Rothberg v. Rothberg

• Decision Date: 28 February 2007
• Docket Number: No. 20060191.,20060191.
• Citation: 727 N.W.2d 771,2007 ND 24
• Parties: Patricia J. ROTHBERG, Plaintiff, Appellee and Cross-Appellant, v. Charles S. ROTHBERG, Defendant, Appellant and Cross-Appellee.
• Court: North Dakota Supreme Court

727 N.W.2d 771

2007 ND 24

Patricia J. ROTHBERG, Plaintiff, Appellee and Cross-Appellant, v. Charles S. ROTHBERG, Defendant, Appellant and Cross-Appellee.

No. 20060191.

Supreme Court of North Dakota.

February 28, 2007.

LaRoy Baird (argued) and Bonnie L. Storbakken (on brief), LaRoy Baird, P.C., Bismarck, N.D., for plaintiff, appellee and cross-appellant.

Scott K. Porsborg (argued) and Mitchell D. Armstrong (on brief), Smith Bakke Porsborg & Schweigert, Bismarck, N.D., for defendant, appellant and cross-appellee.

MARING, Justice.

[¶ 1] Charles S. Rothberg appealed from an order denying his motion to modify his stipulated spousal support obligation under a divorce judgment, and Patricia J. Rothberg cross-appealed from that part of the order denying her request for an award of attorney fees and costs incurred in resisting the motion. We conclude the district court's finding that Charles Rothberg did not establish a material change in circumstances to warrant modification of his stipulated spousal support obligation is not clearly erroneous, and the court did not abuse its discretion in denying Patricia Rothberg's request for attorney fees and costs. We affirm.

I

[¶ 2] The Rothbergs married in 1979 and subsequently adopted three children, one of whom is now emancipated. They divorced in August 2001 while Charles Rothberg was employed as a neurosurgeon at St. Alexius Medical Center in Bismarck under a contract running through June 2003 and paying him $400,000 per year plus compensation for excess call coverage. The parties' total income in 2001 was $483,822. The parties entered into a settlement agreement which addressed custody, visitation, child support, property division, and spousal support, and which was incorporated into the divorce judgment. Charles Rothberg agreed to pay Patricia Rothberg spousal support under the agreement:

SPOUSAL SUPPORT. After due consideration of the disadvantage that has been incurred as a result of this divorce, Defendant shall pay to the Plaintiff permanent spousal support in the amount of Thirty Six Hundred Dollars ($3,600.00) per month, commencing the 15th day of August, 2001, and continuing on the 15th day of each and every month thereafter, until (i) the Plaintiff dies, remarries or otherwise holds herself out as living in a matrimonial relationship or (ii) August 15, 2004 at which time, without any necessity of Plaintiff showing a substantial change in circumstances or need and as a present accommodation to the Defendant, the permanent spousal support obligation of the Defendant shall increase to Five Thousand Dollars ($5,000) per month and continue thereafter on the 15th day of each and every month until the Plaintiff dies, remarries or otherwise holds herself out as living in a matrimonial relationship. Plaintiff acknowledges that a significant change of employment by way of disability or retirement may cause a significant change in the financial circumstances of the Defendant which may, but does not require, an adjustment of his spousal support obligation. Notwithstanding that acknowledgment by the Plaintiff, the parties do agree that the permanent spousal support required herein shall continue for no more than ten (10) years from and after the date of the divorce Judgment, unless Plaintiff would otherwise die, remarry or hold herself out as living in a marital relationship, or Defendant is still working.

[¶ 3] In 2002, St. Alexius offered Charles Rothberg a contract for further employment at a salary of $267,000 per year, which he declined, and his earlier contract with St. Alexius was not renewed when it expired in June 2003. Since then he has been working as a locum tenens, traveling around the country on temporary neurosurgery assignments and earning less than he had received under his employment contract with St. Alexius. In March 2005, he moved for a reduction in spousal support, claiming the nonrenewal of his St. Alexius contract and resulting reduction in income was a material change in circumstances justifying modification. According to Charles Rothberg, he earned only $200,819 from his locum tenens work in 2004, but he also received a $50,000 payment in 2005 for work performed in 2004. Following a hearing on the motion, the district court found Charles Rothberg had failed to prove a material change in circumstances that substantially affected his ability to pay and that was not contemplated by the parties at the time of the initial divorce judgment. The court also denied Patricia Rothberg's request for an award of attorney fees for responding to the motion.

