Orgaard v. Orgaard, 960274

• Decision Date: 27 February 1997
• Docket Number: No. 960274,960274
• Citation: 559 N.W.2d 546
• Parties: Bernice ORGAARD, Plaintiff and Appellee, v. Howard L. ORGAARD, Defendant and Appellant. Civil
• Court: North Dakota Supreme Court

Page 546

559 N.W.2d 546

1997 ND 34

Bernice ORGAARD, Plaintiff and Appellee, v. Howard L. ORGAARD, Defendant and Appellant.

Civil No. 960274.

Supreme Court of North Dakota.

Feb. 27, 1997.

Jos. A. Vogel, Jr., Mandan, for defendant and appellant.

Rauleigh D. Robinson, Bismarck, for plaintiff and appellee.

NEUMANN, Justice.

¶1 Howard Orgaard appeals from the district court's order awarding Bernice Orgaard $2,000 monthly spousal support for nine years, and $1,000 per month thereafter until Bernice remarries or dies. We affirm.

¶2 Howard and Bernice Orgaard were married on September 30, 1983. Bernice was forty-eight years of age, working as a bartender, with an eighth-grade level education. Howard was forty-three years of age, working as a conductor for Burlington Northern Railroad. Each party had been married previously. No children were born during this marriage, however, Bernice had children from her previous marriage. After their marriage, Howard did not allow Bernice to work.

¶3 In July 1994, Bernice initiated divorce proceedings. A trial was held on April 15, 1996. At trial, Bernice, and two of her daughters, testified that Howard abused alcohol, physically abused Bernice, and verbally abused Bernice and her children, including threatening to kill Bernice during the last few years of their marriage. Additionally, Bernice submitted the deposition of her chiropractor, David German, supporting her contention that Howard kicked her in the back early in their marriage, disabling her and resulting in chronic lower back pain.

¶4 On August 15, 1996, the district court issued its opinion and order finding Bernice, at the age of 61, suffers from cataracts, high cholesterol, and rheumatoid arthritis, with no realistic educational or vocational opportunities. The court further found that Howard physically and verbally abused Bernice during the marriage. On August 29, 1996, the district court issued its judgment awarding Bernice spousal support of $2,000 per month for nine years, and $1,000 per month thereafter until Bernice remarries or dies. Howard appeals the spousal support award.

¶5 A trial court's determination on spousal support is a finding of fact that will not be set aside unless clearly erroneous. Fleck v. Fleck, 427 N.W.2d 355, 357 (N.D.1988). "Under this standard, we reverse only if there is no evidence to support a finding or if, upon a review of the entire evidence, we are left with a definite and firm conviction the trial court has made a mistake." Fenske v. Fenske, 542 N.W.2d 98, 102 (N.D.1996).

¶6 Howard argues the district court's spousal support award is clearly erroneous because it requires him to pay to Bernice over half of his monthly income. Howard contends his 1995 net annual income was $42,015, or $3,501.25 per month. He arrives at his net income by taking his gross income of $61,856, and deducting $10,782 in federal income tax, $1,510 in state income tax, $640 in union dues, $6,013 in retirement benefits, and $896 in Medicare. Under those calculations, Howard argues that after he pays Bernice $2,000 per month in spousal support, he will only be left with $1,501.25 per month, almost five hundred dollars less than what Bernice receives. We disagree with Howard's calculations.

¶7 Howard's assertion that he receives almost five hundred dollars less per month than Bernice is based on two errors. First, Howard misrepresents his net income because he deducts $10,782 in federal income tax and $1,510 in state income tax from his gross income. Although these were the amounts that were withheld from his salary, he received a refund of $3,273 in federal income tax and $458 in state income tax. Accordingly, Howard's net income after taxes is actually $45,746 per year or $3,812.17 per month, over three hundred dollars more per month than the amount he contended.

¶8 Second, Howard fails to consider the tax consequences in spousal support. According to the Internal Revenue Code, the party receiving spousal support must claim the support as taxable income, and the party who pays spousal support is allowed to deduct the amount paid before determining their taxable income. I.R.C. § 71, § 215. Here, Howard attempts to illustrate a disparity between the parties' income by comparing his monthly net income...