Schmuck v. Schmuck, 20150210.

CourtUnited States State Supreme Court of North Dakota
Citation882 N.W.2d 918
Docket NumberNo. 20150210.,20150210.
PartiesAlane A. SCHMUCK, Plaintiff and Appellant v. Richard D. SCHMUCK, Defendant and Appellee.
Decision Date26 May 2016

Darcie M. Seboe Einarson, Grafton, ND, for plaintiff and appellant.

Joshua Nyberg, Fargo, ND, for defendant and appellee.

McEVERS, Justice.

[¶ 1] Alane Schmuck, now known as Alane Dosmann, appeals from a district court's divorce judgment denying her an award of spousal support and declining to retain jurisdiction over spousal support. We affirm.


[¶ 2] Richard Schmuck and Alane Dosmann were married in August 1987 and have three children together. At the time of the divorce, both parties were forty-eight years old. Schmuck graduated from high school and joined the military where he received extensive vocational training. During the marriage, the parties agreed that Dosmann's employment was chosen to accommodate Schmuck's employment, and to allow her to dedicate her time outside of work to the children and the family home. Dosmann has a high school degree and has primarily worked part time in various positions as a cashier, as a daycare worker, in a nursing home, and, for the last eleven years, as a paraprofessional in the Grafton school district.

[¶ 3] Dosmann filed for divorce in August 2014. The parties filed a joint stipulation, resolving many of the issues for trial. The parties litigated a number of issues, including the division of property and debts and whether an award of spousal support was appropriate. After a bench trial, the district court adopted the parties' stipulation, with the exception of the stipulated amount of Schmuck's gross income. The district court identified and valued the remaining marital property and debts. In dividing the marital estate and in deciding spousal support under the RuffFischer guidelines, the district court made extensive findings of fact.

[¶ 4] After weighing the factors, the district court awarded fifty-five percent of the marital estate to Dosmann and denied her an award of spousal support. The district court did not retain jurisdiction over spousal support. Dosmann appeals from the district court's divorce judgment denying her requests for spousal support and to retain jurisdiction over spousal support.


[¶ 5] Dosmann argues the district court's determination to not award her spousal support was clearly erroneous.

[¶ 6] “A court may award spousal support under N.D.C.C. § 14–05–24.1

.” Harvey v. Harvey, 2014 ND 208, ¶ 15, 855 N.W.2d 657. A district court must consider the RuffFischer guidelines in determining whether spousal support is appropriate, including:

[T]he 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.

Id.; see Fischer v. Fischer, 139 N.W.2d 845, 852 (N.D.1966)

; Ruff v. Ruff, 78 N.D. 775, 784, 52 N.W.2d 107, 111 (1952). “The court must also consider the needs of the spouse seeking support and the ability of the other spouse to pay.” Woodward v. Woodward, 2013 ND 58, ¶ 4, 830 N.W.2d 82. “The court is not required to make specific findings on each factor if we can determine the reasons for the court's decision.” Norberg v. Norberg, 2014 ND 90, ¶ 31, 845 N.W.2d 348. “Property distribution and spousal support are interrelated and often must be considered together.” Id. Both economic and noneconomic fault are proper factors for the district court to consider. Reineke v. Reineke, 2003 ND 167, ¶ 8, 670 N.W.2d 841. “An award of spousal support is a finding of fact which will not be set aside on appeal unless clearly erroneous.” Pearson v. Pearson, 2009 ND 154, ¶ 5, 771 N.W.2d 288 (quotation marks omitted). “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 a review of the entire record, we are left with a definite and firm conviction a mistake has been made.” Krueger v. Krueger, 2008 ND 90, ¶ 7, 748 N.W.2d 671.


[¶ 7] Dosmann argues the district court erred in establishing Schmuck's present income for the purposes of awarding spousal support. Dosmann has not appealed the district court's identical income finding for the purposes of determining child support. Dosmann argues the district court failed to consider income received in 2014 from a former employer and made a conservative estimate on overtime that Schmuck may work. Dosmann argues that, based on Schmuck's previous work history, Schmuck has the ability to earn more than the district court found as his present income.

