Marschner v. Marschner

• Decision Date: 30 January 2001
• Docket Number: No. 20000172.,20000172.
• Citation: 621 N.W.2d 339,2001 ND 4
• Parties: Richard Henry MARSCHNER, Plaintiff and Appellee, v. Carol MARSCHNER, Defendant and Appellant.
• Court: North Dakota Supreme Court

621 N.W.2d 339

2001 ND 4

Richard Henry MARSCHNER, Plaintiff and Appellee, v. Carol MARSCHNER, Defendant and Appellant.

No. 20000172.

Supreme Court of North Dakota.

January 30, 2001.

Michael S. McIntee, McIntee Law Firm, Towner, ND, for plaintiff and appellee.

Kelly Ann Dillon, Minot, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Following a thirty-seven year marriage, Richard and Carol Marschner were divorced. After the divorce trial, Carol Marschner moved for a new trial, alleging, among other things, that the district court erred in including her inheritance from her mother in the marital estate and in not awarding spousal support. The district court denied the motion, and Carol Marschner appealed. We reverse and remand for further proceedings.

I

[¶ 2] Carol Marschner was married to Richard Marschner in 1962. At the time of trial she was 58 years old. Her married life was spent on the farm where she fulfilled the usual duties of a wife and mother and, like many women married to men who farm, assisted in the farming operation in various ways. Carol Marschner has some health problems, but the primary obstacles to meaningful employment are limited skills needed in the job market.

II

[¶ 3] Because Carol Marschner did not receive her inheritance until after she was separated from her husband, she argues her inheritance is separate property and should not be included in the marital estate. An asset accumulated while spouses are still married is includable in the marital estate even though the spouses are separated. Keig v. Keig, 270 N.W.2d 558, 560 (N.D.1978). However, the source of the property is a factor for the court to consider in making an equitable distribution. Linrud v. Linrud, 552 N.W.2d 342, 344 (N.D.1996); van Oosting v. van Oosting, 521 N.W.2d 93, 96 (N.D.1994).

[¶ 4] Equitable distribution of marital property is based upon the facts and circumstances of each case. Zuger v. Zuger, 1997 ND 97, ¶ 6, 563 N.W.2d 804 (citing N.D.C.C. § 14-05-24; Volson v. Volson, 542 N.W.2d 754, 756 (N.D.1996)). The findings of fact of the trial court "are presumptively correct, and the complaining party bears the burden of demonstrating on appeal that a finding of fact is clearly erroneous." Id. The district court discussed each of the Ruff Fischer guidelines in determining the value of and division of the marital property. Carol Marschner does not argue the distribution was inequitable, but rather argues the district court erred in including the inheritance in the marital estate.

[¶ 5] North Dakota law requires inclusion of inheritance in the marital estate even if the parties have separated. Keig, 270 N.W.2d at 560; Linrud, 552 N.W.2d at 344; van Oosting, 521 N.W.2d at 96. We conclude the district court correctly included the inheritance as part of the marital estate.

III

[¶ 6] Carol Marschner argues the district court erred in not awarding her spousal support. There are two types of spousal support. Permanent spousal support, to provide traditional maintenance, is appropriate for a spouse who is incapable of rehabilitation. Heley v. Heley, 506 N.W.2d 715 (N.D.1993). Rehabilitative spousal support is awarded to provide a disadvantaged spouse time and resources to acquire education, training, work skills or experience which will enable the spouse to become self-supporting. Id. An award of spousal support must be made in light of the needs of the disadvantaged spouse and of the supporting spouse's needs and ability to pay. Young v. Young, 1998 ND 83, ¶ 7, 578 N.W.2d 111 (citing Mahoney v. Mahoney, 1997 ND 149, ¶ 28, 567 N.W.2d 206).

[¶ 7] Spousal support determinations are findings of fact and will not be reversed on appeal unless they are clearly erroneous. Young v. Young, 1998 ND 83, ¶ 7, 578 N.W.2d 111 (citation omitted). A finding of fact is clearly erroneous if it has no support in the evidence or, if there is some evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Miller Enterprises v. Dog N' Cat Pet Centers, 447 N.W.2d 639, 644 (N.D.1989). A finding of fact is also clearly erroneous if it was induced by an erroneous view of the law. Manz v. Bohara, 367 N.W.2d 743, 746 (N.D.1985).

