Wagner v. Wagner

MARING, Justice,

dissenting.

[¶ 16] I respectfully dissent. I believe the failure of the trial court to award permanent spousal support is clearly erroneous. I am of the opinion Marilee Wagner should have received permanent spousal support in addition to rehabilitative spousal support, and I would reverse and remand to the trial court for an appropriate award of permanent spousal support.

I

[¶ 17] The trial court properly awarded Marilee Wagner rehabilitative spousal support. Rehabilitative spousal support is appropriate for Marilee Wagner because her primary role during the marriage was that of a homemaker, and she has not been in the workforce for over twenty years. Therefore, she needs to pursue obtaining work skills and ultimately employment. Rehabilitative spousal support “is appropriate when it is possible to restore an economically disadvantaged spouse to independent economic status, or to equalize the burden of divorce by increasing the disadvantaged spouse’s earning capacity.” Riehl v. Riehl, 1999 ND 107, ¶ 12, 595 N.W.2d 10 (citations omitted). One approach to awarding spousal support is the minimalist doctrine, which is meant to educate and retrain the recipient to minimal self-sufficiency. Van Klootwyk v. Van Klootwyk, 1997 ND 88, ¶ 15, 563 N.W.2d 377. This Court has rejected the minimalist doctrine in favor of an equitable approach, which attempts “to enable the disadvantaged spouse to obtain ‘adequate’ self-support after considering the standard of living established during the marriage, the duration of the marriage, the parties’ earning capacities, the value of the property and other Rujf-Fischer factors.” Id.

[¶ 18] In Riehl, the husband argued that five years of rehabilitative spousal support was sufficient to adequately rehabilitate his wife because after five years, his wife would be educated, able to support *324herself, and able to meet her needs. 1999 ND 107, ¶ 15, 563 N.W.2d 377. This Court rejected that argument and reversed and remanded to the trial court for consideration of a longer period of spousal support factoring in the wife’s job-entry process, the parties’ disparate earning capabilities and standard of living, and the husband’s ability to pay. Id. at ¶ 20. In the present case, the trial court awarded Marilee Wagner rehabilitative spousal support of $5,000 a month for five years. This award of rehabilitative spousal support does not aim “to mitigate marital disadvantage caused by the impact at divorce of an economic role assumed during marriage.” Id. at ¶ 15. There is no evidence to support the trial court’s finding Marilee Wagner can “adequately” support herself in five years.

[¶ 19] In five years, Marilee Wagner will be fifty-four years old. She has received $132,255 in a money market account and $30,000 in bonds, but these will not yield significant interest income. Additionally, this Court has said that “a spouse is not required to deplete a property distribution in order to live.” Hagel v. Hagel, 2006 ND 181, ¶ 14, 721 N.W.2d 1. Marilee Wagner’s home is not an income-producing asset, and the only other assets awarded to her were part of a retirement account, vehicles, and household goods. During the next five years, James Wagner will continue to earn between $200,000 and $340,000 per year. Marilee Wagner has a psychology degree, which she obtained twenty-seven years ago. She will never earn more than a small fraction of what James Wagner earns as a vascular surgeon on a yearly basis. I believe the period of spousal support in this case does not adequately address the burdens of the divorce. See Riehl, at ¶ 17. The huge disparity in income between the parties makes rehabilitative spousal support alone inadequate in this case. The trial court in this case should consider whether, in addition to rehabilitative support, permanent spousal support is also necessary.

