Schulte v. Kramer

SANDSTROM, Justice,

concurring in part and dissenting in part.

[¶ 39] Because the majority impermis-sibly reweighs the evidence and substitutes its judgment for that of the district court, I respectfully dissent from that portion of the majority opinion which reverses the district court’s decision terminating Kramer’s obligation to pay spousal support.

[¶ 40] Under N.D.C.C. § 14-05-24.1, the district court retains jurisdiction to modify a spousal support order when awarded in the original divorce judgment. “The district court’s determination whether there has been a material change in circumstances warranting modification of spousal support is a finding of fact and will be set aside on appeal only if it is clearly erroneous.” Rothberg v. Rothberg, 2007 ND 24, ¶ 6, 727 N.W.2d 771 (quotations and citations omitted); see also Ebach v. Ebach, 2008 ND 187, ¶ 9, 757 N.W.2d 34; Greenwood v. Greenwood, 1999 ND 126, ¶ 17, 596 N.W.2d 317 (“district court’s determination as to whether there has been an unforeseen material change in circumstances justifying a reduction of support is a finding of fact” (emphasis added)). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, *331after review of the entire record, we are left with a definite and firm conviction a mistake has been made. Leverson v. Leverson, 2011 ND 158, ¶7, 801 N.W.2d 740; Hagel v. Hagel, 2006 ND 181, ¶ 11, 721 N.W.2d 1.

[¶ 41] Under the clearly erroneous standard of review, this Court does not reassess the witnesses’ credibility or reweigh conflicting evidence. Morton County Soc. Serv. Bd. v. Cramer, 2010 ND 58, ¶26, 780 N.W.2d 688; Stanhope v. Phillips-Stanhope, 2008 ND 61, ¶ 10, 747 N.W.2d 79. “The district court has the advantage of judging the credibility of witnesses by hearing and observing them and of weighing the evidence as it is introduced, rather than from a cold record.” Stanhope, at ¶ 10 (citing Ramstad v. Biewer, 1999 ND 23, ¶ 22, 589 N.W.2d 905; Ludwig v. Burchill, 481 N.W.2d 464, 469 (N.D.1992)); see also Frueh v. Frueh, 2009 ND 155, ¶ 7, 771 N.W.2d 593. A district court’s choice between two permissible views of the weight of the evidence is not clearly erroneous. Stanhope, at ¶ 10; Frueh, at ¶ 16. We do not substitute our judgment for a district court’s decision merely because we might have reached a different result. Cramer, at ¶ 26; Frueh, at ¶ 16; Niemann v. Niemann, 2008 ND 54, ¶ 11, 746 N.W.2d 3. The complaining party on appeal bears the burden of demonstrating a finding of fact is clearly erroneous. Frueh, at ¶ 16; Koble v. Koble, 2008 ND 11, ¶ 6, 743 N.W.2d 797.

[¶ 42] The majority opinion correctly concludes the district court’s finding that a material change of circumstances had occurred was supported by the record and was not clearly erroneous. However, I believe the majority improperly concludes the court erred when it found Kramer’s reduction in income was not voluntary or self-induced. Further, contrary to the district court’s actual findings, the majority opinion concludes the district court “essentially determined [Kramer’s] reduction in income was self-induced” when it determined Kramer’s actions led to his termination. In Muehler v. Muehler, 333 N.W.2d 432, 434 (N.D.1983), this Court explained that “[t]he legal concept of ‘change in circumstances,’ as used in divorce matters, is closely tied to equity and contemplates the application of equitable principles.” We have thus explained that “a modification proceeding is grounded in equity and is, therefore, governed by the equitable concept that one who seeks equity must do equity,” and “these equitable underpinnings of modification proceedings ... account for our holding that a voluntary or self-induced reduction in income does not justify a reduction” in support. Koch v. Williams, 456 N.W.2d 299, 301 (N.D.1990). Although the majority opinion concludes the court applied an erroneous view of the law in deciding whether the material change in circumstances justified a modification of spousal support, I believe the majority opinion’s analysis of the findings is an attempt to both reweigh the evidence and reassess the equities considered by the district court in reaching its decision.

