Overland v. Overland

MARING, Justice,

concurring in part and dissenting in part.

[¶ 24] I concur in part II of the majority opinion, which concludes the trial court’s division of marital property was not clearly erroneous. I dissent from the remainder of the opinion. I would affirm the trial court’s award of spousal support because it is not clearly erroneous.

[¶ 25] The trial court recognized that N.D.C.C. § 14-05-24.1 governs. 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. The court may modify its spousal support orders.

The trial court correctly took into consideration the circumstances of the parties by addressing the Ruff-Fischer guidelines. See Sack v. Sack, 2006 ND 57, ¶ 11, 711 N.W.2d 157.

[¶ 26] Although the trial court found Brenda Overland was not disadvantaged by the marriage in the sense that she did not remain out of the work force and did not suffer a loss of her earning capacity, it did find she was financially disadvantaged by her marriage to Kevin Overland. The trial court found that Brenda Overland entered the marriage with $100,000 in the bank, retirement assets, and no debt. After eight years of marriage, she left the marriage with the retirement assets she earned prior to her marriage, her vehicle, household goods, and one-half of the net proceeds from the sale of the parties’ home in the amount of $37,401. Kevin Overland, on the other hand, who entered the marriage with virtually no property, but debt, *73left the marriage with $37,401 of the home proceeds and some personal property. The trial court found that there was no income-producing property beyond the small amount of cash each received from the proceeds of the home sale. The trial court found that this circumstance favored an award of spousal support to Brenda Overland “to offset, to some degree, the financial damage she suffered during this marriage.”

[¶ 27] The trial court further found that Brenda Overland put $23,000 as a down payment on the marital home, paid off Kevin Overland’s boat for $3,000, made a down payment on the camper for $2,000, gave Kevin Overland approximately $2,500 while he was between jobs and “[n]o doubt there was other money given to Kevin during the marriage.” The trial court found Kevin Overland had received approximately $30,000 of Brenda Overland’s premarital savings.

[¶ 28] Brenda Overland was not restored to her pre-marriage condition through the property division. She did not receive from the home sale proceeds the $23,000 down payment she had made. The net proceeds from the sale of the home were split between the parties 50/50. In addition, Kevin Overland received the boat and the camper as personal property.

[¶ 29] The trial court found: “To the extent that Kevin allowed Brenda to deplete her savings for his benefit, he has reduced her ability to support herself out of her premarital property and savings.” The trial court found that Brenda Overland should recover her down payment for the home. The trial court concluded that “[t]he division of property, and considerations of spousal support are intertwined concepts. Hagel v. Hagel, 2006 ND 181, 721 N.W.2d 1.” Therefore, the trial court concluded that “[t]o the extent that the Court can restore Brenda to some pre-marriage condition through spousal support, the Court will attempt to do so.” The trial court awarded Brenda Overland spousal support in the amount of $500 per month, for sixty months or $30,000 over five years. This $30,000 award is the same amount the trial court found Brenda Overland had used from her premarital savings for the down payment on the home and for the benefit of Kevin Overland.

[¶ 30] Perhaps the court could have ordered Kevin Overland to pay this amount of $30,000 from his share of the home sale proceeds. However, ordering spousal support actually benefits Kevin Overland because the payments are tax deductible to him and made over five years. See Ness v. Ness, 467 N.W.2d 716, 718 (N.D.1991); I.R.C. §§ 71 and 215 (2000). The amount Kevin Overland will pay in present value terms is much less than $30,000.

[¶ 31] Also, in the division of the marital estate by the court, the only assets of the parties were the home, personal property, and Brenda Overland’s retirement assets. The parties stipulated to the division of other property and to the exclusion of that property from consideration by the trial court. The trial court accepted the stipulation. The trial court found that Brenda Overland’s retirement assets had been accumulated prior to the marriage. The net difference in value between what Brenda Overland was awarded as property and what Kevin Overland was awarded was $72,980 in favor of Brenda Overland. That sum was represented by Brenda Overland’s premarital retirement assets, which totaled $80,907. Therefore, Brenda Overland did not even receive the total sum of all of her retirement assets she accumulated prior to the marriage in the division of the marital estate. The unequal property division did not remedy the “financial disaster” the trial court found this marriage was for Brenda Overland.

[¶ 32] The trial court found Brenda Overland was economically disadvantaged by *74the marriage. We have never said a trial court could not award spousal support to an economically disadvantaged spouse. We have said [property division and spousal support are interrelated, and the Ruff-Fischer guidelines also apply when determining whether spousal support should be awarded. Heinz v. Heinz, 2001 ND 147, ¶ 11, 632 N.W.2d 443 (citation omitted); Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966). We have affirmed awards of spousal support where the spouse was economically disadvantaged by the marriage by reason of a permanent reduction in survivor’s benefits under railroad retirement and greater contributions toward joint accounts to pay marital expenses. See Ness, 467 N.W.2d at 717-18. Our Court has recognized that while marriage duration is a factor, spousal support is sometimes appropriate even when the duration was short. See Weigel v. Weigel, 2000 ND 16, ¶ 10, 604 N.W.2d 462. The trial court must consider all of the Ruff-Fischer guidelines, but need not specifically address each one in its findings. See DeMers v. DeMers, 2006 ND 142, ¶ 23, 717 N.W.2d 545. We have held a substantial disparity in income is an appropriate consideration in awarding spousal support. Wald v. Wald, 556 N.W.2d 291, 296-97 (N.D.1996). “Questions of property division and spousal support cannot be considered separately or in a vacuum, but must be examined and dealt with together, especially when there is a large difference in earning power between the spouses.” Fox v. Fox, 1999 ND 68, ¶ 22, 592 N.W.2d 541 (emphasis added). The trial court found that Brenda Overland earned $24,000 a year and Kevin Overland earned $64,000 a year. It also found that Brenda Overland’s and Kevin Overland’s employment was likely to continue. The trial court found that the Ruff-Fischer “age of the parties” factor favored neither party. If this finding relates to the significance of the earnings disparity, it is erroneous, but if it relates to the fact that both parties have roughly the same number of years to work to normal retirement age and each can continue to work, it appears correct.