[¶ 8] A party's earning ability is not necessarily the same as a party's net income for the purposes of determining child support under the guidelines. Conzemius v. Conzemius, 2014 ND 5, ¶ 45, 841 N.W.2d 716

(relying on Becker v. Becker, 2011 ND 107, ¶ 15, 799 N.W.2d 53 (discussing earning ability for purposes of spousal support versus child support)).

[¶ 9] The evidence presented to the district court shows Schmuck's income fluctuated widely from 2009 to 2013. The parties had stipulated that the court should evaluate Schmuck's income for the purposes of calculating child support as if he had only worked at his current employer earning $52,000 annually. In rejecting the parties' stipulation, the district court used the invited method to determine Schmuck's annual gross income based on his earnings at his current employer, extrapolating from time actually worked for that employer, and refusing to include overtime in the calculation as too speculative.

[¶ 10] The district court also included Schmuck's share of military retirement benefit and his Veterans Administration disability benefit in determining his income. The parties provided the district court with exhibits showing income that contradicted the stipulated amounts, and each parties' proposal of how to divide Schmuck's military retirement and V.A. disability benefits were, at best, incomplete and, at worst, lacked candor with the court. Given the evidence presented and the arguments made to the district court, the district court's finding of fact that Schmuck's annual gross income was $79,535 was not clearly erroneous.


[¶ 11] Dosmann argues the district court erred calculating her income, alleging the evidence in the record does not support her estimated income for the summer months of $6,000. Dosmann argues the W–2 income the district court relied upon to determine her income for the nine-month paraprofessional position included income for working for three weeks for summer school. Dosmann also argues the finding of an estimated $4,097 for her part-time work was substantially more than what she would actually earn.

[¶ 12] The district court found Dosmann's future annual gross income to be $35,643 based on her nine-month position as a paraprofessional at Grafton Public Schools, where she was expected to earn more than $18,214; income from Schmuck's retirement; income from a part-time cleaning job of $4,097; and, estimating she could earn $6,000 during the summer months. Dosmann's W–2 gross income from the school in 2014 was $17,139, including the time she worked during the summer. The district court specifically rejected Dosmann's argument that her earning ability should be based on past income reflected in her W–2 statements.

[¶ 13] The district court found Dosmann was estimated to earn $4,097 at her part-time cleaning job. Dosmann testified that she earned $9.50 per hour and worked three days a week at 1–1.5 hours per shift at her cleaning job. However, she also testified that she worked roughly ten hours per week. Schmuck argued that Dosmann's pay stubs reflected that she worked an average of 17.25 hours every two weeks. The district court's finding is within the range of the evidence (8.625 hours per week x 50 weeks x $9.50 per hour = $4,097). See Lynnes v. Lynnes, 2008 ND 71, ¶ 16, 747 N.W.2d 93

(“When the district court's valuation is within the range of evidence provided by the parties, the district court's valuation will not be set aside, unless this Court has a definite and firm conviction a mistake has been made.”). The district court's finding on Dosmann's earning from her part-time cleaning job is not clearly erroneous.

[¶ 14] The district court made two separate and inconsistent findings on Dosmann's earning ability for the nine-month paraprofessional position: one indicating her income would be $18,214 and another at a slightly higher amount of $18,348. Although the district court did not specifically state how it came to those amounts, it relied on Schmuck's calculations which included Dosmann's increased wage of $13.18 per hour and the 1,382 hours she worked in 2014 ($13.18 x 1,382 = $18,214.76). The district court attempted to estimate Dosmann's summer income based on what she earned during the nine-month school period. It is not error to estimate what Dosmann may earn during the summer. See Mellum v. Mellum, 2000 ND 47, ¶ 13, 607 N.W.2d 580

(holding the district court did not err in using wife's wages as a paraprofessional for the school term and imputing minimum wage for the summer months). The district court found Dosmann could earn $6,000 based on the nine-month position. However, in doing so, it appears the district court included the hours she worked in summer school with her earnings from the nine-month school period. By starting with an inflated number of hours, it appears the district court may have overestimated Dosmann's earning ability for both periods totaling approximately $1,100 per year. However, Dosmann also testified that she usually receives a raise at the beginning of the school year, the last raise being $1.00 per hour. If the district court took...

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