Sack v. Sack, 20050167.

• Citation: 711 N.W.2d 157,2006 ND 57
• Decision Date: 29 March 2006
• Docket Number: No. 20050167.,20050167.
• Parties: Theresa L. SACK, Plaintiff, Appellee and Cross-Appellant v. Trent D. SACK, Defendant, Appellant and Cross-Appellee.
• Court: United States State Supreme Court of North Dakota

711 N.W.2d 157

2006 ND 57

Theresa L. SACK, Plaintiff, Appellee and Cross-Appellant v. Trent D. SACK, Defendant, Appellant and Cross-Appellee.

No. 20050167.

Supreme Court of North Dakota.

March 29, 2006.

Joseph J. Cichy (argued), Joseph J. Cichy, P.C., and Orell Schmitz (on brief), Bismarck, N.D., for defendant, appellant and cross-appellee.

Daniel H. Oster, Neubauer & Oster, Bismarck, N.D., for plaintiff, appellee and cross-appellant.

CROTHERS, Justice.

[¶ 1] Trent Sack appeals from that portion of a district court judgment and divorce decree awarding Theresa Sack rehabilitative spousal support for six years. He argues Theresa is not a "disadvantaged spouse" and is not entitled to support. Theresa cross-appeals from that portion awarding Trent certain personal property in the court's property division. We affirm the district court's judgment.

I

[¶ 2] Theresa Sack brought this divorce action in 2003. Trent and Theresa were married in 1998 and had lived together since 1993. Three children were born of the marriage.

[¶ 3] When the couple met in 1993, Trent was attending technical college receiving training in heavy equipment operation and Theresa was attending business college studying secretarial work. Trent completed his studies. Theresa claims Trent told her "anybody can get a job, that certificate wouldn't do it," prompting her to quit school in 1994. Trent denies discouraging Theresa from continuing her education. Theresa did not attempt to resume her education either before or during the marriage.

[¶ 4] Trent earns approximately $60,000 annually working at a mine. Theresa held numerous seasonal or temporary positions during the marriage. Her ability to work full time was limited by Trent's volatile shift schedule. Theresa largely stayed home with the children and worked in positions that were part time or short term and paid an hourly rate high enough to cover daycare expenses. Theresa earned no more than $18,500 annually during the course of the marriage and was unemployed at the time of trial.

[¶ 5] Trent and Theresa stipulated Theresa would retain primary custody of the children and court-ordered visitation was not necessary. The district court ordered Trent to pay child support and divided the marital property. The district court ordered spousal support for Theresa, finding she was a "disadvantaged spouse" because of her lower income earning capacity and her time spent largely as a stay-at-home mother.

II

[¶ 6] A district court's spousal support determinations are findings of fact that are disturbed on appeal only if they are clearly erroneous. N.D.R.Civ.P. 52(a); Sommer v. Sommer, 2001 ND 191, ¶ 8, 636 N.W.2d 423. Trent argues the district court's spousal support determination was clearly erroneous because the court failed to adequately make the required finding that Theresa was a "disadvantaged spouse," citing Riehl v. Riehl, 1999 ND 107, ¶ 9, 595 N.W.2d 10. Theresa argues the district court did make a finding of her "disadvantage" and also posits there are no "rigid rules for determining whether or not to award [spousal support]," other than the Ruff-Fischer guidelines. In support, Theresa cites our decisions in Beals v. Beals, 517 N.W.2d 413, 416 (N.D.1994) and Ingebretson v. Ingebretson, 2005 ND 41, ¶ 7, 693 N.W.2d 1. Because of the issues framed by the parties, together with our duty to correctly apply the law, it is necessary to examine whether the separate "disadvantaged spouse" finding remains a viable requirement before we reach the question whether the district court's determination was clearly erroneous.

[¶ 7] "Disadvantaged spouse" was first used in North Dakota as a descriptive term.¹ We explained in Bullock v. Bullock, 376 N.W.2d 30, 31 (N.D.1985) that "Rehabilitative spousal support is designed to provide education, training, or experience that will enable the disadvantaged spouse to achieve `suitable' and `appropriate' self-support." The phrase was originally a label for the party in a divorce who would be receiving support, id., and was used by this Court in a descriptive sense for nearly a decade. See Rustand v. Rustand, 379 N.W.2d 806, 807 (N.D.1986); Hanson v. Hanson, 404 N.W.2d 460, 466 (N.D.1987); Roen v. Roen, 438 N.W.2d 170, 172 (N.D.1989); Wahlberg v. Wahlberg, 479 N.W.2d 143, 144-45 (N.D.1992); Beals, 517 N.W.2d at 416.