II

[¶ 20] In Hagel, we explained: “Section 14-05-24.1, N.D.C.C., provides, ‘taking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time.’ ” 2006 ND 181, ¶ 11, 721 N.W.2d 1 (quoting Ulsaker v. White, 2006 ND 133, ¶20, 717 N.W.2d 567). Permanent spousal support “is generally appropriate when the disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities she lost in the course of the marriage.” Riehl, 1999 ND 107, 1118, 595 N.W.2d 10; see Kautzman v. Kautzman, 1998 ND 192, ¶¶ 19-20, 585 N.W.2d 561 (holding permanent spousal support was appropriate when the wife’s earning capacity would never approach the husband’s and the parties enjoyed a “very comfortable standard of living”); Donarski v. Donarski 1998 ND 128, ¶8, 581 N.W.2d 130 (holding a wife’s “limited marketable job skills” and the “substantial disparity in income between the parties” justified an award of permanent spousal support). “Even when the disadvantaged spouse is capable of rehabilitation we have recognized permanent spousal support may be appropriate to equitably share the overall reduction in the parties’ separate standard of living.” Riehl, at ¶ 18 (citing Weir v. Weir, 374 N.W.2d 858, 864 (N.D.1985) (holding permanent support was appropriate because the disadvantaged spouse was likely to have a much lower income-producing capacity than her spouse, which earning capacity she helped obtain)). I believe the trial court’s failure to award Marilee Wagner permanent spousal support was clearly erroneous, because the facts of this case present a classic case for permanent spousal support.

*325[¶ 21] A proper application of the Ruff-Fischer guidelines mandates permanent spousal support in this case. Ruff-Fischer factors include: the parties’ ages, their earning abilities, the duration of the marriage, their stations in life, the circumstances and necessities of the parties, and their financial situations as shown by property ownership, its value at the time, and its income-producing capacity. Staley v. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182. Marilee Wagner was forty-eight years old at the time of the divorce. The parties had been married for twenty-six years. Marilee Wagner had aspirations of becoming a medical doctor, but in deference to her husband’s desire to become a medical doctor, she instead obtained a degree in psychology. Due to the parties’ choice to start a family, Marilee Wagner was unable to complete her Ph.D. in psychology. Marilee Wagner stayed at home with the parties’ children for over twenty years. It is highly unlikely Marilee Wagner will obtain employment that will close the huge disparity in earning capacity between her and James Wagner. Marilee Wagner’s role at home during the marriage greatly contributed to James Wagner’s successful career as a vascular surgeon. This career led to a high standard of living for the parties. Other than any employment Mar-ilee Wagner obtains, the only income she will have will be minimal interest income from her liquid assets.

[¶ 22] Permanent spousal support may be awarded where the marriage has been of long duration and the dependent spouse is of such an age that adequate rehabilitation is unlikely. Sommer v. Sommer, 2001 ND 191, ¶¶ 14-15, 636 N.W.2d 423 (holding permanent spousal support was appropriate because of the parties’ long marriage, the wife’s limited ability to work full time, and the vast disparity in income and earning potential between the parties). Adequate rehabilitation for Marilee Wagner, at forty-nine years old, is highly unlikely considering her age, that she has been out of the job market for over twenty years, and the specialized nature of her knowledge.

[¶ 23] “[W]hen there is substantial disparity between the spouses’ incomes that cannot be readily adjusted by property division or rehabilitative support, it may be appropriate for the court to award indefinite permanent support to maintain the disadvantaged spouse.” Fox v. Fox, 1999 ND 68, ¶ 21, 592 N.W.2d 541. “Permanent spousal is ordered to maintain a somewhat comparable standard of living for a spouse who is incapable of adequate rehabilitation.” Kautzman, 1998 ND 192, ¶ 19, 585 N.W.2d 561 (citations omitted). The large disparity in earning capabilities between the parties, Marilee Wagner’s age, lack of work history, minimal income-producing assets, and past standard of living all mandate an award of permanent spousal support.

Ill

[¶ 24] As we explained in Van Klo-otwyk, any person who attempts to begin a career at Marilee Wagner’s stage in life, after deferring meaningful work and education for over twenty years “in order to support her husband’s pursuit of his own career, a career the fruits of which she will no longer share, is presumptively disadvantaged by her divorce.” See Van Klootwyk, 1997 ND 88, ¶ 26, 563 N.W.2d 377 (Neumann, J., concurring specially). I would reverse and remand for the trial court to set an appropriate award of permanent spousal support based on the Ruff-Fischer guidelines.

[¶ 25] BENNY A. GRAFF, S.J., concurs.