Wheeler v. Wheeler, 11354

Decision Date04 March 1988
Docket NumberNo. 11354,11354
Citation419 N.W.2d 923
PartiesRonald W. WHEELER, Plaintiff and Appellee, v. Geraldine S. WHEELER, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for plaintiff and appellee; argued by Steven L. Latham, Bismarck.

Kuchera, Stenehjem & Wills, Grand Forks, for defendant and appellant; argued by Wayne K. Stenehjem, Grand Forks.

MESCHKE, Justice.

Gerridee Wheeler appealed from modification of support payments under an agreed divorce decree, arguing the settlement agreement contemplated her employment earnings. We remand for reconsideration.

After 35 years of marriage, R.W. Wheeler and Gerridee Wheeler divorced in 1984. R.W. agreed to pay Gerridee $2,430 per month "for her support and maintenance" until his anticipated retirement in 1994. The agreement also provided:

"If Gerridee Wheeler should obtain employment, she will notify the Plaintiff informing him of the gross earnings derived from said employment. On the first day of the third month following the month in which she accepts employment, the responsibility of R.W. Wheeler for payment of the monthly alimony shall be reduced by an amount equal to one-third of the gross monthly earnings of Gerridee Wheeler by employment, but the maximum reduction for this reason shall not exceed $430.00 per month, during the period of employment."

In directing incorporation of the settlement agreement into the divorce decree, the trial court approved and confirmed it, "subject to continuing jurisdiction of the Court in the matter the [sic] necessary support and maintenance to be provided for the defendant by the plaintiff...."

Shortly after the divorce, Gerridee began working at a monthly salary exceeding $1,290, which automatically reduced her support by the agreed maximum of $430.

In January 1986, R.W. moved to modify the decree to eliminate support payments to Gerridee, arguing that she had "achieved economic rehabilitation and emancipation through employment." At the time, Gerridee earned $2,800 monthly, or $33,600 annually. She had also earned $12,400 more during 1985 as a legislative lobbyist. R.W.'s income continued at $50,000 annually.

The trial court relied upon "specifically retained jurisdiction to modify 'necessary support and maintenance,' " determined that "there has been a substantial change in circumstances that was not contemplated by the parties," and reduced the support payments to $700 monthly "[i]n order to allow the parties ... to maintain a standard of living close to their station in life." In her appeal from the modification of the decree, Gerridee argued that no substantial change of circumstances occurred, that the settlement agreement contemplated her employment earnings, and that a trial court should not alter an agreement of divorcing parties.

I. Power to Modify

This court has observed that "[t]he restrictions upon the ability of the parties to rescind contractual stipulations, ... do not apply to the power of the court to modify a [divorce] decree which may have been based upon a contractual stipulation." Becker v. Becker, 262 N.W.2d 478, 481 (N.D.1978). When a decree is based on an agreement, rather than the court's findings, the trial court should be more reluctant to revise it. Eberhart v. Eberhart, 301 N.W.2d 137, 143 (N.D.1981). But, clearly, agreed spousal support can be modified upon a showing of material change of circumstances which justifies doing so. Eberhart v. Eberhart, supra; Cook v. Cook, 364 N.W.2d 74 (N.D.1985).

In this case, the trial court expressly retained the continuing power to change support and maintenance. When a divorce decree incorporates an agreement of the parties, the other provisions of that decree are equally important. And, NDCC 14-05-24 provides:

"When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, and may compel either of the parties to provide for the maintenance of the children of the marriage, and 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. The court from time to time may modify its orders in these respects." (Emphasis added).

"North Dakota case law holds that an award of spousal support may be modified upon a showing of changed circumstances. [Citations omitted.] Furthermore, in determining that the district court has continuing jurisdiction in the matter of spousal support, we note that the judgment in the instant case contains an express reservation of jurisdiction over spousal support." Wikstrom v. Wikstrom, 359 N.W.2d 821, 825-826 (N.D.1984).

We conclude that the trial court had the power to modify the spousal support provision in this divorce decree.

II. Modification

To modify spousal support, circumstances must have changed materially. Muehler v. Muehler, 333 N.W.2d 432 (N.D.1983); Cook v. Cook, supra. Slight, or even moderate, changes in the parties' relative incomes are not necessarily material. Lipp v. Lipp, 355 N.W.2d 817, 819 (N.D.1984). "Material change" means something which substantially affects the financial abilities or needs of a party. Muehler v. Muehler, supra. The reason for changes in income must be examined, Lipp v. Lipp, supra, as well as the extent that the changes were contemplated at the time of the agreed decree. Muehler v. Muehler, supra, at 434.

Although N.D.R.Civ.P. 52(a) does not apply to decisions on motions generally, this court applies it to a motion to modify a divorce decree. Becker v. Becker, supra. A fact-finding process is required to determine that circumstances have changed materially. Corbin v. Corbin, 288 N.W.2d 61, 65 (N.D.1980). The standard of our review is whether the trial court's findings were clearly erroneous. N.D.R.Civ.P. 52(a). We set aside findings only when we have a definite and firm conviction that a mistake has been made. Jondahl v. Jondahl, 344 N.W.2d 63, 67 (N.D.1984).

At the time of the original decree, Gerridee's only income was the $2,430 monthly support she received from R.W. R.W.'s monthly income was $4,170, less the $2,430 paid to Gerridee, or a net of $1,740, and $690 per month less than Gerridee's. After the divorce, Gerridee, who had not had paying employment outside the home and had not trained for a career, obtained a well-paying job. This altered relative incomes considerably.

Gerridee's monthly earnings at the time of the modification were $2,800, and with $2,000 in support, her monthly income totalled $4,800 (and more, to the extent of her additional lobbying income). R.W.'s monthly net income, after paying $2,000 support to Gerridee, was only $2,170, far less than half of Gerridee's.

R.W. explained that his desire to retain the respect of his children motivated him to agree to a support amount that would enable Gerridee to maintain the standard of living she had acquired during their marriage. The settlement agreement contemplated that Gerridee might "obtain employment," but it did not require her to do so. It automatically reduced support "by an amount equal to one-third of [her] gross monthly earnings...." According to R.W., this reduction relieved him from the amount of the monthly mortgage payment on the house, as property distributed to Gerridee, without anticipating any greater potential of her future earnings. R.W. testified that no discussions of further support reduction took place because: "If I would have, she'd have never gone to work." At the modification hearing, Gerridee did not testify.

We agree with the trial court that "Gerridee must be complimented and admired in using her talents and abilities in obtaining her present position and earnings." But, considering that the expressed purpose of the payment was "for her support and maintenance," we cannot say that the trial court was clearly erroneous in finding that the settlement agreement did not contemplate the full extent of Gerridee's employment earnings. While a trial court should be more reluctant to revise agreed support, it can do so for a reason not fully contemplated by the parties.

R.W. testified that the purpose of the support provision was to permit Gerridee to maintain her standard of living. The trial court reduced Gerridee's support to $700 per month "[i]n order to allow the parties ... to maintain a standard of living close to their station in life." This is one appropriate consideration, since divorcing parties' resources often are " 'not sufficient to maintain each of the parties at the same standard of...

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