Weir v. Weir

• Decision Date: 06 September 1985
• Docket Number: No. 10870,10870
• Citation: 374 N.W.2d 858
• Parties: Rebecca J. WEIR, Plaintiff and Appellee, v. H. Patrick WEIR, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 858

374 N.W.2d 858

Rebecca J. WEIR, Plaintiff and Appellee, v. H. Patrick WEIR, Defendant and Appellant.

Civ. No. 10870.

Supreme Court of North Dakota.

Sept. 6, 1985.

Stefanson, Landberg, Plambeck & Geeslin, Moorhead, Mn., for plaintiff and appellee; argued by Randolph E. Stefanson, Moorhead, Mn.

Lanier, Knox & Olson, Fargo, for defendant and appellant; argued by Robert V. Bolinske, Zuger & Bucklin, Bismarck, on behalf of Lanier, Knox & Olson.

ERICKSTAD, Chief Justice.

H. Patrick Weir appeals from a district court judgment dated October 11, 1984, which granted him and Rebecca J. Weir a divorce on the ground of irreconcilable differences, divided their assets and liabilities, placed in the custody of Rebecca their minor child, and ordered Patrick to pay to Rebecca child support and "alimony." Patrick's sole contention on appeal is that the district court's award of alimony to Rebecca, in varying amounts and for a period of twenty years, is clearly erroneous. We affirm in major part, reverse in minor part and remand.

Patrick and Rebecca were married on June 10, 1961. Of four boys born of the marriage only Justin, age 15, is a minor. Patrick was graduated from the University of Notre Dame Law School in 1964, and since 1965 has been engaged in the practice of law in Fargo. Rebecca has not been employed outside the home for any significant period of time after Patrick attended law school. She has a bachelor's degree in university studies and is currently pursuing a master's degree in addiction counseling at North Dakota State University. Both are 44 years of age and are presently in good health.

Patrick and Rebecca began experiencing marital difficulties in the mid-1970's. Patrick testified that Rebecca "is a good and faithful mother to my children and she was a faithful wife to me." He testified that the immediate cause of his separation from the home was that he and Rebecca were unable to get along and that he was involved with another woman. Rebecca testified that the "separation was brought about because Pat told me he was having an affair with my friend."

They became considerably indebted during their marriage and there was little, if any, property to be divided at the time of the divorce which could produce income to the parties. Rebecca brought the divorce action which was tried to the court. A trial court's findings of fact presumably disclose the underlying basis of the court's determinations. See, e.g., Tuff v. Tuff, 333 N.W.2d 421, 424 (N.D.1983). Therefore, it is appropriate that we set forth the following relevant findings of fact made by the trial court:

"IV.

"The Defendant is an attorney ...; Plaintiff has a bachelor's degree in university studies, and has not been employed outside the home for any significant period since Defendant was in law school.

* * *

* * *

"IX.

"The parties disagree as to the value of the Defendant's interest in his law firm's building, the Defendant valuing his interest at $20,000.00, and the Plaintiff valuing Defendant's interest at $30,000.00.

"X.

"The parties disagree as to the value, extent and relevance of Plaintiff's contribution to Defendant's law school education.

"XI.

"The parties disagree as to the value of Defendant's interest in his law firm, the Defendant valuing his interest at $47,500.00, and the Plaintiff valuing his interest at $162,487.00.

"XII.

"Based only upon the evidence presented, an accurate present valuation of the Defendant's interest in his law firm and its building cannot be made.

"XIII.

"Plaintiff is presently working toward a master's degree in addiction counseling; evidence indicates she will have completed her training by 1986, and may expect an entry level salary of $12,000.00 per year, increasing to $15,000.00 in three years.

"XIV.

"Evidence indicates that Defendant should continue to receive a salary of just under $80,000.00 per year, and, after 1985, once again receive bonuses on the order of $10,000.00 to $20,000.00 per year.

"XV.

"Defendant had been with his law firm for approximately 17 1/2 years at the time the parties separated; it is reasonable to assume that he may very likely remain with the firm until age 65, a total of approximately 40 years.

"XVI.

"It appears that the style of living enjoyed by the parties prior to the trial was financed in significant part by an accumulating debt.

"XVII.

