Wiege v. Wiege, 930287

• Decision Date: 28 June 1994
• Docket Number: No. 930287,930287
• Parties: Dianne WIEGE, Plaintiff and Appellee, v. Lawrence WIEGE, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 708

518 N.W.2d 708

Dianne WIEGE, Plaintiff and Appellee, v. Lawrence WIEGE, Defendant and Appellant.

Civ. No. 930287.

Supreme Court of North Dakota.

June 28, 1994.

Mahoney & Mahoney, Center, for plaintiff and appellee; argued by Ann Mahoney.

Wheeler Wolf, Bismarck, for defendant and appellant; argued by Orell D. Schmitz.

MESCHKE, Justice.

Larry Wiege appeals from a divorce judgment dividing property and awarding spousal support to Dianne Wiege. We affirm.

Larry and Dianne were married in 1971 and have two adult children. Larry also adopted Dianne's daughter from a prior marriage. The marital estate was divided equally, with Larry keeping the farm and Dianne receiving $33,000 over ten years at 7% interest with the interest offset by spousal support paid. Dianne requested monthly spousal support of $1,300 for five years and $500 for an additional four years. Larry made four alternative proposals combining support with property distribution. The trial court rejected these suggestions. Instead, it ordered Larry to pay monthly support of $1,000 for six years or until Dianne received a four-year college degree, whichever is earlier, and then $300 until she dies.

Dianne was 46 years old and Larry was 47 at the divorce. Both Larry and Dianne are relatively healthy and each has a high school education, Larry by diploma and Dianne by GED. Larry has worked for 18 years at a telephone cooperative and currently earns $18.90 an hour. His employment benefits include pension contributions and medical insurance. He also receives monthly military disability payments and raises a few cattle on the farm. Dianne had several low-paying jobs during the marriage. She has worked since August 1992 at a Bismarck store and currently earns $4.90 an hour. Her benefits include pension contributions after eight years with the company and partial payment of medical insurance premiums. Dianne cannot earn more at her current job without a college degree and must work full-time to receive medical benefits.

The trial court found that Dianne "will be disadvantaged by this divorce." It concluded that Dianne needed $700 monthly, in addition to her current wages of $530 and property distribution installments of $250, to pay her necessary living expenses of $1,500 while attending college. It also concluded that even if Dianne earned a college degree, permanent monthly support of $300 would be "equitable ... to offset the permanent economic disadvantage suffered by Mrs. Wiege as a consequence of the time she has spent functioning in the home."

Larry disagrees with the trial court's finding that Dianne was disadvantaged by the divorce and needs rehabilitative support. He also argues that "[o]nly in a situation where a party is incapable of rehabilitation should permanent spousal support be awarded." Dianne argues that rehabilitative and permanent spousal support are both appropriate in this case. We agree.

When granting a divorce, a trial court may "compel either of the parties ... 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." NDCC 14-05-24. Spousal support determinations are findings of fact that will not be reversed on appeal unless clearly erroneous. LaVoi v. LaVoi, 505 N.W.2d 384, 386 (N.D.1993). Detailed findings of fact are helpful but not required if the trial court's reasons are fairly discernible by deduction or inference. Pfliger v. Pfliger, 461 N.W.2d 432, 436 (N.D.1990). Here, the trial court properly concluded that both rehabilitative and permanent support were necessary to equitably share the reduction in Dianne's standard of living caused by the divorce.

Both Dianne and Larry view the trial court's decision as awarding monthly rehabilitative support of $700 for up to six years and permanent support of $300. Regardless of the form used, spousal support should be awarded only after consideration of the Ruff-Fischer factors. LaVoi v. LaVoi, 505 N.W.2d at 386 (permanent); McAdoo v. McAdoo, 492 N.W.2d 66, 71 (N.D.1992) (rehabilitative). These factors include:

[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.

Weir v. Weir, 374 N.W.2d 858, 862 (N.D.1985). The distribution of marital property should also be considered when "setting the amount of support for a disadvantaged spouse." Pfliger, 461 N.W.2d at 436. Other matters can include retirement savings or pensions, Roen v. Roen, 438 N.W.2d 170, 172 (N.D.1989), the liquidity or income-producing nature of the property distributed to the disadvantaged spouse Heley v. Heley, 506 N.W.2d 715, 720 (N.D.1993), and whether the disadvantaged spouse will have to use up that property to live. Id.