[¶ 4] In Rothberg v. Rothberg, 2006 ND 65, ¶ 1, 711 N.W.2d 219, we reversed and remanded because "the district court's findings of fact lacked sufficient specificity to allow this Court to discern the factual basis for the court's determinations, and the district court failed to consider the appropriate legal standards when it denied Patricia Rothberg's request for attorney fees." Neither party requested a hearing on remand, and the district court supplemented its findings and denied both parties' requests. The court ruled Charles Rothberg had not established a material change of circumstances warranting a modification of spousal support because "both Charles and Patricia contemplated at the time they signed their Property Settlement and Child Custody Agreement in August of 2001 that Charles would remain well employed as a neurosurgeon and that Patricia would remain a stay-at-home Mom, which is exactly what has happened." The court further found:

2. Charles is employed as a neurosurgeon on a locum tenens basis working for health care providers in other cities and states with his home in Bismarck.

3. Charles earns and is capable of earning a gross income in excess of $250,000 per year.

4. Both Charles and Patricia report ample monthly expenses that are within the range of the gross monthly income or revenues available to them.

5. While Charles' gross annual income has dropped from 2001, 2002 and 2003 by more then [sic] $150,000, he still has ample income to meet his child support and spousal support obligations while at the same time meeting his own ample monthly expenses.

6. Patricia has sufficient gross monthly revenue to meet her ample monthly expenses and pay her own attorney fees.

II

[¶ 5] Charles Rothberg argues the district court erred in finding there had been no material change in circumstances justifying a reduction in his spousal support obligation.

[¶ 6] In Rothberg, 2006 ND 65, ¶¶ 10-11, 711 N.W.2d 219 (internal citations omitted), we set forth the legal standards governing a motion to modify spousal support:

When the original divorce judgment includes an award of spousal support, the district court retains jurisdiction to modify the award. The party seeking modification of spousal support bears the burden of proving there has been a material change in the financial circumstances of the parties warranting a change in the amount of support. The district court's determination whether there has been a material change in circumstances warranting modification of spousal support is a finding of fact and will be set aside on appeal only if it is clearly erroneous.

A material change is a change that substantially affects the financial abilities or needs of the parties and that was not contemplated by the parties at the time of the original decree. In assessing whether a material change has occurred, the reasons for changes in the parties' income or needs must be examined, as well as the extent to which the changes were contemplated by the parties at the time of the initial decree. Not every change in the parties' financial circumstances justifies modification of spousal support, and no modification is warranted when the change is self-induced. This Court encourages agreements between divorcing parties, and stipulated spousal support awards should be changed only with great reluctance.

[¶ 7] Charles Rothberg contends the court's finding that he "earns and is capable of earning a gross income in excess of $250,000 per year" is clearly erroneous. 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, after review of the entire record, we are left with a definite and firm conviction a mistake has been made. Hagel v. Hagel, 2006 ND 181, ¶ 11, 721 N.W.2d 1.

[¶ 8] The district court found that Charles Rothberg's gross income for tax years 2000, 2001, 2002, and 2003 was $328,273, $483,822, $457,991, and $410,982, respectively. The court arrived at these figures based on Charles Rothberg's tax returns, including the tax returns for his professional corporation which he incorporated in August 2003 and elected to be treated as a Subchapter S corporation. With regard to Charles Rothberg's 2004 and 2005 gross income, the court reasoned:

For 2004 his only income employment is through his PC. His 2004 PC tax return [Exhibit D-12] shows a gross income of $296,958, which includes a 1099 for $50,581 earned in 2004 but not [sic] on which the 1099 was not issued or received until 2005. His personal tax return [Exhibit D-11] shows gross income of $200,819. To keep consistent the understanding of Charles' gross income for the years 2000, 2001, 2002, 2003 and 2004, only his PC tax return reported gross income will be used. While no tax information is available for 2005, Charles testified he earns for his locum tenens work $1,400 per day working 14 days per month plus overtime of up to ten hours at $175 per hour, for an average gross income of $21,350 per month or $256,200 per year. There is no evidence that Charles cannot continue to make this level of gross income.

[¶ 9] Although Charles Rothberg complains about the district court's use of his Sub-chapter S professional corporation tax return in finding that he could earn "in excess of $250,000 per year," Charles Rothberg's testimony alone supports the court's finding....