Schiff v. Schiff

MARING, Justice,

dissenting.

[¶ 19] I, respectfully, dissent from parts II and III of the majority opinion. I am of the opinion the trial court clearly erred in its decision with regard to spousal support and property distribution. I would reverse the trial court’s decision and remand for sufficient findings as to Deborah Schiffs need for spousal support and Jerome Schiffs ability to pay spousal support and for a proper application of the Ruff-Fischer guidelines.

[¶ 20] When awarding spousal support, the trial court must consider the supporting spouse’s needs and ability to pay and the receiving spouse’s income and needs. Paulson v. Paulson, 2010 ND 100, ¶ 11, 783 N.W.2d 262 (citing Gustafson v. Gustafson, 2008 ND 233, ¶ 6, 758 N.W.2d 895); see also Lindberg v. Lindberg, 2009 ND 136, ¶ 28, 770 N.W.2d 252. “ ‘This Court has not adopted the “minimalist doctrine” — one where the only determination is whether the recipient of support is merely “self-supporting.” ’ ” Paulson, at ¶ 11 (quoting Moilan v. Moilan, 1999 ND 103, ¶ 11, 598 N.W.2d 81 (quoting Van Klootwyk v. Van Klootwyk, 1997 ND 88, ¶¶ 15-16, 563 N.W.2d 377)). The trial court “must consider the needs of the spouse seeking support and the ability of the other spouse to pay in conjunction with the Ruff-Fischer guidelines.” Hoverson v. Hoverson, 2013 ND 48, ¶ 14, 828 N.W.2d 510. Under the Ruff-Fischer guidelines, the trial court considers:

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.

Hoverson, at ¶ 9 (emphasis added); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966); Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (N.D.1952).

[¶ 21] This Court will reverse a spousal support decision if the trial court fails to make sufficient findings with regard to the parties’ needs and ability to pay. See Paulson, 2010 ND 100, ¶ 15, 783 N.W.2d 262 (holding the trial court failed to analyze the parties’ needs and ability to pay and reversing and remanding for appropri*817ate findings and analysis under the Rujf-Fischer guidelines); Lindberg, 2009 ND 136, ¶ 38, 770 N.W.2d 252 (holding the trial court failed to state the basis for its spousal support decision and reversing and remanding for additional findings); Shields v. Shields, 2003 ND 16, ¶ 12, 656 N.W.2d 712 (reversing the trial court’s denial of spousal support based on insufficient findings and remanding for reconsideration of the parties’ needs and the husband’s ability to pay).

[¶ 22] In Paulson, this Court concluded the trial court failed to analyze the spouse’s needs and the supporting spouse’s ability to pay. 2010 ND 100, ¶ 15, 783 N.W.2d 262. Furthermore, this Court held the trial court was required to analyze the Rujf-Fischer guidelines in making spousal support decisions, “which includes more than disparity of income.” Id.

[¶ 23] Here, the trial court denied Deborah Schiffs request for spousal support. The trial court found:

[Deborah Schiff] is an educated and professional woman who is able bodied and currently employed. While she would like to retire soon, this is not a special right she has earned by her marriage to [Jerome Schiff]. Her health issues do not prevent her from working until a more typical retirement age. She will also receive a reasonable amount of marital equity for her use and support following this divorce.

The trial court also found Deborah Schiff earns approximately $2,735 per month while Jerome Schiffs current gross income is $47,290 or approximately $3,950 per month. The trial court did not make any findings with respect to Deborah Schiffs need for spousal support or Jerome Schiffs need and ability to pay spousal support. Without sufficient findings of fact, this Court is unable to discern the basis for the trial court’s decision. Therefore, I would reverse for sufficient findings of fact with regard to the parties’ needs and Jerome Schiffs ability to pay spousal support.

