Sommer v. Sommer, 20010044.

Decision Date05 December 2001
Docket NumberNo. 20010044.,20010044.
Citation2001 ND 191,636 N.W.2d 423
PartiesKathleen M. SOMMER, Plaintiff and Appellee v. Donald H. SOMMER, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Mary Kathryn Kelsch, Bair, Bair, Garrity & Kelsch, LLP, Mandan, for defendant and appellant.

Shari J. McPhail, McPhail Law Firm, Bismarck, for plaintiff and appellee.

MARING, Justice.

[¶ 1] Donald Sommer appeals from a judgment dated December 26, 2000, which granted the parties a divorce, divided their marital property, and ordered Donald to pay spousal support. Donald challenges the award of spousal support. We hold the trial court's decision to award spousal support was not clearly erroneous and affirm the judgment. We remand the case to the trial court to determine whether Kathleen should be awarded attorney fees for this appeal.

I

[¶ 2] Donald and Kathleen Sommer were married on September 11, 1971. Their marriage produced three children. Marty, who was 26 at the time of trial, was born in 1974. Jeremy, who was 23 at the time of the trial, was born in 1977. Dallas, who was 20 at the time of the trial, was born in 1980. After their marriage, Donald and Kathleen lived in Northwood, North Dakota, until 1978. They then moved to Washburn, North Dakota, when Donald began working at Great River Energy in Underwood, North Dakota.

[¶ 3] At the time of the trial, Donald was 52 years old. He is a high school graduate and received a two-year degree in mechanics from Wahpeton State School of Science in 1970. At the time of trial, he had been employed with Great River Energy for 22 years and was working full-time at $25.18 an hour. Donald's gross income for the years 1997, 1998, and 1999 was $58,688.39, $68,400.00, and $62,368.38, respectively.

[¶ 4] Kathleen was 50 years old at the time of trial. She is a high school graduate and received a clerical certificate from the North Dakota State School of Science in 1969. From 1969 until 1978, she worked as a clerk and secretary for a hospital in Northwood, North Dakota. From 1978 until 1983, she stayed at home with her children and provided child care in their home. Also, for about one year of this time, she worked one day a week at the McLean County Courthouse. From 1983 until 1984, Kathleen worked in medical records at the nursing home in Underwood. From 1984 to 1986, Kathleen worked as a mail carrier in Underwood for the United States Postal Service. In 1986, she was transferred into a clerking position at the post office in Washburn.

[¶ 5] Until 1997, Kathleen's status with the Postal Service was that of a part-time employee; however, she usually carried full-time hours by working extra hours at the post office in Bismarck, North Dakota, and by setting up recycling programs for postal facilities throughout the United States. In November of 1997, Kathleen was involved in a car accident in which she injured her neck and shoulders. After the accident, she returned to work at the post office in Washburn as a part-time employee. A temporary assignment to light duty was placed on her by Dr. William D. Canham, a doctor who examined Kathleen at the request of the Postal Service. Kathleen testified she was not given the option to work additional hours at the post office in Bismarck after the light duty restriction was placed on her; therefore, she was no longer able to carry full-time hours as she did before the accident.

[¶ 6] At the time of the trial, Kathleen worked an average of eight hours per week for the post office at $20.25 per hour. She also earned about $300 per month working for the Council for Educational Travel USA, a foreign exchange student program. Kathleen's gross income for the years 1997, 1998, and 1999 was $36,258.93, $11,053.93, and $15,537.63, respectively.

[¶ 7] Donald and Kathleen lived together in Washburn until March 20, 2000, when Kathleen applied for a temporary protection order against Donald. A hearing was held on March 27, 2000, and a six-month permanent protection order was entered. Also on March 27, 2000, Kathleen commenced an action for divorce. The trial court entered a judgment of divorce on December 26, 2000, that awarded Kathleen permanent spousal support of $850 per month. Donald appeals that award.

II

[¶ 8] Spousal support determinations are treated as findings of fact which will not be set aside on appeal unless clearly erroneous. See Johnson v. Johnson, 2000 ND 170, ¶ 49, 617 N.W.2d 97

. A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) only if it is induced by an erroneous view of the law, there is no evidence to support it, or, although some evidence supports it, based on the entire record, we are left with a definite and firm conviction a mistake has been made. See Riehl v. Riehl, 1999 ND 107, ¶ 7, 595 N.W.2d 10.

