Gierke v. Gierke

MARING, Justice,

concurring in part and dissenting in part.

[¶ 37] I concur in the majority’s opinion with the exception of its conclusions in parts III and IV that the trial court’s decision regarding spousal support is not clearly erroneous and that the trial court’s decision regarding reasonable security for spousal support is not an abuse of discretion, respectively.

[¶ 38] As the majority points out, this Court has long held the trial court must consider the Ruff-Fischer guidelines in deciding whether to award spousal support. Van Klootwyk v. Van Klootwyk, 1997 ND 88, ¶ 14, 563 N.W.2d 377. The majority concludes the trial court’s decision on spousal support reflects careful consideration of several of the Ruff-Fischer guidelines including both parties’ financial circumstances, their substantial disparity of earning abilities, and H.F. Gierke’s debt payments.

[¶ 39] The trial court found the parties were married to each other on June 12,1965, and divorced on July 13, 1993. At the time of the divorce, they had been married 28 years, one month, and one day. This was a long term marriage. Judith Gierke was 21 years old when she married H.F. Gierke. She had one year of college and had been an airline stewardess for one and one-half years. While H.F. Gierke was in his last year of law school, Judith Gierke worked for two and one-half months at the University Bookstore, but then quit because of her pregnancy with their first child who was born in May 1966. Judith Gierke followed H.F. Gierke to Fort Bliss, Texas, where he was stationed in the military. Their second child was born in 1968. H.F. Gierke was then transferred to Hawaii for two years, and Judith Gierke went with him. He volunteered for duty in Vietnam, and Judith Gierke moved back to Watford City, North Dakota, in 1969. After H.F. Gierke returned from Vietnam, Judith Gierke joined him in Colorado Springs, Colorado.

[¶ 40] In 1971, when H.F. Gierke got out of the army, he and Judith Gierke moved back to H.F. Gierke’s parents’ ranch. H.F. Gierke began practicing law in Watford City. They lived either on the ranch or in Watford City until they moved to Bismarck. Judith Gierke testified that H.F. Gierke was not involved in the day-to-day child care or house care and that she fulfilled those roles. Judith Gierke did work for one year at a nursing home in Watford City before their move to Bismarck. The couple moved to Bismarck in anticipation of H.F. Gierke’s appointment to the North Dakota Supreme Court. In 1983, H.F. Gierke was appointed to the North Dakota Supreme Court.

[¶ 41] At the suggestion of H.F. Gierke, Judith Gierke started taking classes in 1984 at Mary College after she had primarily been a homemaker for almost 20 years. She still had four children to take care of at the time. *531She applied for nursing school at Med Center One and earned a nursing diploma in 1987. She started work at Med Center One in September, 1987, and was considered full-time in less than a year. She eventually went to a PRN status bedause H.F. Gierke became commander of the American Legion and wanted her to take time off to travel with him. She accompanied him at his insistence for approximately 21 to 22 days on an American Legion trip to Europe. When she returned, she could not get enough PRN hours at Med Center One so she obtained a job at St. Alexius and was almost full time PRN for close to two years. She then moved into a position in the GYN unit where she worked at the time of trial. She testified she works nights 12:00 a.m. to 8:00 a.m.

[¶42] Judith Gierke had one year of college when the parties married. She was a homemaker for almost 20 years. She deferred her own education and career to take care of their children and home. It was not until 1987 that Judith Gierke earned a nursing degree. Even after obtaining her nursing degree, she continued to place her career second for the advancement of her husband’s career.

[¶ 43] At the time of the divorce trial in 1994, Judith Gierke was 50 years old. Judith Gierke’s gross income was $16,000, and H.F. Gierke’s gross income was $183,000. The trial court found Judith Gierke has health problems including “ulcers, high blood pressure, psychological and emotional problems, back problems, and anxiety.” The trial court found the debt of the parties exceeded the value of the real and personal property owned by the parties. All of the income producing property and all of the debt were awarded to H.F. Gierke. Judith Gierke received personal property none of which was income producing.

[¶44] Based on these findings .the trial court correctly concluded Judith Gierke’s “health problems and inability to maintain employment shows a need for rehabilitative spousal support” and Judith Gierke’s “disproportionate share of the property and income producing ability indicate that she is an economically disadvantaged spouse and will require spousal support.” See Van Klootwyk, 1997 ND 88, 563 N.W.2d 377. The majority opinion’s analysis of the trial court’s decision ends there, however.

[¶ 45] The trial court’s judgment states Judith Gierke is to receive spousal support as follows:

The Defendant shall pay to Plaintiff as spousal support the sum of $2,500 per month for a period of four years beginning May 1, 1995. Thereafter the defendant shall pay Plaintiff the sum of $1,500 per month until she reaches the age of 65. Beginning the first month after Plaintiffs 65th birthday, Defendant shall pay $1,000 per month until Plaintiffs death.