[¶ 8] The district court specifically enumerated each factor under the Ruff Fischer guidelines. The district court sought to preserve the family farm by awarding it to Richard Marschner. In doing so, the court found a "substantial disparity" existed in the distribution and therefore ordered Richard Marschner to provide Carol Marschner cash in the amount of $50,000 to be paid either in a lump sum or over ten years with interest. The district court specifically found neither party was disadvantaged, and although Richard Marschner may have had "an income-earning advantage," the cash payoff and interest awarded to Carol Marschner resulted in no disadvantage to either party.

[¶ 9] The Ruff Fischer guidelines to consider 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.

Riehl v. Riehl, 1999 ND 107, ¶ 8, 595 N.W.2d 10. The district court concluded the only factor favoring Carol Marschner was Richard Marschner's income-earning ability. The district court found, once Carol Marschner received her cash inheritance and once payments began on the liquid cash settlement, there would be no disadvantage to either party.

A

[¶ 10] "Upon granting a divorce, the trial court may compel either of the parties to make such suitable allowances to the other for support as the court may deem just." Schiff v. Schiff, 2000 ND 113, ¶ 42, 611 N.W.2d 191; N.D.C.C. § 14-05-24. "The determination whether to award spousal support must take into consideration the needs of the disadvantaged spouse and the supporting spouse's needs and ability to pay." Moilan v. Moilan, 1999 ND 103, ¶ 11, 598 N.W.2d 81, citing Kautzman v. Kautzman, 1998 ND 192, ¶ 19, 585 N.W.2d 561. A spouse is disadvantaged 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. Wahlberg v. Wahlberg, 479 N.W.2d 143, 145 (N.D.1992). A valid consideration in awarding spousal support is balancing the burden created by divorce. Id. The record reflects both Carol Marschner and Richard Marschner devoted a large portion of their lives to the Marschner family and to the family's farm. However, the district court noted the farm may no longer produce as much income. The district court further found the liquid settlement would be a "definite financial burden" on Richard Marschner, and because of this burden, Richard Marschner does not have "a much better earning-capacity level" than Carol Marschner.

[¶ 11] The district court concluded Carol Marschner acquired bookkeeping and typing skills during the marriage, and those skills would help her obtain employment. Further, the court found, even though Richard Marschner presently has a greater earning ability, the settlement payment and liquid nature of Carol Marschner's distribution resulted in no advantage to either party. Further, the district court suggested the depressed farm economy may mitigate Richard Marschner's presently greater income-earning ability.

[¶ 12] The trial court found Carol Marschner was not a disadvantaged spouse because once Carol Marschner received her cash inheritance, and once payments began on the liquid cash settlement, there would be no disadvantage to either party. But that finding conflicts with the record which clearly reflects both Carol Marschner and Richard Marschner devoted a large portion of their lives to the family's farm. Carol Marschner will no longer be able to work the family farm in order to receive a return from that investment. The trial court found Carol Marschner has been, for the majority of the marriage, a homemaker, although she had accumulated some work skills prior to the marriage and she did the bookkeeping for the farming operation. It is apparent that as a result of Carol Marschner's responsibilities as a homemaker and helper to Richard Marschner in the family operation she is a disadvantaged spouse 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.'" Riehl v. Riehl, 1999 ND 107, ¶ 9, 595 N.W.2d 10, quoting Van Klootwyk v.. Van Klootwyk, 1997 ND 88, 563 N.W.2d 377. When the marriage was dissolved, Richard Marschner retained the asset, the farm, including the home, he operated with Carol Marschner during his 37-year marriage. Carol Marschner was left with little or no experience and skills to find some other income earning vocation and, in addition, finding a new place to live and forge a new life. The burdens of the divorce are not balanced when there is no provision for spousal support for Carol Marschner. Because we are left with a definite and firm conviction that a mistake has been made, we conclude a finding that Carol Marschner was not disadvantaged by the divorce is clearly erroneous.

B

[¶ 13] Relevant to a spousal support determination is the distribution of marital property, the liquid nature of the property, and the income-producing nature of property. Wetzel v. Wetzel, 1999 ND 29, ¶ 20, 589 N.W.2d 889 (citing Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D.1994)). "Questions of property division and spousal support cannot be considered separately or in a vacuum, but must be examined and dealt with together, especially when there is a large...