"Evidence indicates that Defendant will not receive a bonus in 1984, and that much of his income will have to be applied to debt reduction in the next five to ten years."

The trial court accepted the parties' agreement dividing the major part of their personal property, and valued and divided the parties' remaining assets and liabilities as follows To Patrick

                Assets
                Cash                        $     500
                Receivables                     5,000
                1/2 anticipated tax refund      5,675
                Fargo Country Club Stock        2,800
                Life Insurance (cash
                  surrender value)              1,338
                Liabilities
                Dakota Bank note              (64,250)
                Pension plan loan             (51,500)
                Note to law firm              (20,000)
                Accrued interest              ( 7,382)
                Accounts payable              ( 6,650)
                Federal and State taxes       ( 4,873)
                                            ----------
                                            ($139,341)
                                            ----------
                

                 To Rebecca
                Assets
                Honda automobile            $ 2,000
                GMC van                       8,875
                1/2 anticipated tax refund    5,675
                Liabilities:
                Accounts payable             (1,739)
                GMC van loan                 (3,400)
                                            --------
                                            $11,412
                                            --------
                

The court ordered that the parties' house valued at $106,950 and subject to a mortgage of $102,202 be sold, the proceeds used to pay the mortgage, and any remaining proceeds be paid to Rebecca. Patrick's interest in his law firm, certain pension plans (valued at $129,776 subject to a loan of $51,500), and an office building owned by the law firm were divided between the parties on the basis of a fixed percentage of any future payments actually realized from these assets, ¹ as follows:

"Plaintiff's marital interest shall be determined by one-half of the 17 1/2 years the parties lived together as husband and wife while Defendant worked for his law firm, divided by the total number of years benefits were accumulated prior to being paid; the total of all payments to Plaintiff on account of Defendant's pension plans are to be reduced by one-half the present outstanding indebtedness of $51,500.00, provided, however, that no individual installment shall be reduced by more than 20%; ..."

The court ordered that Patrick pay child support of $300 per month, provide medical insurance coverage for Justin, and be responsible for all unreimbursed medical and dental costs for the child until he reaches the age of 18. In addition, he was ordered to maintain certain life insurance policies. Patrick is entitled to claim the child as a dependent for tax purposes.

The court also ordered that Patrick pay to Rebecca

"... as alimony, ² for the remaining months of 1984 the sum of $1,300.00 per month. Commencing January 1, 1985, Defendant shall pay to Plaintiff the sum of $2,200.00 per month. Commencing January 1, 1987, that sum shall be reduced to $1,800.00 per month, and commencing January 1, 1990, to $1,500.00 per month.

"Defendant shall be responsible for the payment of alimony to Plaintiff as set forth in the preceding paragraph for a period of 20 years, or until Plaintiff shall remarry, if that should occur at an earlier date, or until Plaintiff receives property due her under the payout of pension or law firm or building interests, if such payout should commence at an earlier date. If payout to Plaintiff of pension or law firm or building interests should commence while alimony is still payable, alimony payments shall continue for 20 years as ordered, but shall be reduced on a pro rata basis by the amount of such payouts. Alimony payments shall terminate upon Plaintiff's death, but any property payouts due Plaintiff at her death shall be payable to her estate."

Patrick contends that the amount and duration of spousal support awarded to Rebecca lacks substantial evidentiary support and was induced by an erroneous view of the law.

A trial court's determinations on matters of spousal support are treated as findings of fact which will not be set aside on appeal unless clearly erroneous. Oviatt v. Oviatt, 355 N.W.2d 825, 827 (N.D.1984); Bullock v. Bullock, 354 N.W.2d 904, 911 (N.D.1984). A finding of fact is clearly erroneous when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Hedin v. Hedin, 370 N.W.2d at 547.

Section 14-05-24, N.D.C.C., authorizes the trial court "to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively."

Factors to be considered when determining whether or not an award of spousal support is appropriate 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. Smith v. Smith, 326 N.W.2d 697 (N.D.1982); Mees v. Mees, 325 N.W.2d 207 (N.D.1982).

We have recognized that one of the functions of spousal support is rehabilitation of the party who has been disadvantaged by the divorce. If rehabilitation is not possible, spousal support may be permanent to provide maintenance for the disadvantaged...