Christianson v. Christianson

MARING, Justice,

concurring in part and dissenting in part.

[¶ 32] I respectfully dissent from that part of the majority opinion holding that no authority exists allowing imputation of income for the purpose of calculating spousal support and that part holding equalization of income is inappropriate in this case. I concur in the remaining parts of the opinion, but would affirm the judgment of the trial court.

[¶ 33] Gerald and Cecelia were married 33 years before divorcing and in dispute is the ultimate amount of the trial court’s award of permanent spousal support to Cecelia. Gerald worked as superintendent at Parshall High School for the 1999-2000 school year and earned a total compensation package of $65,000. He voluntarily quit his position at the end of the school *808year in anticipation of a “state job” as a grant administrator. However, the “state job” never materialized and he enrolled at North Dakota State University (“NDSU”) in August of 2000 to pursue a Specialist’s Degree in Educational Leadership, which he obtained in May of 2002.

[¶ 34] During his advanced degree education, Gerald, who was then 56 years of age, began drawing from his teacher’s retirement fund. Gerald testified the salary range for an Education Leader in this area of the country is $50,000 to $90,000. He testified at trial that he had already applied for forty positions region-wide and had not been able to secure one.

[¶ 35] The trial court found that while attending NDSU, Gerald was receiving $692 a month as a Graduate Teaching Assistant, $800 a month as a part-time salesperson at Marshall Fields, and $2,273.86 a month of retirement funds. Gerald testified he was sending Cecelia $1,050 a month. The trial court also found Gerald had voluntarily relinquished his superintendent position and that the decision was not a “truly joint decision” by Gerald and Cecelia. The trial court concluded Gerald’s actions constituted economic fault. Additionally, the trial court determined Gerald spent $22,704.18 of the proceeds from annuities, in part, on costs associated with obtaining his advanced degree from NDSU. Accordingly, marital funds were used by Gerald to obtain his advanced education.

[¶ 36] Cecelia is 58 years old and earns a salary of $24,500 a year as an elementary teacher plus $300 to $350 a month as a part-time worker at the Parshall Cenex Convenience Store. The trial court found that Cecelia supported Gerald’s career advancement to the detriment of her own. They moved nine times to advance Gerald’s career with little or no consideration for Cecelia’s teaching career. Due to the frequent moves, Cecelia could not build her retirement, and what retirement she did have, was invaded on four separate occasions to help pay moving expenses or to pay for Gerald’s advanced education. The trial court concluded that Cecelia is a disadvantaged spouse and is entitled to spousal support, but declined to set the amount until Gerald finished at NDSU and obtained full-time employment and, “in any event (i.e., whether Gerald obtains full-time employment or not) ... no later than October 15, 2002.”

[¶ 37] On October 15, 2002, Cecelia requested that the trial court review the spousal support award and alleged Gerald had a greater ability to pay than he did at the time of trial. On review, the trial court found that Cecelia’s needs have become even more pronounced since the divorce judgment. It also found that “[d]e-spite a concerted and good faith attempt ...,” Gerald has come up empty in his job search, “... at least in the field of school administration.” (Emphasis added.) The trial court further found:

Realistically, Cecelia cannot wait any longer to begin receiving support from Gerald. Recognizing that: 1. Gerald voluntarily gave up a $56,000.00 per year (plus benefits) superintendent’s position at Parshall High School in order to obtain his advanced degree; 2. the salary range for an individual possessing this degree is $50,000.00 to $90,000.00; and, 3. Gerald’s present earnings are significantly less than prevailing amounts earned in the community (of Bismarck, ND) by persons with similar work history and occupational qualifications, Gerald is “underemployed”- and equity dictates that the Court impute annual income of $50,000.00 to Gerald in calculating his spousal support obligation. When this is done, it can readily be seen that there is a substan*809tial disparity between the incomes of Cecelia and Gerald-a disparity which the property division ordered by the Court did not ameliorate and which the Court believes cannot be- readily adjusted by rehabilitative support given Cecelia’s circumstances.

