Van Klootwyk v. Van Klootwyk

SANDSTROM, Justice,

dissenting.

[¶ 32] The question here is not whether the trial court could have awarded spousal support in this case; the question is whether it was clear error for the trial court not to make such an award. Because the trial court’s finding Michelle Van Klootwyk not disadvantaged by the divorce and not in need of rehabilitative or permanent spousal support is supported by the record, I would affirm.

[¶ 33] Sadly, in its retrial of this case, the majority omits facts and evidence which are inconsistent with its position and which support the reasonableness of the trial court’s findings. “Our review of findings of fact is limited by Rule 52(a), N.D.R.Civ.P.” Chaussee v. Thiel, 520 N.W.2d 789, 791 (N.D.1994). “In reviewing findings of fact, the evidence must be viewed in the light most favorable to *383the findings.” Chaussee. I highlight facts omitted or obscured by the majority opinion.

[¶ 34] The majority states at ¶ 20:

“[Although Michelle ‘earned’ these degrees during the marriage, she did not receive the benefit of marital funds paying the debt incurred in obtaining these degrees _”

These are misleading words. Robert Van Klootwyk testified he paid for almost all of Michelle Van Klootwyk’s undergraduate college and living expenses, including tuition, room and board, books, transportation, insurance, and clothing, totaling between $14,000 and $20,000. She testified she didn’t have it “figured out exactly,” but he probably paid “for about half of it.”

[¶ 35] Upon earning her undergraduate nursing degree, Michelle Van Klootwyk accepted a nursing job at a local hospital at a salary of about $30,000. While taking postgraduate courses, she continued working as a nurse, earning between $20,000 and $30,000 per year. She testified she was able to pay all her living expenses while working as a registered nurse and taking postgraduate courses. She was self-supporting even before earning a postgraduate degree; her income was above the annual average pay of North Dakotans. See North Dakota Department of Economic Development & Finance, North Dakota Details, Labor, Wages (May 13, 1997) <http://www.growingnd. com/details/details_labor.html> (“The average annual pay in North Dakota is $19,893.”). As Justice Neumann wrote in Heley v. Heley, 506 N.W.2d 715, 719 (N.D.1993), “Rehabilitative spousal support, on the other hand, is awarded to provide a disadvantaged spouse time and resources to acquire an education, training, work skills, or experience that will enable the spouse to become self-supporting.” And as Justice VandeWalle wrote in Wahlberg v. Wahlberg, 479 N.W.2d 143, 145 (N.D.1992):

“We have, however, also described the purpose of rehabilitative support in terms of enabling a disadvantaged spouse to achieve ‘suitable’ and ‘appropriate’ self-support. E.g. Bullock v. Bullock, 376 N.W.2d 30, 31 (N.D.1985) [citing O’Kelly, Three Concepts of Alimony in North Dakota Law, 1 N.D. Faculty J. 69, 75 (1982) ]. Accordingly, we have affirmed as appropriate awards of rehabilitative spousal support under a variety of circumstances which relate to the disadvantaged spouse’s capacity for self-support.”

Here, Michelle Van Klootwyk leaves the marriage on the threshold of completing her postgraduate degree. Her beginning salary with her postgraduate degree will place her far above the median household income in North Dakota and will be more than double the annual average pay of North Dakotans. See U.S. Bureau of the Census, 1990 U.S. Census Data: Database C90STFSA (May 13, 1997) <http://venus.eensus.gov/cdrom/look-up> (median household income in North Dakota: $23,213) and North Dakota Details, Labor, Wages.1

[¶ 36] She testified the educational costs for her postgraduate degree, including books, totaled $18,000. However, her total debt is $32,000. In at least partial explanation for her large debt, the record evidence shows she has purchased a 1993 Ford Explorer, she has made monthly mortgage payments for her adult emancipated daughter’s home since September 1995, and she has also purchased food and clothing for her adult daughters and her granddaughters. She wants Robert Van Klootwyk to pay the entire $32,000 debt.

[¶ 37] Omitted from the majority’s recitation, the record shows Robert Van Klootwyk’s necessary living expenses in Boston are considerably higher than Michelle Van Klootwyk’s living expenses in Bismarck. His net monthly income is $4,176, and he lists monthly expenses of about $3,900. She lists monthly expenses (including attorney *384fees, but excluding school costs) of about $2,300. The evidence also shows she has been able to build a retirement account and put some money in savings. Meanwhile, he has been able to meet his expenses in Boston, but does not have a retirement account or any substantial assets and does not own an automobile. He assumed the majority of the marital debt,2 which will hinder his ability to accumulate substantial assets or savings in the foreseeable future.

[t 38] Michelle Van Klootwyk argues our decision in Wahlberg supports her argument the trial court’s denial of spousal support is clearly erroneous. In Wahlberg, this Court held the award of spousal support was not clearly erroneous. In that case, the husband completed master’s and doctorate degrees in social work during the marriage. The parties’ marital estate was depleted to the extent of $19,000 for the husband’s education, but the wife received no additional education during the marriage. The wife had a nurse’s diploma certificate when she married, but because she did not have a bachelor’s degree in nursing, she had only limited job options in the nursing field. We upheld the trial court’s spousal support award requiring the husband to pay one-half the educational expenses incurred by his wife to secure a bachelor’s degree in nursing. This case is clearly distinguishable.

[¶ 39] Robert Van Klootwyk entered this marriage with two years of education and did not receive additional education during the marriage. However, Michelle Van Klootwyk obtained a bachelor’s degree in nursing during the marriage, which she concedes gives her the earning capacity to meet her own expenses, and at the time of the divorce had almost completed her postgraduate degree. In addition, Michelle Van Klootwyk has voluntarily made monthly payments on her married daughter’s mortgage and bought clothing and other things for her adult daughters and grandchildren. Michelle Van Klootwyk lived with her daughter for only two months in 1995. She continued, however, to make her daughter’s mortgage payments even though, at the time of trial, she was living with her mother and sharing the expenses of that household.

[¶ 40] Although she has college degrees, a car, and a retirement account, and he has none of these, the majority says Michelle Van Klootwyk is a disadvantaged spouse.

[¶ 41] At the conclusion of the testimony, and after considering all the facts and evidence, including that omitted by the majority, the trial court stated Michelle Van Klootwyk’s request for spousal support “is unsubstantiated” and “she is not disadvantaged by this divorce.” “The trial judge has the responsibility of weighing the evidence as well as determining the credibility of the witnesses.” Bullock v. Bullock, 376 N.W.2d 30, 31 (N.D.1985). The record evidence supports the trial court’s findings, and we should therefore conclude the court’s denial of the request for spousal support is not clearly erroneous.

[¶ 42] Dale V. Sandstrom

. Although Marcia O’Kelly, Entitlements to Spousal Support After Divorce, 61 N.D.L.Rev. 225, 257 (1985), relied on so heavily by the majority, states ”[f]ault is completely irrelevant to entitlements to rehabilitative maintenance,” the majority seeks, at ¶ 18, to bolster its case, claiming Michelle Van Klootwyk is disadvantaged because Robert Van Klootwyk drank, committed adultery, and was abusive. None of these "facts" were found by the trial court. The majority cites no authority for its premise that a person is "disadvantaged,” in a legal sense, by the spouse’s non-economic misconduct.

. Robert Van Klootwyk voluntarily assumed the marital debt, including a $7,800 debt from a failed business venture in 1991, a $12,000 debt to thc Internal Revenue Service, and a $7,000 debt to his mother for money the parties borrowed from her.