[¶43] After considering the testimony and evidence, the district court found there had been a material change in circumstances warranting elimination of Kramer’s spousal support obligations to Schulte. The court made specific findings of fact that the reduction in Kramer’s income was not voluntary, was not self-induced, and was not made in bad faith:

9. [Kramer’s] reduction in income was not voluntary, self-induced or made in bad faith. Although [Kramer’s] actions lead [sic] to his termination and resulting reduction in income, his employer’s response was not foreseeable. [Kramer’s] conduct did not foreseeably jeopardize his employment. [Kramer] *332had been employed with Bobcat for 13 years. He had been disciplined on only one or two occasions, several years pri- or, and had been given prior permission to remove the item he did from the plant.

(Emphasis added.) In weighing the equities of the matter, the court found Bobcat’s response to Kramer’s removing an antenna from the plant’s garbage was unforeseeable; ie., it was unanticipated that Kramer’s actions would jeopardize his employment. The court specifically found Kramer “had been given prior permission to remove the item he did from the plant.” While there was testimony at the hearing from Bobcat’s labor relations supervisor explaining Kramer’s actions and Bobcat’s response to a violation of plant policy, in addition to the apparent opportunities for re-employment that may have existed at the plant following Kramer’s termination, Kramer also testified on his own behalf regarding the circumstances of his termination and his reasons for not reapplying with Bobcat. The court believed Kramer’s testimony.

[¶ 44] Kramer testified that he thought he had permission to take the antenna, which was considered garbage, and did not expect to be terminated, particularly considering his long-term employment and lack of disciplinary record. Kramer testified regarding his reasons for not reapplying with Bobcat. It is significant here that Bobcat did not offer to re-employ Kramer, either in the maintenance department or in any other department, but merely offered him the chance to reapply for any open positions as a new employee without any seniority. At the time of Bobcat’s offer for him to reapply, Kramer had already secured employment with Trail King with some supervisory responsibility and was concerned whether, at the age of almost 60, he could make it through Bobcat’s probationary period, even if hired in a less desirable position at Bobcat. The court in essence placed greater weight on Kramer’s explanation of the circumstances leading to his termination and decision not to reapply than on the testimony provided by Bobcat’s labor relations supervisor. On appeal, this Court should not reweigh evidence or reassess the credibility of witnesses.

[¶ 45] The district court also addressed evidence regarding Kramer’s ability to pay and Schulte’s present needs. In its findings, the court compared the parties’ financial circumstances and found that while Kramer’s financial situation had significantly deteriorated, Schulte’s expenses could be reduced, and her potential for greater earnings from full-time work had increased, based on her lengthy experience in cleaning and painting and multiple part-time jobs. The court found Kramer secured employment after his termination from Bobcat, but found Kramer’s annual income had been reduced from approximately $60,000 to $30,000. The court found the more than 50 percent reduction in Kramer’s income constituted a material change in circumstances and his ability to pay the divorce judgment’s support obligations had been eliminated as a result of the reduction in income. The court found Kramer sought to eliminate $15,336 of annual obligations to Schulte, which totaled more than 51 percent of his current income.

[¶ 46] Regarding Schulte’s need for support, Schulte testified that her monthly expenses were approximately $2,210. The district court found, however, that Schulte’s necessary monthly expenses could be reduced. Schulte’s testimony described various items as necessities, but the court found some were not necessities and less expensive alternatives were available. Although Schulte was working several part-time jobs, the court found, with 30 years of experience in cleaning and 40 years of experience painting, she was capa*333ble of working a full-time job and there was full-time work in Bismarck for which she had not applied. On the basis of Schulte’s testimony that it would take $12.00 an hour for her to make more at a full-time job than at her part-time positions, the court found Schulte could make $25,000 per year. The court found Schulte has no need for spousal support.

[¶47] Regarding Kramer’s ability to pay, the district court found Kramer had significantly reduced his spending after his termination from Bobcat, and despite his attempt to maintain his support obligations, Kramer had been unable to do so without relying on credit and incurring debt to meet his basic needs. The court found Kramer had no ability to continue paying health insurance obligations and his inability to pay Schulte’s premiums placed her at risk for a lapse in coverage. The court found the change in Kramer’s income was not contemplated by the parties when the separation agreement was negotiated, at which time Kramer had been with Bobcat for about five years, had a position in maintenance, and had significantly greater earnings than Schulte. The court also found Kramer did not contemplate that health coverage costs for Schulte would double.

[¶ 48] On the basis of this record, I would conclude the district court’s findings are not clearly erroneous, the court did not misapply the law, and there is evidence to support the court’s findings. I would affirm the district court’s finding that there had been a material change in circumstances warranting the termination of Kramer’s spousal support obligations.

[¶ 49] DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ., concur.