McDowell v. McDowell

• Decision Date: 02 November 2001
• Docket Number: No. 20010056.,20010056.
• Citation: 635 N.W.2d 139,2001 ND 176
• Parties: Sharon A. McDOWELL, Plaintiff and Appellee v. Jefferey T. McDOWELL, Defendant and Appellant.
• Court: North Dakota Supreme Court

635 N.W.2d 139

2001 ND 176

Sharon A. McDOWELL, Plaintiff and Appellee v. Jefferey T. McDOWELL, Defendant and Appellant.

No. 20010056.

Supreme Court of North Dakota.

November 2, 2001.

Carol K. Larson, Pringle & Herigstad, P.C., Minot, ND, for plaintiff and appellee.

Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Jefferey T. McDowell appealed from an amended judgment granting Sharon A. McDowell a divorce, dividing the couple's marital property, granting Sharon custody of the couple's son and Jefferey visitation rights, and ordering Jefferey to pay child support. We conclude the trial court's rulings on property distribution, spousal support, visitation and attorney fees are not erroneous. We further conclude the trial court's rulings on child custody and child support are erroneous as a matter of law. We affirm the amended judgment in part, but reverse the child custody and child support awards and remand for further proceedings.

I

[¶ 2] Sharon and Jefferey McDowell married in 1988, and had a son, Roy Dennis McDowell, born in 1990. At the time of trial, Jefferey was 36 years old and Sharon was 35 years old. During the marriage, Jefferey was initially employed as a neon tube bender at Bacon Signs in Minot earning between $8.50 and $9 per hour. In 1995, Jefferey had to leave that job because of a work-related shoulder injury. In 1996, Jefferey had surgery on his left shoulder, and his doctors have required that he not use his left shoulder for repeated overhead work and lifting. Jefferey received workers compensation benefits, including vocational rehabilitation in the form of two years of computer training for an associate of arts degree. Jefferey's tuition and books were paid for by the Workers Compensation Bureau and he received $1,400 per month for income replacement benefits while attending college. In January 1999, Jefferey obtained part-time employment at Computer Integration in Minot, working 20 to 25 hours a week for $7.50 per hour. He worked there until May 1999, when he left the family and moved to California. At the time of trial, Jefferey was a full-time student at Minot State University in the process of completing his bachelor of arts degree with financial assistance from Vocational Rehabilitation. He continues to work part-time for $7.50 per hour, and acknowledged there is no physical reason he could not work full-time at his computer job.

[¶ 3] Sharon has a two-year associate of arts degree as a legal secretary. During the marriage, Sharon worked full-time at Cargill, Inc., and at the time of trial, was earning $9.65 per hour plus other benefits. Sharon has elevated pressure in her eyes and is "glaucoma suspect," and needs anti-reflective lenses for night driving. She does not consider her eye problems to be serious. Roy was eight years old at the time of trial. He was not doing well in school and his teachers suggested he be tested for learning disabilities. Jefferey refused to allow Roy to be tested for learning disabilities because he did not want Roy to "carry a label for a lifetime." After Jefferey moved to California, Sharon had Roy tested for learning disabilities. When Jefferey returned to Minot from California in June 1999, Sharon commenced this divorce action.

[¶ 4] The trial court granted the divorce and divided the marital property, awarding Sharon a net amount valued at $34,872, and awarding Jefferey a net amount valued at $28,337. The court denied Jefferey's request that Sharon pay him spousal support. The court further awarded Sharon custody of Roy, subject to Jefferey's right of visitation, and ordered Jefferey to pay $250 per month for child support retroactive to July 1, 1999. The court also denied Jefferey's request for partial attorney fees. Jefferey appealed.

II

[¶ 5] Jefferey argues the property distribution is inequitable because Sharon received the bulk of the couple's assets.