[¶ 38] Our Court has held that the trial courts must consider the Ruff-Fischer guidelines in determining both the amount and duration of spousal support. Sommer v. Sommer, 2001 ND 191, ¶ 9, 636 N.W.2d 423. The factors include:

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.

Id. (citation omitted).

[¶ 39] The trial court in this case very carefully considered all the Ruff-Fischer factors including the needs of each party and the ability of the supporting spouse to pay. The trial court imputed income of $50,000 to Gerald based on Gerald’s testimony that the salary range for an individual with his degree was $50,000 to $90,000 and that Gerald last earned a total compensation package of $65,000.

[¶ 40] The majority opinion states that spousal support awards are to be made in consideration of need and ability to pay, without ever mentioning the Ruff-Fischer guidelines; that there is no authority to impute income; and that even if it were allowed the trial court found Gerald made a good faith attempt to obtain employment. The majority opinion overlooks that the trial court found Gerald had “voluntarily” quit his job and that this act constituted economic fault. The majority opinion also overlooks that the trial court noted Gerald may need to find full-time employment in another field and that he made no attempt to do this. With regard to Gerald’s good faith attempt to find a job, the trial court clearly referenced only Gerald’s attempt to find a school administration job as being made in “good faith.” Implicitly the trial court found Gerald was “voluntarily” underemployed, and after having given him one year to resolve his employment status, the court, imputed income.

[¶ 41] A number of jurisdictions have found that where a party has voluntarily reduced his income, the court may impute income to arrive at an amount for spousal support. See, e.g., Moore v. Moore, 242 Mich.App. 652, 619 N.W.2d 723, 724-25 (2000) (citing Healy v. Healy, 175 Mich. App. 187, 437 N.W..2d 355 (1989)) (holding that a court can consider a voluntary reduction of income to determine the proper amount of alimony, and that if a court finds a party voluntarily reduced the party’s income, the court may impute additional income to arrive at an appropriate alimony award); Weller v. Weller, 2002 Ohio 7125, ¶ 47, 2002 WL 31862681, *8 (Ohio Ct.App.2002) (quoting Motycka v. Motycka, 2001 Ohio 2162, 2001 WL 688886 *14) (holding that a trial court has the discretion to impute income to parties for purposes of spousal support, “even if it is determined that a party has no income”); Cox v. Cox, 877 P.2d 1262, 1267 (Utah Ct.App.1994) (holding that after first determining a spouse is voluntarily unemployed or underemployed, it is appropriate to impute income) (citations omitted); Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77, 78-79 (1988) (holding, in the proper circumstances, a trial court may impute income to a supporting spouse who voluntarily changes employment); Grable v. *810Grable, 307 Ark. 410, 821 S.W.2d 16, 20 (1991) (holding that a trial court may impute income); In re Marriage of Stephenson, 39 Cal.App.4th 71, 46 Cal.Rptr.2d 8, 14 (1995) (holding that if a “supporting spouse elects to retire early and to not seek reasonably remunerative available employment under the circumstances, then the court can properly impute income to that supporting spouse ... ”); Kovar v. Kovar, 648 So.2d 177, 178 (Fla.Dist.Ct. App.1994) (holding that when a supporting spouse voluntarily reduces his income, it is in the trial court’s discretion to impute income); Bronson v. Bronson, 793 So.2d 1109, 1111 (Fla.Dist.Ct.App.2001) (same); In re Marriage of Carrick, 560 N.W.2d 407, 410 (Minn.Ct.App.1997) (holding that a trial court may impute a party’s income to set maintenance, if it first finds that the party was underemployed in bad faith); In re Marriage of Warwick, 438 N.W.2d 673, 677 (Minn.Ct.App.1989) (extending earning capacity determination as an appropriate measure of income from child support to spousal support and concluding the rationale for child support is persuasive for maintenance).