[¶ 9] Trial courts must consider the Ruff Fischer guidelines in making a determination of spousal support, both as to amount and duration. See id. at ¶ 8 & n. 1 (citing Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966)). The factors include:

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.

See id. at ¶ 8 (quoting Van Klootwyk v. Van Klootwyk, 1997 ND 88, ¶ 14, 563 N.W.2d 377). Although a trial court need not make specific findings as to each factor, the rationale for its determination must be discernable. See id.

[¶ 10] Upon granting a divorce, a court may compel either of the parties to pay the other party spousal support "during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively." N.D.C.C. § 14-05-24; see also Marschner v. Marschner, 2001 ND 4, ¶ 10, 621 N.W.2d 339

.1 In considering the circumstances of the parties, a trial court must take into account "the needs of the disadvantaged spouse and the supporting spouse's needs and ability to pay." Marschner, at ¶ 10. A disadvantaged spouse is one who has "foregone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse's increased earning capacity." See Riehl, 1999 ND 107, ¶ 9,

595 N.W.2d 10 (quoting Van Klootwyk, 1997 ND 88, ¶ 16,

563 N.W.2d 377). Furthermore, a valid consideration in determining whether a spouse is disadvantaged as a result of the divorce is whether there is a need to equitably balance the burdens created by the divorce where the parties cannot maintain the same standard of living apart as they enjoyed together. See Wald v. Wald, 556 N.W.2d 291, 297 (N.D.1996) ("We recognize a court must balance the burden created by a divorce when it is impossible to maintain two households at the pre-divorce standard of living."); Wiege v. Wiege, 518 N.W.2d 708, 712 (N.D.1994) ("The trial court's award of permanent support, combined with the rehabilitative support, equitably shares the overall reduction in the parties' separate standards of living and is not clearly erroneous.") (internal quotation marks omitted); Wahlberg v. Wahlberg, 479 N.W.2d 143, 145 (N.D.1992) ("Continuance of a standard of living is a valid consideration in spousal support determinations, e.g., Bagan v. Bagan, 382 N.W.2d 645 (N.D.1986), as is balancing the burdens created by the separation when it is impossible to maintain two households at the pre-divorce standard, e.g., Weir v. Weir, 374 N.W.2d 858 (N.D.1985).").

[¶ 11] Donald argues that, because Kathleen was employed throughout the parties' marriage, the trial court erred in finding Kathleen to be a disadvantaged spouse. However, a complete abandonment of work outside the home is not a prerequisite to being a disadvantaged spouse; rather, a spouse who remains out of the workforce to any degree in order to provide child care or homemaking services "has foregone opportunities and has lost advantages that accrue from work experience and employment history." Weigel v. Weigel, 2000 ND 16, ¶ 13, 604 N.W.2d 462. In concluding that Kathleen was a disadvantaged spouse, the trial court found that she has "foregone opportunities while raising their children and she has contributed during the marriage to the defendant's increased earning capacity by keeping the family going while he was able to devote much of his time to making a better living to be better equipped to support their family." The evidence at trial established that Kathleen stayed at home for five years to care for the parties' children. The trial court's finding that she was disadvantaged is not clearly erroneous.

[¶ 12] Donald argues the trial court erred in determining the amount and duration of spousal support because the evidence did not support a finding of domestic violence on the part of Donald under the Ruff-Fischer guidelines. The evidence at trial established that a six-month domestic violence protection order was issued against Donald on March 27, 2000. Additionally, Kathleen testified as to other incidents of domestic violence. Thus, there was evidence in the record of domestic violence on the part of Donald. The trial court's finding of domestic violence is not clearly erroneous. [¶ 13] Donald also argues the trial court erred because it did not consider financial misconduct on the part of Kathleen when it determined the amount and duration of spousal support. However, some of Kathleen's financial decisions proved to be lucrative for the parties. Also, a number of the real estate transactions she entered into were for the benefit of the parties' children. Additionally, the evidence at trial established Donald acquiesced in Kathleen's handling of the parties'...

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