Moilan v. Moilan, 980268

• Decision Date: 18 June 1999
• Docket Number: No. 980268,980268
• Citation: 598 N.W.2d 81
• Parties: Melissa M. MOILAN, Plaintiff, Appellee and Cross-Appellant, v. Arne V. MOILAN, Defendant, Appellant and Cross-Appellee.
• Court: North Dakota Supreme Court

Page 81

598 N.W.2d 81

1999 ND 103

Melissa M. MOILAN, Plaintiff, Appellee and Cross-Appellant, v. Arne V. MOILAN, Defendant, Appellant and Cross-Appellee.

No. 980268.

Supreme Court of North Dakota.

June 18, 1999.

Gary H. Lee, Olson Burns Lee, Minot, for plaintiff, appellee and cross-appellant.

Marina Spahr, Murphy & Spahr Law Office, PC, Carrington, for defendant, appellant and cross-appellee.

KAPSNER, Justice.

¶1 Arne Moilan appealed from a judgment granting a divorce, dividing the marital property, and denying spousal support to Arne. Melissa Moilan cross-appealed from the judgment. We conclude the district court's findings of fact on spousal support and property division are clearly erroneous, and we reverse and remand for further proceedings in accordance with this opinion.

I.

¶2 Arne and Melissa were married in South Dakota in 1983. At the time of the marriage Melissa was in her first year of medical school and Arne was in his final year in college majoring in electrical engineering. After Melissa completed medical school in 1987 the couple moved to Iowa, where Melissa entered a pediatrics residency program at the University of Iowa and Arne began studies for a masters degree in electrical engineering. Arne subsequently took an electrical engineering job in Cedar Rapids and commuted 100 miles daily. Arne later quit his job to return to school, and ultimately earned a masters degree in electrical and computer engineering from the University of Iowa. The couple's first child was born in Iowa in 1990.

¶3 After completing her residency program in 1990, Melissa was required to spend a four-year term in the Air Force, which had provided financial assistance for her education. The family was transferred to Shreveport, Louisiana, where Melissa served her military obligation and Arne entered the doctoral program at Louisiana Tech University. During the family's time in Louisiana their second child was born in 1994.

¶4 Melissa completed her military commitment and accepted a position as a pediatrician with Trinity Medical Center in Minot. After the family moved to North Dakota Arne initially was a stay-home dad, taking care of the children full time. Arne was also working on his doctoral dissertation, and eventually the children were placed in daycare. Arne did not finish his dissertation in the allotted time and did not receive his doctorate.

¶5 Melissa brought this action for divorce in 1997. Arne subsequently accepted a job as an applications engineer with Cannon Technologies in Carrington and moved into an apartment there.

¶6 On the first day of trial the parties stipulated Melissa would have physical custody of the children. The court awarded 61 percent of the marital property to Melissa and 39 percent to Arne. Arne was awarded extensive visitation but was ordered to bear all costs associated with the visitation. Arne was also ordered to pay monthly child support of $695. The court refused to award spousal support to Arne.

¶7 Arne appealed from the judgment, and Melissa cross-appealed.

II.

¶8 Arne asserts the trial court erred in refusing to award him spousal support.

¶9 Upon granting a divorce, the trial court may compel either party to pay spousal support. N.D.C.C. § 14-05-24; Wetzel v. Wetzel, 1999 ND 29, p 20, 589 N.W.2d 889. The trial court's determination on spousal support is a finding of fact which will not be set aside on appeal unless clearly erroneous. Wetzel, at p 20; Kautzman v. Kautzman, 1998 ND 192, p 19, 585 N.W.2d 561. 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. Wilhelm v. Wilhelm, 1998 ND 140, p 11, 582 N.W.2d 6.

¶10 In determining spousal support, the court must apply the Ruff-Fischer guidelines:

The Ruff-Fischer guidelines apply to decisions about the amount and duration of spousal support, and require consideration of:

" '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.' "

Gierke v. Gierke, 1998 ND 100, p 21, 578 N.W.2d 522 (quoting Van Klootwyk v. Van Klootwyk, 1997 ND 88, p 14, 563 N.W.2d 377).

