathleen for education expenses.

III

[¶ 15] Bruce argues the trial court abused its discretion by awarding Kathleen one-half of her attorney fees because Bruce no longer has the ability to pay and Kathleen no longer has the need for such support.

[¶ 16] An award of attorney fees is within the sound discretion of the trial court and will not be set aside absent an abuse of discretion. Weigel v. Weigel, 2000 ND 16, ¶ 16, 604 N.W.2d 462. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner or when its decision is not the product of rational mental process. Id. In deciding whether to award attorney fees in a divorce action, the...