Solem v. Solem

• Decision Date: 21 November 2008
• Docket Number: No. 20080091.,20080091.
• Citation: 757 N.W.2d 748,2008 ND 211
• Parties: Erica SOLEM, Plaintiff, Appellee, and Cross-Appellant v. Scott SOLEM, Defendant, Appellant, and Cross-Appellee.
• Court: North Dakota Supreme Court

757 N.W.2d 748

2008 ND 211

Erica SOLEM, Plaintiff, Appellee, and Cross-Appellant v. Scott SOLEM, Defendant, Appellant, and Cross-Appellee.

No. 20080091.

Supreme Court of North Dakota.

November 21, 2008.

Paul M. Probst, Probst Law Firm, Minot, ND, for plaintiff, appellee, and cross-appellant.

Jessica J. Wolf, Hazen, ND, for defendant, appellant, and cross-appellee.

KAPSNER, Justice.

[¶ 1] Scott Solem appeals from a divorce judgment awarding Erica Solem spousal support. Erica Solem cross-appeals from that judgment ordering both parties to pay their own attorney fees. We conclude the trial court's spousal support determination is not clearly erroneous, and the trial court did not abuse its discretion by ordering the parties to pay their own attorney fees. We affirm.

I.

[¶ 2] The parties met in 1994. Scott Solem had obtained his juris doctorate in 1993 and, in 1994, he accepted a position with a law office in Beulah, North Dakota. Within two years of working at the law office, the two attorneys with whom Scott Solem worked retired, and Scott Solem bought them out. Erica Solem earned a bachelor's degree in 1996. The parties purchased a home together in Beulah in 1996 and married in 1998.

[¶ 3] Prior to 2000, Erica Solem had various jobs in Beulah. The parties had one child in 2000 and another in 2002. After the birth of their first child, Erica Solem did not continue to work full-time outside the home, but she did earn $207 per month by cleaning Scott Solem's law office.

[¶ 4] In March 2006, the parties separated and Erica Solem filed for divorce. Trial was held October 29-30, 2007. Following trial, the trial court awarded Scott Solem property valued at $254,384 and debts valued at $225,299. The trial court awarded Erica Solem property valued at $137,160 and debts totaling $48,703. The trial court indicated the property awarded to Scott Solem allows him to retain his greater earning capacity. The trial court noted at the time of trial, Erica Solem was not employed outside the home, but was watching her friends' children without charge. It also determined Erica Solem has the ability to earn income and has failed to contribute financially to the needs of the family. The trial court awarded Erica Solem $1,000 per month in rehabilitative spousal support, for ten years, or until she remarries or cohabitates. The trial court ordered both parties to pay their own attorney fees. Scott Solem appeals, and Erica Solem cross-appeals.

II.

[¶5] Scott Solem asserts the trial court's award of spousal support to Erica Solem was clearly erroneous as to both amount and duration. A trial court's award of spousal support is a finding of fact which will not be set aside on appeal unless clearly erroneous. Kautzman v. Kautzman, 1998 ND 192, ¶ 19, 585 N.W.2d 561 (citing Young v. Young, 1998 ND 83, ¶ 7, 578 N.W.2d 111; Zuger v. Zuger, 1997 ND 97, ¶ 17, 563 N.W.2d 804). This Court has held: "A finding [of fact] is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support a finding, or if, although there is some evidence to support it, on the entire evidence, we are left with a firm conviction a mistake has been made." Weigel v. Weigel, 2000 ND 16, ¶ 6, 604 N.W.2d 462 (quoting Wilhelm v. Wilhelm, 1998 ND 140, ¶ 11, 582 N.W.2d 6). "[W]e will not reverse the trial court merely because we may have viewed the evidence differently." Wahlberg v. Wahlberg, 479 N.W.2d 143, 144 (N.D.1992) (citing State ex rel. Younger v. Bryant, 465 N.W.2d 155, 158 (N.D.1991)).

A.

[¶6] Section 14-05-24.1, N.D.C.C., provides in part: "Taking into consideration the circumstances of the parties, the [trial] court may require one party to pay spousal support to the other party for any period of time." In determining awards of spousal support, trial courts must apply the Ruff-Fischer guidelines:

[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.