Although we have held a trial court need not make specific findings as to each Ruff-Fischer guideline, it must explain its rationale for its determination. Wiege v. Wiege, 518 NW.2d 708, 710 (N.D.1994). With regard to the trial court’s reduction of Judith Gierke’s spousal support after four years and again at age 65, there is no explanation. The only possible explanation for giving Judith Gierke $2,500 only for the first four years is in the letter memorandum of the court dated March 28, 1995, which is not incorporated in the findings of fact, conclusions of law, or judgment, Therein the trial court indicates: “I have given the Plaintiff a substantial sum for the first 5 years and that will give her an opportunity to rehabilitate herself mentally and physieally.” He also notes Judith Gierke will “have the opportunity to establish some sort of retirement program through her nursing career in the next 13 or 14 years.” The basis, however, on which the trial court relies to award spousal support in the first place does not change in four years nor does it change at age 65. There are no findings that on either date the substantial disparity in earning ability will change, or that the financial circumstances of the parties will change. On the basis of this record, any change would be pure speculation on the part of the trial court. The trial court obviously was of the belief at the time of trial that H.F. Gierke was able to financially pay support of $2,500 a month beginning May 1, 1995, plus restructure his debt. There is not any evidence Judith Gierke can “rehabilitate” herself in four to five years or earn a meaningful *532retirement, if any, at this late time in her work life.

[¶ 46] In addition, this Court has recognized after a marriage of substantial duration, without sufficient property and without a comparable earning ability sufficient to maintain the standard of living enjoyed during the marriage, the disadvantaged spouse is entitled to spousal support which provides “an equitable sharing of the overall reduction in the parties’ separate standards of living.” Weir v. Weir, 374 N.W.2d 858, 864 (N.D. 1985) (citing O’Kelly, Three Concepts of Alimony in North Dakota, 1 U.N.D. Faculty Journal 69 (1982)); see Gronland v. Gronland, 527 N.W.2d 250, 258 (N.D.1995). Judith Gierke will remain disadvantaged and incapable of independently sustaining her standard of living in four years and at age 65. Even if we were to speculate her income will increase, then so must we speculate H.F. Gierke’s will increase. Also if we were to speculate she will earn retirement funds, so will H.F. Gierke earn retirement funds. The substantial disparity in financial condition between the two of them will not change. Furthermore, if there is a material change in circumstances on Judith Gierke’s part or H.F. Gierke’s part, the trial court can consider it on a motion for modification of spousal support. Gronland, 527 N.W.2d at 254.

[¶ 47] Without some explanation of its rationale, the trial court’s finding reducing the spousal support in the future is not supported by the evidence, and I am left with a firm conviction a mistake has been made. I would reverse and remand for amendment of paragraph V of the judgment setting spousal support at $2,500 a month until Plaintiffs death.

[¶48] On appeal Judith Gierke asks this Court to conclude the trial court abused its discretion when it failed to grant her security for her spousal support. A court abuses its discretion where it acts “in an arbitrary, unreasonable, or unconscionable manner.” Usry v. Theusch, 521 N.W.2d 918, 919 (N.D. 1994). The majority concludes the trial court did not abuse its discretion in refusing to order H.F. Gierke to purchase life insurance as security for his spousal support obligation. The majority correctly points out the district court has the discretion to order security for spousal support. The Minnesota Supreme Court has provided several factors to consider in establishing the “exceptional circumstances” justifying such a security requirement. Walker v. Walker, 553 N.W.2d 90, 96 (Minn.Ct.App.1996) (citing Arundel v. Arundel, 281 N.W.2d 663, 667 (Minn.1979)). These factors include “an award of permanent maintenance, the long duration of a marriage, and the recipient spouse’s age and lack of marketable skills” and an award of income producing property. See id.; Rosenberg v. Rosenberg, 379 N.W.2d 580, 586 (Minn.Ct.App.1985).

[¶49] In this case, given Judith Gierke’s weak employment history, her age, her health problems, the long-term 28-year marriage, and the award of permanent spousal support, the trial court should have secured the award with life insurance. This is especially true, because the testimony of H.F. Gierke revealed a $600,000 life insurance policy was already in existence on his life and a second policy, the amount of which never came out in testimony, was also in existence. The trial court could have merely required H.F. Gierke to name Judith Gierke as a beneficiary on one of his existing life insurance policies.

[¶ 50] The majority concludes that because Judith Gierke is awarded permanent spousal support until her death she can proceed against H.F. Gierke’s estate should he predecease her. What the majority fails to recognize is that there is no “estate” as of the date of the trial and, in fact, there is a negative estate and no evidence of any change in the near future. In the event of H.F. Gierke’s death, Judith Gierke’s financial situation clearly warrants the security she requests.

[¶51] Further, there is no indication the trial court ever assessed whether the circumstances of this case justified an award of security for its award of spousal support. I would reverse and remand to the trial court to amend the judgment and award security for the permanent spousal support. It is justified in this ease where there is a negative marital estate, the spouse is awarded no income-producing property, there is a long-term marriage, and a disadvantaged spouse *533who has health problems and is entering the work market at age 50. I would also remand for the trial court to determine whether an existing policy of life insurance should be utilized or whether a separate policy should be provided.

[¶ 52] For these reasons, I respectfully dissent.

[¶ 53] THOMAS J. SCHNEIDER, District Judge, concurs.