Mertz v. Mertz

• Decision Date: 15 January 2015
• Docket Number: No. 20140072.,20140072.
• Parties: Darlene MERTZ, Plaintiff and Appellee v. Mervyn MERTZ, Defendant and Appellant.
• Court: North Dakota Supreme Court

858 N.W.2d 292

Darlene MERTZ, Plaintiff and Appellee

v.Mervyn MERTZ, Defendant and Appellant.

No. 20140072.

Supreme Court of North Dakota.

Jan. 15, 2015.

Kent M. Morrow, Bismarck, ND, for plaintiff and appellee.

Brenda A. Neubauer, Bismarck, ND, for defendant and appellant.

Opinion

CROTHERS, Justice.

[¶ 1] Mervyn Mertz appeals from a district court divorce judgment distributing marital assets and debts and ordering him to pay spousal support. He argues the district court erroneously awarded permanent spousal support and the district court's division of assets and debts is clearly erroneous. We reverse and remand for reconsideration of spousal support and property distribution.

I

[¶ 2] Mervyn Mertz and Darlene Mertz were married in 1996. They were married 17 years but had a relationship for over 30 years. When the couple started dating, Darlene Mertz had two young children, whom Mervyn Mertz helped raise. In 1980, the parties had a son together. All the children are now above the age of majority. Darlene Mertz was 57 years old at the time of trial and works as a public school instructional aid. Mervyn Mertz was 60 years old at the time of trial and was an ironworker, but now is disabled. Both parties have several health problems.

[¶ 3] The district court granted a divorce and awarded Darlene Mertz spousal support of $900 per month until she dies or remarries and divided the marital property. Darlene Mertz was awarded retirement funds, a vehicle and personal property, with a combined value of $76,045. She was responsible for $1,700 in marital debt, resulting in a property award with a net value of $74,345. The district court awarded Mervyn Mertz the marital home, retirement funds, vehicles and personal property, with a combined value of $272,700. He was responsible for $47,465 in marital debt, resulting in a property award with a net value of $225,235. The court ordered Mervyn Mertz to pay $75,000 to Darlene Mertz to equalize the disparity in the value of property awards.

II

[¶ 4] A district court's “decision on spousal support is treated as a finding of fact and is subject to the clearly erroneous standard [under] N.D.R.Civ.P. 52(a).” Fox v. Fox, 1999 ND 68, ¶ 22, 592 N.W.2d 541. A district court's “division of marital property is ... reversible on appeal only if clearly erroneous.” Brandner v. Brandner, 2005 ND 111, ¶ 8, 698 N.W.2d 259. “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.” Id.

III

[¶ 5] Mervyn Mertz argues Darlene Mertz failed to request spousal support in her initial complaint; instead, the complaint stated, “[N]either party shall make alimony or spousal support payments.” In Darlene Mertz's application for interim order, she requested spousal support. Mervyn Mertz argues he objected to the district court's consideration of spousal support at the interim hearing and reminded the court Darlene Mertz failed to amend her pleading. Mervyn Mertz argues the district court erred in awarding Darlene Mertz spousal support because Darlene Mertz failed to properly plead or amend her complaint.

[¶ 6] “An issue which is not properly raised in the pleadings but is tried by the express or implied consent of the parties will be treated in all respects as having been raised in the pleadings.” Schumacher v. Schumacher, 1999 ND 149, ¶ 25, 598 N.W.2d 131. “Under Rule 15(b), N.D.R.Civ.P., a pleading may be amended impliedly, by the introduction of evidence which varies the theory of the case and which is not objected to by the opposing party.” Schumacher, at ¶ 25. “Implied consent is established where the parties recognized that the issue entered the case at trial and acquiesced in the introduction of evidence on that issue.” Napoleon Livestock Auction, Inc. v. Rohrich, 406 N.W.2d 346, 357 (N.D.1987). “[W]hether the issue was tried by express or implied consent is a matter within the sound discretion of the trial court and will not be reversed on appeal unless an abuse of discretion is shown.” Id. Rule 15 “does not permit amendment to include collateral issues which may find only incidental support in the record.” Rohrich, at 357.

[¶ 7] Spousal support was requested and granted in proceedings on the interim order. Mervyn Mertz had notice of it. At trial he cross-examined Darlene Mertz regarding her need for spousal support and did not object to questions on direct examination regarding the issue. Therefore, spousal support was tried by the implied consent of the parties.