Sack v. Sack, 2006 ND 57, ¶ 11, 711 N.W.2d 157 (quoting Staley v. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182); 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). In the present case, the trial court analyzed the Ruff-Fischer guidelines in its judgment. The trial court determined the ages of the parties was not significant. It determined Scott Solem has a greater earning ability than Erica Solem. It noted the parties marriage lasted about nine years. It indicated both parties will need to maintain homes in the future, and their needs are the same in this respect. The trial court found both parties to be physically healthy. The trial court indicated it awarded Scott Solem more assets which will help him retain his greater earning capacity, but it awarded him less net equity. It also determined Erica Solem has the ability to earn income, but she has failed to contribute financially to her family's needs.

[¶ 7] The trial court did not specifically address the Ruff-Fischer factor, "conduct of the parties," in its analysis of spousal support. Scott Solem asserts the trial court erred by failing to address this factor. He does not suggest the parties' conduct should be the sole factor in determining spousal support; rather, he argues the district court must at least consider conduct of the parties, according to the Ruff-Fischer guidelines.

[¶ 8] This Court has held:

While the conduct of the parties is a factor to be considered in ordering spousal support, it is but one factor and there is no requirement that the award be based on conduct alone. When an award of spousal support is rehabilitative, as it is here, its purpose is not to penalize but, rather, to provide the means by which a disadvantaged spouse may become self-supporting.

Bader v. Bader, 448 N.W.2d 187, 190 (N.D. 1989) (citations omitted). Additionally, this Court has held trial courts are "not required to make specific findings on each factor" of the Ruff-Fischer guidelines. DeMers v. DeMers, 2006 ND 142, ¶ 20, 717 N.W.2d 545 (quoting Ingebretson v. Ingebretson, 2005 ND 41, ¶ 7, 693 N.W.2d 1). Because we have held trial courts are not obligated to make specific findings on every Ruff-Fischer factor, it was not clearly erroneous for the trial court not to make a specific finding on the "conduct of the parties" factor.

B.

[¶9] Scott Solem asserts the trial court did not have a basis for awarding spousal support for ten years. Further, he contends there is no basis for awarding spousal support for a time period longer than the length of the marriage. This Court has held "there must be some factual basis in the record for the length of time support is awarded." Bader, 448 N.W.2d at 190 (citing Smith v. Smith, 326 N.W.2d 697, 700 (N.D.1982)). While this Court requires a factual basis in the record for the length of time spousal support is awarded, it does not require a trial court to articulate why it awards spousal support for a specific length of time. Id. At trial, Erica Solem was questioned about her plans for future employment:

Q What have you done to try to find employment since the separation in March of 2006?

A I have been — I haven't gone out and sought a job because I've been able to stay home with my children.

Q Have you — so you haven't applied for any jobs?

A No.

Q Have you looked into the possibility of any jobs?

A I've looked into the possibility of a day care.

Q And what have you done along that lines, have you checked into licensing?

A No, I've been waiting to see what the outcome of the divorce is.

Q How would that impact whether or not you financially contribute to the family?

A I want to see if I can stay at home with my children until [my child] starts first grade.

Q If you did day care, you would be able to stay home with your children?

A Yes.

Erica Solem added: "I [will] try and start-up a day care business so I can be at home and be available to my boys." In the judgment, the district court held:

Erica shall be awarded spousal support in the amount of $1,000 per month for a period of 10 years or until she remarries or cohabitates. During that period of time, she will receive child support and should have the ability to work and earn additional income. She should be able to work toward building a career or beginning a business.

The trial court did not specifically articulate why it awarded Erica Solem spousal support for ten years, but it was not required to make such an indication. Bader, 448 N.W.2d at 190. The above-noted excerpts from the trial court testimony provide a factual basis for the length of time of the spousal support award, which is what this Court requires. Id. (citing Smith, 326 N.W.2d at 700). The fact the award of rehabilitative spousal support is to last longer than the length of the marriage does not, alone, indicate the award is clearly erroneous.

C.

[¶10] Scott Solem asserts the district court mitigated the parties' disparity in earning capacity through the unequal division of property; therefore, the award of spousal support is unnecessary. Scott Solem contends the district court's award of spousal support will not only support Erica Solem, but may discourage her from seeking to support herself, because she stated she is not looking for employment and instead is waiting to see the outcome of the divorce. Scott Solem argues Erica Solem has voluntarily limited her earning ability by choosing not to charge her friends for the day care she provides. Erica Solem asserts she started babysitting for her friends approximately six months before trial. She argues Scott Solem is ...