Routledge v. Routledge
Decision Date | 21 November 1985 |
Docket Number | No. 10880,10880 |
Citation | 377 N.W.2d 542 |
Parties | James K. ROUTLEDGE, Plaintiff, Appellant and Cross-Appellee, v. Donna M. ROUTLEDGE, Defendant, Appellee and Cross-Appellant. Civ. |
Court | North Dakota Supreme Court |
Ella Van Berkom, Minot, for plaintiff, appellant and cross-appellee.
Farhart, Rasmuson, Lian & Maxson, Minot, for defendant, appellee and cross-appellant; argued by Judith Howard.
James K. Routledge appeals from a district court judgment which granted a divorce to Donna M. Routledge. Donna has filed a cross-appeal from the judgment. We affirm and remand for consideration of Donna's request for attorney's fees on appeal.
James and Donna were married on March 24, 1975. It was the third marriage for James and the second for Donna. At the time of the marriage, James was 60 years old and Donna was 45 years old.
Donna has fought a lengthy battle with cancer, including numerous surgeries and other treatments. James was well aware of Donna's health problems prior to the marriage. James is now 70 years old and suffers from hypertension and respiratory ailments.
Prior to the marriage, Donna lived with several of her grown sons in a house in Mohall. James lived on the farm which he owned. After the marriage, the house in Mohall was torn down and replaced with a double-wide mobile home. James and Donna lived on the farm from spring through fall, and moved into the mobile home in Mohall for the winter months. Donna's sons lived in the mobile home year round, including the months when James and Donna lived there. It is undisputed that James was informed before the marriage that Donna considered the home in Mohall to be her family's home and that her sons could continue to live there as long as they wanted.
The couple separated in November, 1982, and James initiated this action seeking a divorce on the grounds of extreme cruelty. Donna counterclaimed for a divorce on the grounds of irreconcilable differences. The trial court granted the divorce to Donna. In dividing the marital property, the trial court essentially awarded each party the property which each had brought into the marriage. James was ordered to pay Donna's health insurance premiums plus spousal support of $500 per month for Donna's lifetime.
The following issues are presented for review on appeal:
I. Did the trial court err in failing to grant the divorce to James on the grounds of extreme cruelty?
II. Did the trial court err in its award of spousal support?
III. Did the trial court err in extending the period of time for filing the cross-appeal?
IV. Was the trial court's property division clearly erroneous?
V. Is Donna entitled to attorney's fees on appeal?
James contends that the trial court erred in failing to grant the divorce to him on the grounds of extreme cruelty. The conduct which James complains about is Donna's acquiesence in allowing her grown sons to live with them during the winter months, even though he admittedly had been advised prior to the marriage that her sons would continue to live in the home in Mohall. He also contends that he was subjected to ridicule in the community because Donna's sons lived with them.
"Extreme cruelty" is defined in Section 14-05-05 of the North Dakota Century Code:
The determination of fault grounds in a divorce is a finding of fact. Rambel v. Rambel, 248 N.W.2d 856, 859 (N.D.1977); see also Voltin v. Voltin, 179 N.W.2d 127, 131-132 (N.D.1970) ( ). On appeal, we apply the "clearly erroneous" standard in reviewing findings of fact. Rule 52(a), N.D.R.Civ.P. We have thoroughly reviewed the record in this case, and we do not find that the trial court's findings of fact on this issue are clearly erroneous. The trial court did not commit reversible error in failing to grant James a divorce on the grounds of extreme cruelty.
James contends that the trial court erred in ordering him to pay Donna's health insurance premiums, currently $163.45 per month, plus $500 per month spousal support for life. James contends that the trial court should not have awarded permanent spousal support and that he cannot afford to pay $663.45 per month.
Section 14-05-24, N.D.C.C., authorizes the trial court to "compel either of the parties ... to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively." The trial court's determinations on matters of spousal support are treated as findings of fact which will not be set aside on appeal unless clearly erroneous. Weir v. Weir, 374 N.W.2d 858, 862 (N.D.1985); Oviatt v. Oviatt, 355 N.W.2d 825, 827 (N.D.1984). A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Weir v. Weir, supra, 374 N.W.2d at 862; Hedin v. Hedin, 370 N.W.2d 544, 547 (N.D.1985).
The trial court, in determining whether an award of spousal support is appropriate, is to consider the guidelines set forth in 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). Factors to be considered include "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." Weir v. Weir, supra, 374 N.W.2d at 862.
We have expressly rejected the view that spousal support is a continuation of the duty of one spouse to support the other during marriage, and have accepted the theory of rehabilitative spousal support. Rehabilitative spousal support, in theory, allows the disadvantaged party time and resources to acquire an education or work skills. Where a party is incapable of rehabilitation, permanent spousal support may be awarded to provide traditional maintenance. Delorey v. Delorey, 357 N.W.2d 488, 490 (N.D.1984); Bullock v. Bullock, 354 N.W.2d 904, 911 (N.D.1984).
Two of the Ruff-Fischer factors support the award of permanent spousal support to Donna. 1 First, Donna suffers from severe medical problems. There was ample testimony outlining her continuing bout with cancer and her resultant inability to work. Second, James was awarded most of the marital property, including all of the income-producing property. Based upon these factors, the trial court could have reasonably concluded that Donna is incapable of rehabilitation beyond her present earning capacity, thereby justifying an award of permanent spousal support. See Briese v. Briese, 325 N.W.2d 245, 249 (N.D.1982); Gooselaw v. Gooselaw, 320 N.W.2d 490, 493 (N.D.1982).
James also asserts that the trial court failed to balance Donna's needs with his ability to pay in setting the amount of spousal support. Specifically, he claims that the farmland, which provides his only source of income beyond a modest monthly Social Security benefit, does not provide sufficient cash flow to make the $663.45 monthly payments to Donna.
In awarding spousal support the trial court must take into consideration the supporting spouse's needs and ability to pay. Weir v. Weir, supra, 374 N.W.2d at 865. James is correct in asserting that the trial court's function is to balance the competing interests and make a determination which is equitable between the parties.
However, this is not a case such as Weir v. Weir, supra, where we were convinced that the supporting spouse, in light of his income and other obligations, clearly could not make payments in the amount ordered by the trial court. James has been awarded the 800 acre farm and machinery, together valued at $451,835 with over $300,000 of equity, yet he claims that this property does not provide sufficient cash flow to make payments to Donna which total $7,961.40 annually. James currently is renting out the farmland on a crop-sharing basis. If that rent is inadequate to allow James to make payments to Donna and support himself, he has the option of selling the land and equipment, paying off the debts, and investing the remainder. The net value of the property would be approximately $300,000, which if invested would certainly yield enough to make the payments to Donna as well as provide adequate support for James. Under these circumstances, we conclude that the monthly payments will not be unduly burdensome to James. See Lippert v. Lippert, 353 N.W.2d 333, 336 (N.D.1984).
James further asserts that in light of present economic conditions he could not sell the farm or machinery for the amount as found by the trial court. The trial court adopted the values placed upon the land and the machinery by James's expert appraisers and by James in a pre-trial property statement. James therefore cannot now object to the values ascribed to the property by the trial court. 2
James also owns mineral rights which may provide additional income. James testified at trial that he owns one quarter of the mineral rights on the 800 acres of land he received through the division of property. At the time of trial, James's mineral interests were being leased at $30 an acre, but the lease was set to expire in November of 1984. James testified that the mineral rights had appreciated, and that they could be leased again upon expiration of the current lease. This testimony establishes that James owns valuable mineral...
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