IV

[¶ 8] Mervyn Mertz argues the district court's award of spousal support is clearly erroneous. He argues the district court erroneously found Darlene Mertz to be economically disadvantaged, and nothing more. Mervyn Mertz argues he is unable to pay the debts awarded to him, his living expenses, the $75,000 cash payment, spousal support arrears and his $900 monthly spousal support obligation. The district court must consider the “supporting spouse's needs and ability to pay as well as the receiving spouse's income and needs.”Gustafson v. Gustafson, 2008 ND 233, ¶ 6, 758 N.W.2d 895.

[¶ 9] The district court “may require one party to pay spousal support to the other party for any period of time.” N.D.C.C. § 14–05–24.1. “[O]ur Court has recognized permanent spousal support as an appropriate remedy to ensure the parties equitably share the overall reduction in their separate standards of living.” Sommer v. Sommer, 2001 ND 191, ¶ 14, 636 N.W.2d 423. “A district court may award permanent spousal support ‘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.’ ” Gustafson, 2008 ND 233, ¶ 6, 758 N.W.2d 895 (quoting Wagner v. Wagner, 2007 ND 33, ¶ 8, 728 N.W.2d 318 ). “A disadvantaged spouse is one 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.” Sommer, at ¶ 10 (citations and quotation marks omitted). This Court has “dispose[d] of the ‘disadvantaged spouse’ doctrine and reemphasize[d] the importance of a comprehensive analysis under the Ruff–Fischer guidelines.” Sack v. Sack, 2006 ND 57, ¶ 12, 711 N.W.2d 157 ; Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952) ; Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966).

[¶ 10] “The district court must consider all the relevant factors under the Ruff–Fischer guidelines in determining spousal support.” Gustafson, 2008 ND 233, ¶ 6, 758 N.W.2d 895. Under the Ruff–Fischer guidelines, the court considers:

“[T]he 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.”

Weigel v. Weigel, 2000 ND 16, ¶ 6, 604 N.W.2d 462. “The court is not required to make a finding on each factor, but it must explain its rationale for its determination.” Becker v. Becker, 2011 ND 107, ¶ 28, 799 N.W.2d 53 (citation and quotation marks omitted). The district court must consider the “supporting spouse's needs and ability to pay as well as the receiving spouse's income and needs.” Gustafson, at ¶ 6. “The district court must adequately explain the basis for its decision, but we will not reverse a district court's decision when valid reasons are fairly discernable, either by deduction or by inference.” Lorenz v. Lorenz, 2007 ND 49, ¶ 9, 729 N.W.2d 692 (citations and quotation marks omitted).

[¶ 11] At trial, Darlene Mertz requested $500 spousal support per month. The district court found Darlene Mertz is a disadvantaged spouse, explaining, “Throughout the marriage, she has earned a fraction of what Mervyn earned. Mervyn contributed to the household expenses, but he spent his money as he wanted to spend it. The assets held in his name are significantly more valuable than the assets that Darlene has had.” The district court awarded Darlene Mertz $900 per month in permanent spousal support, which is outside the range of evidence presented and the needs of Darlene Mertz. See Lynnes v. Lynnes, 2008 ND 71, ¶ 16, 747 N.W.2d 93 (“When the district court's valuation is within the range of evidence provided by the parties, the district court's valuation will not be set aside, unless this Court has a definite and firm conviction a mistake has been made.”); Gustafson, 2008 ND 233, ¶ 6, 758 N.W.2d 895 (explaining the district court must consider the “supporting spouse's needs and ability to pay as well as the receiving spouse's income and needs”).

[¶ 12] We “dispose[d] of the ‘disadvantaged spouse’ doctrine and reemphasize[d] the importance of a comprehensive analysis under the Ruff–Fischer guidelines.” Sack, 2006 ND 57, ¶ 12, 711 N.W.2d 157. The district court only found that Darlene Mertz is a disadvantaged spouse, without analysis under the Ruff–Fischer guidelines. The court also awarded spousal support in excess of the amount requested. The district court's findings are inadequate and it misapplied the law.

[¶ 13] Moreover, a basis for the district court's findings cannot fairly be discerned. The district court found Mervyn Mertz's income is $3,849 per month and his monthly expenses, including paying the marital obligations, are $3,391. The district court found Darlene Mertz's monthly income is $1,400 and her monthly expenses are $1,000. The district court also ordered Mervyn Mertz to make a $75,000 cash payment to Darlene Mertz, payable within sixty days of the judgment. Mervyn Mertz argues he does not...