A spouse must be disadvantaged as a result of the divorce for rehabilitation or maintenance to be appropriate. Weir, 374 N.W.2d at 862. We prefer temporary rehabilitative support to remedy this disadvantage, and indefinite permanent support is appropriate only if a spouse "cannot be adequately restored to independent economic status." Heley, 506 N.W.2d at 720. Therefore, a trial court should consider rehabilitative support first because it may eliminate the need for permanent support.

The purpose of rehabilitative support is to provide a disadvantaged spouse the opportunity to become self-supporting through additional training, education, or experience. LaVoi, 505 N.W.2d at 386, citing Rustand v. Rustand, 379 N.W.2d 806, 807 (N.D.1986). A spouse's need for rehabilitation is not limited to the "prevention of destitution," but can also be based on their standard of living before the divorce. Wahlberg v. Wahlberg, 479 N.W.2d 143, 145 (N.D.1992). Rehabilitative support can "balanc[e] the burdens created by the separation" if the parties do not have enough income to maintain the same standard of living apart as they enjoyed together. Wahlberg, id., citing Weir, 374 N.W.2d at 864. As we indicated in Weir, 374 N.W.2d at 864-65, Larry's ability to pay and Dianne's potential for rehabilitation should also be considered.

Dianne is clearly disadvantaged by this divorce. The trial court found: "She has had limited opportunity to advance her education or her employment and earning skills because of the burden of her homemaking duties." Dianne's current wages are not sufficient to pay her monthly living expenses, much less maintain her previous standard of living. By comparison, in addition to his farm income and disability payments, Larry's hourly wage is almost four times higher than Dianne's. As in Roen, 438 N.W.2d at 172, this substantial disparity in earning abilities justifies rehabilitative support for Dianne.

Assuming rehabilitative support was properly awarded, Larry argues that "[i]mplicit in this decision is that Dian[n]e will be rehabilitated after the 72-month period." He argues that permanent support is not appropriate because Dianne "would at that point be adequately restored to an independent economic status." We disagree.

Permanent support is not limited to a spouse who is incapable of any rehabilitation, as Larry suggests, but may also be awarded to a spouse incapable of adequate rehabilitation or self-support. LaVoi, 505 N.W.2d at 386; see also Heley, 506 N.W.2d at 720 (support appropriate until spouse is rehabilitated and "possibly at a reduced rate for an indefinite term"). Paraphrasing our explanation in Weir,

... the fact that [Dianne] is capable of rehabilitation should not in itself deprive her of reasonable spousal support in light of the fact that she is likely to have a much lower income producing capacity than [Larry], which earning capacity she aided [Larry] in obtaining through her contribution as the homemaker.

374 N.W.2d at 864; compare McAdoo, 492 N.W.2d at 71 (age of spouse, short duration of marriage, and potential for adequate rehabilitation outweigh slight disadvantage from divorce). Even with a college degree in six years, Dianne "is now at an age at which" it is unlikely that she can "attain an earning capacity comparable to that of her husband" or sufficient to maintain her previous standard of living. LaVoi, 505 N.W.2d at 386 (quotation omitted). 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. Id. at 387.

Larry does not argue that the total amount of spousal support in this case is excessive, but complains that the trial court had no standards for combining both types of support. However, there is no magic formula for determining how much or what type of support should be awarded. Even Larry's attorney admitted at oral argument that guidelines similar to those for child support could not be adopted for spousal support. Although "treated differently," Rustand, 379 N.W.2d at 807, rehabilitative and permanent support are both awarded after consideration of the Ruff-Fischer factors to either maintain the parties' pre-divorce standard of living or equitably share the burden caused by the divorce. See LaVoi, 505 N.W.2d at 387. Because both forms of support are based on the same factors and serve the same purposes, we believe more specific guidelines are impossible and unnecessary.

Larry also argues that the trial court erroneously refused to terminate Dianne's support if she remarries. Unless there are extraordinary circumstances, spousal support will terminate when the disadvantaged spouse remarries. Rustand, 379 N.W.2d at 807. "Therefore, it is...