Rutar v. Rutar, 21993

• Decision Date: 05 March 1992
• Docket Number: No. 21993,21993
• Citation: 108 Nev. 203,827 P.2d 829
• Parties: Cvetka RUTAR, Appellant, v. Marjan RUTAR, Respondent.
• Court: Nevada Supreme Court

Page 829

827 P.2d 829

108 Nev. 203

Cvetka RUTAR, Appellant, v. Marjan RUTAR, Respondent.

No. 21993.

Supreme Court of Nevada.

March 5, 1992.

Dickerson, Dickerson, Lieberman & Consul, Las Vegas, for appellant.

Darrell Lincoln Clark, Las Vegas, for respondent.

OPINION

PER CURIAM:

Mrs. Rutar (Cvetka) and Mr. Rutar (Marjan) met in Ravne, Yugoslavia, in 1965. At the time, Cvetka was nineteen years old and Marjan was twenty-seven. Both had completed dental technician school, which is the Yugoslavian equivalent of a four-year technical high school in the United States. Marjan worked for eight years as a dental technician in Yugoslavia and then went to Switzerland to receive specialized training. After Cvetka graduated, she worked in Yugoslavia for two years in the same laboratory that employed Marjan before he left for Switzerland.

In 1969, while Marjan was in Switzerland, Cvetka answered an advertisement for a dental technician in Yonkers, New York, and moved to the United States. In 1970, she arranged a position for Marjan with her employer, and he joined her in Yonkers. They married in 1971. They worked together in several laboratories before moving to Las Vegas, Nevada, where they started their own dental laboratory, Emona Dental Studios (EDS Corporation).

Cvetka worked full-time in the laboratory for approximately five years, from the time it opened until after their second child, Michelle, was born in 1976. She then became a full-time homemaker, caring for her and Marjan's two children and the two children from Marjan's previous marriage. The couple put both of Marjan's children through college and graduate school.

After quitting her full-time work to be a homemaker, Cvetka continued to do some of the routine bookkeeping work for the laboratory. For the most part, however, Cvetka had not worked outside the home for approximately fifteen years prior to the divorce. Furthermore, she testified that even when she was working as a technician, she was never able to work without supervision, because she lacked Marjan's specialized skill. She is currently forty-five years old and is pursuing an undergraduate degree in accounting, with the hope of someday attending law school.

Marjan, on the other hand, has worked long hours in his dental laboratory since its commencement. EDS Corporation currently grosses over $300,000 per year, and in 1988, Marjan's personal income amounted to $154,700. The corporation also pays Marjan's automobile expenses, automobile insurance, and medical insurance. Marjan is fifty-three years old and, in the future, would like to reduce the number of hours he works each day.

Marjan filed for divorce in February of 1988. The district court granted the divorce in January of 1990 and awarded Cvetka $1,000 per month in rehabilitative alimony for a period of three and one-half years. In addition, Cvetka received child support for both children totaling $1,000 per month. The court ordered an equal division of the couple's property, which consisted primarily of a house valued at $550,000 less an $80,000 mortgage, a condominium valued at $225,000 less an $80,000 mortgage, the dental laboratory valued at approximately $140,000, a retirement fund valued at approximately $700,000, and several automobiles. The district court also ruled that Cvetka and the children may continue to live in the house until it is sold. Marjan was ordered to continue paying the upkeep expenses on the house and condominium, amounting to approximately $3,500 per month, with Cvetka reimbursing him for her half of these expenses upon sale of the properties.

Cvetka appeals the award of spousal support, requesting an increase in the $1,000 awarded to $3,500 per month, out of which she would pay her half of the property upkeep expenses as they are incurred. She also requests that spousal support continue for longer than three and one-half years, and that the district court retain jurisdiction to modify the spousal support award following sale of the house and condominium. Finally, she requests that the court award her attorney's fees for this appeal.

The primary issue is the reasonableness of the rehabilitative alimony award. The amount of alimony awarded is within the sound discretion of the district court. See, e.g., Winn v. Winn, 86 Nev. 18, 467 P.2d 601 (1970). However, this discretion is limited by the dictates of NRS 125.150. ¹ In Heim v. Heim, 104 Nev. 605, 608, 763 P.2d 678, 679-80 (1988), this court referred to NRS 125.150, which requires that in awarding alimony the court must award an amount that is "just and equitable," having regard to the "respective merits of the parties and to the condition in which they will be left [after] divorce." ²

This case presents a situation in which both parties contributed substantially to the marriage but are left with vastly disparate earning capacities after the divorce. Similar circumstances were considered in Johnson v. Steel Incorporated, 94 Nev. 483, 489-90, 581 P.2d 860, 864 (1978). In Johnson, this court held that the district court had abused its discretion in limiting the wife's alimony award to $1,200 per month for a period of two years. ³ In that case, the parties had been married for twenty years, and the wife retained custody of their two children. Id. at 484, 581 P.2d at 861. She had never worked outside the home and had developed no marketable skills, while her husband had built up a profitable business by practicing a trade throughout their twenty-year marriage. His personal gross income was $83,000 per year. Id. at 487, 581 P.2d at 863. In the property division, both parties had received assets valued at approximately $350,000. Id. at 486, 581 P.2d at 862.

This court classified the two year alimony award in Johnson as "rehabilitative alimony." Id. As such, the court held that the alimony award was unjust. Applying the guidelines established in Buchanan v. Buchanan, 90 Nev. 209, 215, 523 P.2d 1, 5 (1974), ⁴ the court held that, given Mrs Johnson's educational background and lack of work experience, there was no evidence in the record to suggest that she actually would be able to earn enough to meet her expenses after only two years of training. Johnson, 94 Nev. at 489, 581 P.2d at 864. Furthermore, this court noted the injustice inherent in denying a wife reasonable alimony where she has been a full-time homemaker and caretaker of the children with her husband's agreement and to the parties' mutual benefit. See Johnson at 487-89, 581 P.2d at 862-64.

Similarly, in Heim v. Heim, 104 Nev. 605, 606-08, 763 P.2d 678-81 (1988), this court held that an alimony award in the amount of $500 per month was unjust and inequitable as a matter of law where the parties had been married thirty-five years, the wife had raised the couple's six children, and the husband, who had earned his doctorate degree during the marriage, had a gross income of $6,500 per month. The court noted that even if the wife were able to earn the highest salary she had ever earned--$600 per month--this amount combined with alimony awarded would equal only one-fifth of her husband's income. Id. at 609, 763 P.2d at 681. In reversing the district court's alimony award, this court stated that the "Buchanan guidelines" provide a useful but inexhaustive list, and that the judge's primary focus must be upon the justness and equity of the situation with regard to the condition in which the parties will be left after the divorce. Id. at 608, 763 P.2d at 680.

The instant case approximates Johnson and Heim with respect to...