[¶ 24] The trial court justifies the spousal support decision by finding “[Deborah Schiff] will receive a reasonable amount of the marital equity for her use and support following this divorce.” This conclusion is disingenuous. The trial court found “because [Jerome Schiff] is awarded the real property, a cash settlement must be provided to [Deborah Schiff] to make the distribution equitable.” Among the real property awarded to Jerome Schiff is all of the marital estate’s incoming-producing property, namely the farming operation. Under the Rujf-Fischer guidelines, the trial court in awarding spousal support and property distribution must consider “[the parties] financial circumstances as shown by the property owned at the time, its value at the time, [and] its income-producing capacity, if any....” Paulson, 2010 ND 100, ¶ 9, 783 N.W.2d 262, Lindberg, at ¶ 28; Shields, 2003 ND 16, ¶ 7, 656 N.W.2d 712.

[¶ 25] This Court has reversed and remanded a trial court’s spousal support decision when the trial court’s spousal support decision required a spouse to deplete her cash property distribution as a basis for support while awarding the other spouse income-producing property. See Marschner v. Marschner, 2001 ND 4, ¶ 16, 621 N.W.2d 339; see also Sateren v. Sateren, 488 N.W.2d 631, 634-35 (N.D.1992). In Marschner, the trial court did not award Carol Marschner spousal support, concluding that once Carol Marschner received her cash inheritance and cash settlement she would no longer need spousal support. Marschner, at ¶ 9. This Court noted the parties received a “virtually equal share of the family assets, either in cash or in property.” Id. at ¶ 14. Richard Marschner received the income-producing *818assets, the family farm, while Carol Mar-schner received a cash settlement. Id. at ¶¶ 9, 14. However, this Court concluded:

Although this distribution may not be characterized as a “windfall” to Richard Marschner, the effect of the property distribution is to require Carol Mar-schner to forego spousal support because she is to receive her property distribution in a cash payment. As a result, she will be required to deplete her property distribution for living expenses. Richard Marschner will retain the farm.... Richard Marschner will retain an income-producing asset while Carol Marschner will have depleted her share of the property distribution to find a residence and otherwise subsist.

Id. at ¶ 19. This Court reversed and remanded for reconsideration of the spousal support decision and the property distribution. Id. at ¶ 23.

[¶ 26] This case is virtually identical to the facts in Marschner. Here, Jerome Schiff was awarded all of the income-producing assets, which consisted of the farming operation, while Deborah Schiff was awarded a cash settlement. While preserving a family farm is a “laudable purpose,” it “is to be achieved only if it is possible to do so without detriment to the other party.” Id. at ¶ 17. “Preserving the family farm is not to be done at all costs nor should it engulf all other factors. Rather, we have said its purpose is to avoid the potential for economic hardship if the farm is divided or sold.” Id. at ¶ 18 (quotation omitted). The trial court relied on Deborah Schiffs cash settlement to conclude Deborah Schiff was not entitled to spousal support. A “spouse is not required to deplete her property distribution in order to live.” Id. at ¶ 16. I am of the opinion the trial court misapplied the Ruff-Fischer guidelines and the spousal support decision is clearly erroneous.

[¶ 27] Further, I am of the opinion the property distribution is clearly erroneous. An equitable distribution of property should account for disparate division of income-producing property awarded to each spouse. Sanford v. Sanford, 301 N.W.2d 118, 127 (N.D.1980). In Sanford, Reed Sanford “received the bulk of the parties’ real estate and stock holdings” while Glenda Sanford “received predominantly cash awards.” Id. Based on the disparity in the division of income-producing property, in addition to the parties’ mutual efforts to accumulate the income-producing property, this Court held the property distribution was clearly erroneous. Id. at 127-28.

[¶ 28] Here, the trial court awarded Jerome Schiff all of the income-producing property and Deborah Schiff a cash settlement. Although the property distribution is approximately a 50% split, when viewed with the trial court’s denial of spousal support and the income-producing capacity of the assets each party received, the spousal support award and the property distribution are clearly erroneous. See Marschner, 2001 ND 4, ¶ 19, 621 N.W.2d 339 (“The property division, viewed in a vacuum, may appear equitable, but when the denial of spousal support is included in the analysis it is not equitable.”).

[¶29] Therefore, I would reverse and remand for sufficient findings with regard to Deborah Schiffs need for spousal support and Jerome Schiffs needs and ability to pay spousal support and for a proper application of the Ruff-Fischer guidelines with regard to spousal support and property distribution.

[¶ 30] MARY MUEHLEN MARING.