Wagner v. Wagner

• Decision Date: 26 June 2007
• Docket Number: No. 20060228.,20060228.
• Citation: 2007 ND 101,733 N.W.2d 593
• Parties: Robisita WAGNER, Plaintiff, Appellant and Cross-Appellee v. Oral WAGNER, Defendant, Appellee and Cross-Appellant.
• Court: North Dakota Supreme Court

733 N.W.2d 593

2007 ND 101

Robisita WAGNER, Plaintiff, Appellant and Cross-Appellee v. Oral WAGNER, Defendant, Appellee and Cross-Appellant.

No. 20060228.

Supreme Court of North Dakota.

June 26, 2007.

Kent M. Morrow, Severin, Ringsak & Morrow, Bismarck, ND, for plaintiff, appellant and cross-appellee.

Gregory Ian Runge, Bismarck, ND, for defendant, appellee and cross-appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Robisita Wagner appealed and Oral Wagner cross-appealed from a divorce judgment, ordering Oral Wagner to pay child support, dividing the parties' marital property, and awarding Robisita Wagner spousal support. We affirm the district court's award of child support; however, because we conclude the court erred in its distribution of the marital property and award of spousal support and misapplied the law in not awarding attorney's fees, we reverse and remand for further proceedings.

I

[¶ 2] Robisita and Oral Wagner were married on June 11, 1992, in Manila in the Philippines. The district court found that they had met through an advertisement in a magazine and that at the time of their marriage, Oral Wagner was fifty-two years old and Robisita Wagner was twenty-eight years old. Neither of the parties had previously been married. The parties had one child born to the marriage in March 1994.

[¶ 3] Prior to the marriage, Oral Wagner had farmed his family farm near Arena his entire life, which includes 1,930 acres of crop and grazing land. Robisita Wagner had previously received a business management degree from a university in the Philippines and had been employed as a housekeeper and a secretary in a casino. She received her visa to come to the United States in February 1993 and became a United States citizen in March 1996. During their marriage, Oral Wagner and Robisita Wagner lived on the family farm. The district court found that although Robisita Wagner did little farmwork, she did the bulk of the housework and childcare. The court also found that Oral Wagner is presently a retired, disabled farmer suffering from diabetes, while Robisita Wagner is otherwise in good health.

[¶ 4] Robisita Wagner commenced this divorce action in July 2004. In March 2005, Robisita Wagner filed the complaint and moved for a default judgment. In April 2005, the district court held a hearing on Robisita Wagner's motion for default judgment. The court issued a partial default judgment in July 2005, which resolved the issues of child support and visitation, set Oral Wagner's child support obligation at $475 per month, required Oral Wagner to provide health insurance, and distributed the parties' personal property. At that time, the court reserved ruling on the issues of spousal support, distribution of the real estate in the marital estate, distribution of the parties' debts, and attorney's fees. An additional hearing was scheduled for October 2005, but the court granted a continuance after Oral Wagner retained counsel to represent him.

[¶ 5] Oral Wagner subsequently moved for relief from the partial default judgment. After a hearing, the district court vacated the partial judgment, "except for the issues of the divorce being granted, of child custody; and the parties' personal property presently in each's possession." The court further held that although the child support was incorrectly calculated, the child support would remain at the amount previously set, and "[a]ny overage or arrearage in child support, the issues of visitation, all other personal property, debt and real property shall be addressed at the trial."

[¶ 6] On June 1, 2006, a trial was held in the district court. Because the parties had previously agreed on a visitation schedule and that Oral Wagner's correct child support obligation was $182 per month, the court determined the remaining issues for trial were the date the agreed child support obligation started and how to handle any resulting overpayment, disposition of the remaining real property and equipment, disposition of the marital debt, spousal support, and attorney's fees.

[¶ 7] After trial, the district court held Oral Wagner's $182 per month child support obligation would commence June 1, 2006, but refused to retroactively order the reduced amount, concluding it was not in the child's best interests and the obligation was incorrectly calculated at the outset due to Oral Wagner's initial failure to participate in the divorce proceedings. The court found the parties' Rule 8.3 Property and Debt listing accurately stated the marital assets and debts, indicating a net marital estate of approximately $332,500, including $464,000 in land assets, $41,600 in farm machinery and equipment, and approximately $174,700 in debt. The court ordered Oral Wagner to pay Robisita Wagner $12,000 for her share of the distribution of the marital property and to pay her spousal support in the amount of $200 per month for two years. The district court awarded Oral Wagner the remaining assets and all marital debts.