[¶ 42] In the present case, the trial court did not err in imputing income where it found Gerald was voluntarily underemployed; had only attempted a good faith search for employment as a school superintendent and not for other full-time employment; and the imputed amount of income was within the range of Gerald’s testimony as to what he could earn as well as the history of his earnings.

[¶ 43] To the extent that the majority opinion stands for the proposition that equalization of income is never appropriate when setting spousal support, I dissent. We have stated that “[a] valid consideration in awarding spousal support is balancing the burden created by divorce.” Marschner v. Marschner, 2001 ND 4, ¶ 10, 621 N.W.2d 339. We also have stated that “[r]elevant to a spousal support determination is the distribution of marital property, the liquid nature of the property, and the income-producing nature of property.” Id. at ¶ 13. In this case, the parties net marital estate was minimal being only $38,885. Here, the evidence is that the award of $14,000 in the AG Edwards Account had been reduced to $7,000 and would provide little income to Cecilia.

[¶ 44] Cecelia significantly contributed to Gerald’s increased earning ability over a period of 33 years. Cecelia’s earning ability will never approach Gerald’s. Our Court has stated that a valid consideration in an award of spousal support is:

whether there is a need to equitably balance the burdens created by the divorce where the parties cannot maintain the same standard of living apart as they enjoyed together. See Wald v. Wald, 556 N.W.2d 291, 297 (N.D.1996) (“We recognize a court must balance the burden created by a divorce when it is impossible to maintain two households at the pre-divorce standard of living.”); Wiege v. Wiege, 518 N.W.2d 708, 712 (N.D.1994) (“The trial court’s award of permanent support, combined with the rehabilitative support, eqidtably shares the overall reduction in the parties’ separate standards of living and is not clearly erroneous.”) (internal quotation marks omitted); Wahlberg v. Wahlberg, 479 N.W.2d 143, 145 (N.D.1992) (“Continuance of a standard of living is a valid consideration in spousal support determinations, e.g., Bagan v. Bagan, 382 N.W.2d 645 (N.D.1986), as is balancing the burdens created by the separation when it is impossible to maintain two households at the pre-divorce standard, e.g., Weir v. Weir, 374 N.W.2d 858 (N.D. 1985).”).

*811Sommer, 2001 ND 191, ¶ 10, 636 N.W.2d 423 (emphasis added).

[¶ 45] Although, as in property division, equitable does not need to mean equal, equitable can mean equal. In Glan-der v. Glander, 1997 ND 192, ¶¶ 17, 18, 569 N.W.2d 262, our Court upheld an equalization of income between divorcing spouses. We noted that some jurisdictions reject equalization of income while others “have approved indefinite spousal support that resulted in equalizing post-divorce income.” Id. at ¶ 17. Our Court concluded that “[w]hile arbitrary equalization of income between parting spouses would be questionable, we conclude the circumstances here justified it. In determining support, a court must ‘balance the burden created by a divorce when it is impossible to maintain two households at the pre-divorce standard of living.’ ” Id. at ¶ 18 (citations omitted).

[¶ 46] In Riehl v. Riehl, 1999 ND 107, ¶ 17, 595 N.W.2d 10, our Court stated “[w]hile we have not endorsed the ‘equalization of income between divorcing spouses,’ (citation omitted) we conclude the period of spousal support in this case does not adequately address the burdens of the divorce.” We reversed and remanded for the trial court to consider whether permanent spousal support would be equitable to offset the permanent economic disadvantage suffered by the wife in that case. Id. at ¶¶ 19, 20.

[¶ 47] I believe the trial court did not clearly err in equalizing the incomes through an award of spousal support under the facts and circumstances of this case. If Gerald wishes to decrease his spousal support payments upon his retirement, he may bring a motion for modification of the amount at that time. See Som-mer, 2001 ND 191, ¶ 18, 636 N.W.2d 423. [¶ 48] I respectfully dissent and would affirm the judgment of the trial court.

[¶ 49] MARY MUEHLEN MARING