[¶ 6] In Heinz v. Heinz, 2001 ND 147, ¶ 5, 632 N.W.2d 443, we recently summarized:

In a divorce, the trial court must distribute the marital property equitably between the parties. N.D.C.C. § 14-05-24. All of the parties' assets, regardless of the source, must be considered to ensure an equitable distribution of the marital property. Kautzman v. Kautzman, 1998 ND 192, ¶ 10, 585 N.W.2d 561. A trial court's distribution of marital property need not be equal to be equitable, but the court must explain any substantial disparity. Corbett v. Corbett, 2001 ND 113, ¶ 12, 628 N.W.2d 312. In distributing marital property, the trial court must apply the guidelines established under Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952) and Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966):

These guidelines allow the trial court, in making a property distribution, to consider the respective ages of the parties to the marriage; their earning abilities; the duration of the marriage and the conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical conditions; their financial circumstances as shown by the property owned at the time; its value and income-producing capacity, if any, and whether it was accumulated or acquired before or after the marriage; and such other matters as may be material.

Freed v. Freed, 454 N.W.2d 516, 520 n. 3 (N.D.1990). Under the Ruff-Fischer guidelines, both economic and noneconomic fault are proper factors for the trial court to consider in dividing marital property. Hoverson v. Hoverson, 2001 ND 124, ¶ 17, 629 N.W.2d 573.

[¶ 7] The trial court's determinations regarding division of marital property are treated as findings of fact and will not be reversed unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Mellum v. Mellum, 2000 ND 47, ¶ 14, 607 N.W.2d 580. 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 the reviewing court is left with a definite and firm conviction a mistake has been made. Id. at ¶ 9.

[¶ 8] The trial court found the net worth of the couple's marital property to be $63,209. The court awarded Sharon the major assets, consisting mainly of the parties' mobile home and her Cargill retirement benefits, which totaled $62,558. The court allocated to Sharon $20,439 in family debts and one-half of $14,494, or $7,247, spent by Jefferey before the divorce, for a net award of $34,872. The court awarded Jefferey property valued at $34,826, consisting mainly of bank accounts and money market and stock mutual funds and one-half of the $14,494, or $7,247, spent by Jefferey before the divorce. Jefferey was allocated $6,489 of the family debt, for a net award of $28,337. The court noted the property distribution was not equal, but was equitable under the circumstances:

Jeff left for California with the knowledge that Sharon and their son would not be following, but would remain here in Minot. Jeff closed out accounts of approximately $14,500 to travel to California and ..., at the time he closed those accounts out, the money was "family money" though some of the accounts were in his name alone. These funds are marital assets and equity requires that they be taken into consideration when making the equitable distribution of assets. While the distribution of assets is not equal, it is equitable. Sharon requires the mobile home to provide a home for the minor child. Jeff has not provided financial support for the minor child while this action has been pending, with the exception of purchasing a few items of personal property for Roy, and a limited amount of medical expenses.

[¶ 9] Jefferey argues he is innocent of the wrongful conduct attributed to him by the trial court. Jefferey testified he and Sharon agreed he would move to California to further his education and find a better job in the computer industry and Sharon and Roy would move to California when he became established. However, there is substantial evidence to support the trial court's contrary finding. Sharon testified she and Jefferey discussed his move to California and made detailed plans about how Sharon should handle financial matters in North Dakota. Jefferey offered to return his wedding ring to Sharon. Jefferey bought a second computer so he could communicate with Roy while living in California. Jefferey's "best friend" since childhood testified Jefferey introduced him on the computer to a woman in California he had met on the Internet, Jefferey told him he was "unhappy" with Sharon's vision problems and Roy's educational problems, and Jefferey said "he was leaving and he didn't care if he ever came back to North Dakota."

[¶ 10] Sharon received approximately 55 percent of the net marital estate and Jefferey received about 45 percent. The disparity is adequately explained by the trial court's finding that Jefferey used family funds and essentially abandoned the family. We conclude the trial court's distribution of marital property is not clearly erroneous.

III

[¶ 11] Jefferey argues the trial court erred in failing to award him spousal support because of his previous work-related injury and because he was "disadvantaged by the relationship."

[¶ 12] Upon granting a divorce, a trial court may compel either party to make such suitable allowances to the other for support as the court may deem just. N.D.C.C. § 14-05-24. Property division and spousal support are interrelated, and the Ruff-Fischer guidelines also apply when determining whether spousal support should be awarded. Heinz, 2001 ND 147, ¶ 11, 632 N.W.2d 443.

Spousal support is aimed at balancing the burdens and disadvantages created by the divorce. We recognize permanent and rehabilitative spousal support as two distinct remedies. Permanent support is appropriate when the economically disadvantaged spouse cannot be equitably rehabilitated to make up for the

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