II

[¶ 8] Robisita Wagner argues the district court erred in distributing the parties' marital property and in awarding spousal support.

A

[¶ 9] Under N.D.C.C. § 14-05-24(1), the district court must make an equitable distribution of the parties' marital property and debts. Holden v. Holden, 2007 ND 29, ¶ 10, 728 N.W.2d 312; Kostelecky v. Kostelecky, 2006 ND 120, ¶ 12, 714 N.W.2d 845. In distributing marital property, the district court must consider all of the parties' assets to ensure the division is equitable. Donlin v. Donlin, 2007 ND 5, ¶ 11, 725 N.W.2d 905; Kostelecky, at ¶ 12. After including all of the parties' marital assets, the court must consider the Ruff-Fischer guidelines in its distribution of the parties' assets. Bladow v. Bladow, 2003 ND 123, ¶ 7, 665 N.W.2d 724. Under the Ruff-Fischer guidelines, the court must consider:

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.

Id. (quotations omitted); Donlin, at ¶ 11.

[¶ 10] The district court is not required to make specific findings on each Ruff-Fischer factor, but must explain the rationale for its decision. Kostelecky, 2006 ND 120, ¶ 13, 714 N.W.2d 845; Bladow, 2003 ND 123, ¶ 7, 665 N.W.2d 724. Although the property division need not be equal to be equitable, the district court must explain any substantial disparity. Kostelecky, at ¶ 13.

[¶ 11] "North Dakota law does not mandate a set formula or method to determine how marital property is to be divided; rather, the division is based on the particular circumstances of each case." Holden, 2007 ND 29, ¶ 10, 728 N.W.2d 312 (citing Ulsaker v. White, 2006 ND 133, ¶ 14, 717 N.W.2d 567). We have recognized that a long-term marriage supports an equal distribution of property. Holden, at ¶ 10 (quoting Donlin, 2007 ND 5, ¶ 11, 725 N.W.2d 905). We have also recognized that liquidation of an ongoing farming or business operation is ordinarily a last resort. Holden, at ¶ 14; Kostelecky, at ¶ 13; Gibbon v. Gibbon, 1997 ND 210, ¶ 7, 569 N.W.2d 707. "We have upheld the distribution of farm assets to one spouse with an offsetting monetary award to the other spouse." Gibbon, at ¶ 7.

[¶ 12] Here, the district court considered the Ruff-Fischer guidelines and made a number of additional findings. The district court found that at the time of trial Oral Wagner was sixty-five years old and Robisita Wagner was forty-two years old. Regarding their respective earning abilities, the court found that Robisita had a business management degree she never used and that although she previously had secretarial and housekeeping jobs, she did not work during the marriage. Robisita Wagner testified that she did not speak English well enough to obtain a business management job and that while she had searched for jobs without success, she would like to be trained as a medical transcriptionist. The court found there was no reason Robisita Wagner could not earn at least a minimum wage. The court found Oral Wagner is disabled, unable to farm or ranch, and rents out the farm land. The court found that Oral Wagner rents out the crop land for $14,500 per year and the pasture land for $500 per year and that Oral Wagner has no other income, other than social security disability payments, and has no other earning ability.

[¶ 13] Regarding the parties' conduct during the marriage, the district court found that neither party alleged abuse on the part of the other, and Robisita Wagner did the homemaking and childcare while Oral Wagner did the farm and ranch work. The court also found that Robisita Wagner did accumulate large telephone bills. In considering the parties' station in life, the court found that Robisita Wagner is relatively young, but never apparently owned much although she testified that her income in Hong Kong was substantial. The court stated, "She would be what would be expected of a typical farm wife thirty years ago. The fact that she was a `mail order bride' and has some difficulty with English contributes to her station in life, and may make it harder for her to improve upon it than others of similar age and education." The court found Oral Wagner is a retired, disabled farmer who could make ends meet, but nothing more. The district court found that although neither had any unusual circumstances or necessities, Oral Wagner is disabled due to bad knees and has diabetes that is controlled by medication, while Robisita Wagner has an iron deficiency for which she takes medication but is otherwise in good health.

[¶ 14] Specifically, regarding the parties' financial circumstances, the court found (...