¶11 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. Kautzman, 1998 ND 192, p 19, 585 N.W.2d 561. The court may also consider the accustomed standard of living of parties in a long-term marriage and the need to balance the burden created by the separation when it is impossible to maintain two households at the pre-divorce standard of living. Fox v. Fox, 1999 ND 68, p 20, 592 N.W.2d 541; Donarski v. Donarski, 1998 ND 128, p 6, 581 N.W.2d 130. Rehabilitative support is appropriate when one spouse has bypassed opportunities or lost advantages as a consequence of the marriage or when one spouse has contributed during the marriage to the other's increased earning capacity or moved to further the other's career. Welder v. Welder, 520 N.W.2d 813, 819 (N.D.1994); see also Hogue v. Hogue, 1998 ND 26, p 26, 574 N.W.2d 579. Also significant to the determination of spousal support is whether there is a substantial disparity in earning capacity, and where there is a substantial income disparity which cannot be readily adjusted by property division or rehabilitative support, permanent spousal support may be appropriate. Fox, at p 21; Donarski, at p 6.

¶12 All of the above factors militate in favor of an award of support to Arne. Arne has a demonstrated need for additional financial support, and Melissa has the ability to pay support. Melissa earns $121,000 annually, nearly four times Arne's $34,000 salary. Melissa is living in the family home, valued at $180,000; Arne is living in a two-bedroom apartment. Arne turned down job offers and moved with Melissa when her educational or career plans dictated, and at times performed the role of stay-at-home dad so Melissa could pursue her career.

¶13 Although these facts all suggest Arne has been disadvantaged by the divorce and spousal support is warranted, the trial court found Arne was not disadvantaged by the divorce:

[Arne] earns less money than [Melissa], but is currently practicing in his chosen professional field, albeit now for only a few months. He has ample opportunity to progress in his professional field both within, and without the State of North Dakota. [Arne] has had health problems, but those problems have now been resolved, and all expenses for those medical problems were paid for by [Melissa]. [Arne] was not disadvantaged by this marriage. [Melissa] urged him to continue his education and basically paid the expenses of that education. [Arne] is not in need of rehabilitation as he is fully self-supporting, and working in his chosen professional field.

¶14 We rejected an identical argument, and reversed and remanded for an award of spousal support, in Van Klootwyk v. Van Klootwyk, 1997 ND 88, 563 N.W.2d 377. In Van Klootwyk, the husband earned $76,000 annually. The wife earned a bachelor's degree in nursing during the marriage and completed a degree in a nurse practitioner program after the parties separated. She had made $30,000 annually as a nurse and had a salary potential of up to $55,000 as a nurse practitioner.

¶15 The trial court refused to award spousal support to the wife, finding she was not disadvantaged by the divorce because she "received education during the marriage, has an adequate salary and is self supporting." Id. at p 14. We concluded the trial court had erroneously applied an incorrect view of spousal support:

There are two different concepts of rehabilitative spousal support. See Marcia O'Kelly, Entitlements to Spousal Support After Divorce, 61 N.D.L.Rev. 225, 242 (1985). One is a "minimalist doctrine" and the other a more "equitable concept" of rehabilitative support. Id. at 242-43. The "minimalist doctrine" has as its objective to educate and retrain the recipient for minimal self-sufficiency. Id. at 242. The "equitable doctrine" tries to enable the disadvantaged spouse to obtain "adequate" self-support after considering the standard of living established during the marriage, the duration of the marriage, the parties' earning capacities, the value of the property and other Ruff-Fischer factors. Id. at 244-55.

This court has not adopted the "minimalist doctrine"--one where the only determination is whether the recipient of support is merely "self-supporting." We have upheld rehabilitative spousal support where the recipient is already working full time. See, e.g., Wiege v. Wiege, 518 N.W.2d 708, 710 (N.D.1994); Wahlberg v. Wahlberg, 479 N.W.2d 143, 145 (N.D.1992); Williams v. Williams, 302 N.W.2d 754, 758 (N.D.1981). In Wahlberg, the husband argued that because the wife was already self-supporting she was not "disadvantaged." Wahlberg at 145. This court stated, "[t]he need which evidences that one spouse has been disadvantaged by the divorce and that rehabilitative support is, therefore, appropriate is not limited to the prevention of destitution." Id. We have held 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. Id. We have also stated a valid consideration in awarding spousal support is balancing the burdens created by divorce. Id.

Van Klootwyk, at pp 15-16; see also Fox, 1999 ND...