Smith v. Smith, 10212

• Decision Date: 24 November 1982
• Docket Number: No. 10212,10212
• Citation: 326 N.W.2d 697
• Parties: Thomas S. SMITH, Plaintiff and Appellee, v. Peggy L. SMITH, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 697

326 N.W.2d 697

Thomas S. SMITH, Plaintiff and Appellee, v. Peggy L. SMITH, Defendant and Appellant.

Civ. No. 10212.

Supreme Court of North Dakota.

Nov. 24, 1982.

Patrick F. Leier, of Harms, Leier & Evenson, Williston, for plaintiff and appellee.

Alice K. Olson, of Lamb, Schaefer, McNair, Larson & Olson, Fargo, for defendant and appellant.

VANDE WALLE, Justice.

This is an appeal from a judgment granting Tom Smith a divorce from Peggy Smith. The appeal involves issues of child support, visitation, spousal support, property division, and debt division. We modify the trial court's judgment regarding child support and spousal support and affirm as modified.

Tom and Peggy Smith were married in 1970 in Leeds, North Dakota, when Tom was a senior in high school and Peggy was a freshman at Valley City State College. Tom and Peggy lived in Leeds until Tom finished high school. Later they moved to Wahpeton for further education and to Grand Forks and Williston for employment. While at Wahpeton Tom completed a computer-technician course and Peggy completed six months of a general-secretarial course.

During the years Tom and Peggy lived in the Grand Forks area, Tom first worked in a bank as a computer operator, and later he was employed by a sporting-goods company. Peggy worked four years in a clerical position and later she took care of children in her home.

In 1980 Tom was laid off in Grand Forks and he moved his family to Williston when he secured employment as an equipment operator. In 1981 Tom and Peggy separated. Peggy and the four minor children born of the marriage returned to Leeds. The children have various physical problems as one is epileptic, one has a severe speech impediment, one has physically impaired feet, and all have ear and throat problems.

During Tom and Peggy's marriage Peggy's father, Dale Streyle, made several financial gifts and loans to the couple. The loans have not been repaid. When Tom and Peggy were married in 1970, Peggy's father paid for their apartment in Leeds. He lent them money when they were going to school in Wahpeton. When Tom and Peggy moved to Grand Forks, Mr. Streyle lent them $2,500 for a downpayment on a mobile home. When they purchased a home two years later and were unable to sell the mobile home, Peggy's father took over the payments on the mobile home and the lot rent. Mr. Streyle also supplied $9,000 for a downpayment on a townhouse in Williston. Later, Tom and Peggy decided to move the home they had been unable to sell from the Grand Forks area to Williston, and Peggy's father arranged a $13,000 loan at the bank in Leeds. When Peggy and the children moved back to Leeds after the separation, Peggy's father gave her $1,000 a month for living expenses.

After the separation Tom moved in with friends in Williston. He continued in employment as an equipment operator with gross earnings of over $25,000 per year. During the summer Peggy taught dance classes in Leeds and earned $275 per month. Peggy planned to buy a car and go to college in Devils Lake in the fall to study for a four-year degree in speech pathology. Her income is virtually nonexistent other than support from Tom, gifts from her father, and loans she is able to obtain.

The trial judge determined Peggy would receive custody of the four children, and he arranged a visitation schedule for weekends, summer vacations, and holidays. He granted a divorce based on irreconcilable differences and divided the personal property and indebtedness. The judge gave Tom the four tax exemptions for the children and ordered Tom to maintain medical insurance for the children and pay one-half of their medical expenses not covered by insurance. In addition, the judge ordered Tom to pay $100 per month per child for support of the children and $100 per month for 30 months as spousal support for Peggy.

The issue before this court is whether or not the trial judge erred in his determinations when he tried to equitably resolve the issues of this divorce action. The trial court made 16 findings of fact, but only six issues are contested on appeal. They involve spousal support, child support, tax exemptions, debt division, health-insurance coverage, and visitation restrictions.

Section 14-05-24, N.D.C.C., and the Ruff-Fischer guidelines are used by North Dakota courts to compel a party to provide for maintenance of the children and allowances to the other spouse. See Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (N.D.1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). Factors that are considered when determining the amount of support to be provided include the ages of the parties, their earning abilities, duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their financial circumstances, and the value and income-producing capacity of their property. Urlaub v. Urlaub, 325 N.W.2d 234 (N.D.1982). The trial court's findings of fact regarding support will not be set aside on appeal unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P. A finding of fact is clearly erroneous when we are left with a definite and firm conviction that a mistake has been made. Briese v. Briese, 325 N.W.2d 245 (N.D.1982).

In this case the judge awarded Peggy $100 per month for 30 months as spousal support. Today, when possible, spousal support is used as a method of rehabilitating the spouse disadvantaged by the divorce. Gooselaw v. Gooselaw, 320 N.W.2d 490 (N.D.1982); Bingert v. Bingert, 247 N.W.2d 464 (N.D.1976). This case involves an example of the use of rehabilitative alimony. Peggy Smith is young and capable and she desires to go to college to learn a profession to help herself become better able to support herself and the four children in her custody. Peggy has chosen an area of training, speech pathology, that she can also use to help her child who has a speech impediment.

Peggy quit college after three months to marry Tom and become a wife and mother. During their marriage Peggy worked as a secretary and a baby-sitter to help support the family. Peggy's desire to go back to school to acquire the necessary education for financial independence is commendable. Tom, as well as Peggy and the children, will be benefited as a result of Peggy's rehabilitation because in four years she will be better able to share in the burden of supporting four minor children.

The trial court awarded Peggy spousal support of $100 per month for 30 months. We are concerned with the amount of support and the time period limiting Peggy's spousal support to 30 months. Peggy worked while Tom was going to college at Wahpeton, and Peggy's father provided them with financial support. Now Peggy needs assistance from Tom during her return to college. With Tom's gross monthly earnings of approximately $2,200 per month, he is unable to pay for all of Peggy's educational expenses in addition to paying child support and his living expenses. However, we do believe Tom is able to pay $200 per month to Peggy for spousal support. After paying spousal support and child support, Tom will be left with $1,400 per month to meet his living expenses and to pay taxes, social security, etc. We are left with a firm conviction that the trial court made a mistake in awarding Peggy spousal support of $100 per month, and we modify the award to $200 per month.

It is obvious that Peggy cannot pay all her educational expenses with $2,400 per year. Even with a $100 per month increase in spousal support, Peggy will still have to obtain money from other sources. However, the $200 per month Tom provides to Peggy will be used to assist her in attaining her educational goal. See Porter v. Porter, 274 N.W.2d 235 (N.D.1979).

The trial judge limited Peggy's spousal support to 30 months. The judge does not explain in his findings or conclusions why he chose the...