[¶ 8] This complementary relationship between "rehabilitative spousal support" and "disadvantaged spouse" ended with Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D. 1994), when "disadvantaged spouse" was changed from a description to a requirement. Wiege first stood for the proposition that a "spouse must be disadvantaged as a result of the divorce for rehabilitation or maintenance to be appropriate." Id. (emphasis added).

[¶ 9] Since Wiege, the "disadvantaged spouse" requirement has continued to evolve and now mandates that "the district court must find the requesting spouse to be `disadvantaged,'" by assessing whether the spouse has "`forgone opportunities or lost advantages as a consequence of the marriage and ... has contributed during the marriage to the supporting spouse's increased earning capacity.'" Weigel v. Weigel, 2000 ND 16, ¶ 11, 604 N.W.2d 462 (citations omitted).

[¶ 10] Here, the district court found Theresa was a "disadvantaged spouse" entitled to spousal support by virtue of her years spent as a homemaker and her lack of full-time employment throughout the marriage. Trent argues Theresa was not a disadvantaged spouse entitled to support because she did not directly contribute to his increased earning capacity. We disagree with the suggestion that Theresa's contributions as a homemaker and caretaker for the children did not directly help Trent advance to his current position and salary. Theresa is therefore "disadvantaged" under the current law. However, we find ourselves unable to explain why such a separate finding must be made.

[¶ 11] Any spousal support award is supposed to be based upon consideration of the Ruff-Fischer guidelines. Ingebretson, 2005 ND 41, ¶ 7, 693 N.W.2d 1. Ruff-Fischer evaluates the propriety and necessity of spousal support, weighing:

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.

Staley v. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182 (citing Sommer, 2001 ND 191, ¶ 9, 636 N.W.2d 423). Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). Because such a thorough weighing of factors by the district court is already required through Ruff-Fischer, we cannot reasonably justify requiring a separate proof of "disadvantage." Such a requirement appears to be no more than a repetitive and onerous exercise for the parties and the courts, which are already faced with considerable procedural and substantive burdens. Nor is a separate test consistent with our case law which has clearly, though sporadically, emphasized the lack of "rigid rules for determining whether or not to award [spousal support] and the amount of such an award." Beals, 517 N.W.2d at 416.

[¶ 12] "When precedent and precedent alone is all the argument that can be made to support a court-fashioned rule, it is time for the rule's creator to destroy it." Francis v. Southern Pac. Co., 333 U.S. 445, 471, 68 S.Ct. 611, 92 L.Ed. 798 (1948) (Black, J., dissenting). We are unable to justify what has grown into the "disadvantaged spouse" doctrine and its overshadowing, if not obliteration of the underlying concept of rehabilitative spousal support. Therefore, we elect to dispose of the "disadvantaged spouse" doctrine and reemphasize the importance of a comprehensive analysis under the Ruff-Fischer guidelines when determining the appropriateness of rehabilitative spousal support. In doing so, we do not retreat from the reasons and rationale for rehabilitative support. Rather, we are directing focus back onto the Ruff-Fischer guidelines and away from a sub-test or further potential development of a separate or free-standing "disadvantaged spouse doctrine."

[¶ 13] Employing the Ruff-Fischer guidelines, Theresa was entitled to rehabilitative spousal support. Theresa has a substantially lower income-earning capacity than Trent, capable of making only minimum wage, compared to Trent's current income of $60,000. The marriage was relatively short-term, but the parties had lived together for a total of ten years. Trent is in good health, but Theresa has a number of health problems requiring regular treatment. Theresa has very little property and significant debt, while Trent has a house and other assets. Under Ruff-Fischer, therefore, the district court did not err by concluding Theresa was entitled to rehabilitative support.

[¶ 14] We find the district court did not abuse its discretion in awarding Theresa support due to her status as a "disadvantaged spouse" because that same analysis supports the award under the Ruff-Fischer guidelines. However, we overrule Weigel and its progeny inasmuch as they require a separate or independent "disadvantaged spouse" finding as a prerequisite to awarding rehabilitative support.

III

[¶ 15] Theresa argues some specific items of personal property should have been awarded to her in the property distribution. A district court's determinations on valuation and division of property are findings of fact which are reversed on appeal only if they are clearly erroneous. Kautzman v. Kautzman, 1998 ND 192, ¶ 8, 585 N.W.2d 561.

[¶ 16] Theresa stated in court that Trent could have the particular items at the values he had given them. Therefore, the district court's decision to award...