[¶ 33] Another Ruff-Fischer factor a court must consider in awarding spousal support is whether there is an award of income-producing property. Schiff v. Schiff, 2000 ND 113, ¶ 42, 611 N.W.2d 191. The trial court specifically found “[t]here is no income-producing property beyond the small amount of cash that each will receive once the proceeds of the home sale are divided.”

[¶ 34] It is evident that the trial court crafted the spousal support award to address the particular financial disadvantage that Brenda Overland suffered as a result of this marriage. With Kevin Overland earning $64,000 a year, and with $37,401 in the bank, and less debt than Brenda Overland, he has the ability to pay. Brenda Overland, on the other hand, earns $24,000 a year and has only the same $37,401 in the bank. There is no other evidence of income-producing property in this record. The Ruff-Fischer factors support the award of spousal support here. The assets are minimal and not income-producing. There is a substantial disparity in the earning capacity of the parties. Brenda Overland brought substantial property into the marriage and Kevin Overland did not. Brenda Overland has been economically disadvantaged, and the trial court found she should be awarded spousal support in a small amount for a short duration.

[¶ 35] The trial court provides a detailed analysis of the Ruff-Fischer guidelines as they relate to its spousal support decision. The analysis provides the factual basis for the trial court’s decision to award spousal support. “On questions of spousal support, we do not substitute our judgment for that of the trial court.” Corbett *75v. Corbett, 2002 ND 103, ¶ 13, 646 N.W.2d 677.

A trial court’s determination of spousal support, to which it applies the Ruff-Fischer guidelines, is reviewed as a finding of fact and will only be overturned if it is clearly erroneous. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence there is a definite and firm conviction a mistake has been made.

Id. at ¶ 4 (citations omitted).

[¶ 36] In Sack, 2006 ND 57, 711 N.W.2d 157, we directed the focus of spousal support awards back to the Ruff-Fischer guidelines. It is for the trial court to weigh the Ruff-Fischer factors. Id. at ¶ 11. The majority in its opinion is attempting to return to a “minimalist” definition of need for spousal support. Our Court has adopted the equitable doctrine for spousal support, rejecting the minimalist doctrine. Fox v. Fox, 2001 ND 88, ¶ 24, 626 N.W.2d 660. We have recognized that even if a spouse can achieve some measure of self support it does not foreclose an award of spousal support. See Weir v. Weir, 374 N.W.2d 858, 864 (N.D.1985); Van Klootwyk v. Van Klootwyk, 1997 ND 88, ¶ 16, 563 N.W.2d 377; Moilan v. Moilan, 1999 ND 103, ¶¶ 15-16, 598 N.W.2d 81. Therefore, even if Brenda Overland could meet her monthly living expenses on her $24,000 a year income, it does not follow under these circumstances a trial court cannot, in its discretion, award spousal support.

[¶ 37] The majority relies on the fact that the trial court did not award Brenda Overland interim spousal support to conclude Kevin Overland did not have the ability to pay spousal support. The majority incorrectly draws the conclusion that the trial court found Brenda Overland could support herself in the interim and that there was no evidence presented at trial indicating circumstances had changed since the interim order was issued.

[¶ 38] The record indicates that Brenda Overland established monthly living expenses of $3,735 in her financial affidavit, with the mortgage payment, and $2,135 without the mortgage payment at the interim hearing for spousal support. The trial court in its opinion on interim spousal support stated:

While it cannot be seriously disputed that Brenda is [in] need of interim spousal support, the evidence indicates that — after making payment of all the monthly obligations assigned to him— Kevin will not have the ability to pay spousal support to Brenda on an interim basis, and still be able to provide for his own basic needs (i.e., food, clothing, shelter, medical care, etc.). The Court also observes that Brenda has other assets (i.e. a quarter of land located in Hettinger County, North Dakota) which she may be able to draw upon to provide support for herself and her son in the interim. Accordingly, Kevin will not be required to pay any amount of spousal support to Brenda in the interim.
In making this determination, the Court finds that Kevin will be required to satisfy the following obligations from his net monthly income of $3,400.00:
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(Emphasis added.)

The trial court incorporated these findings into its Interim Order dated March 30, *762006, and further found: “If there are any other utility bills associated with maintaining the family home which are not included in this list, the Defendant [Kevin Overland] will be required to pay those as well.” The trial court granted occupation of the family home during the pendency of the divorce action to Brenda Overland. Brenda Overland was ordered to pay her vehicle payment, her auto insurance, her cellular telephone bill, cable television/internet service supplied to the family home, and to provide food and clothing for herself and her son.

[¶ 39] Although the payments made by Kevin Overland during the pendency of the divorce were not labeled spousal support, they were support for Brenda Overland, who lived in the family home during the pendency of the divorce. Contrary to what the majority opinion states, circumstances had changed at the time of the divorce; the home had been sold and the first mortgage, second mortgage, and debt to Citifinancial were paid from the proceeds of the sale. The payments no longer needed to be paid by Kevin Overland. Brenda Overland no longer had a home in which to live without payment of a mortgage or rent and utilities. Brenda Overland therefore had more living expenses and Kevin Overland had fewer expenses at the time of the divorce.

[¶ 40] I am of the opinion that the trial court’s findings of fact, conclusions of law, and award of spousal support to Brenda Overland is supported by the record and law and is not clearly erroneous. I would affirm the judgment.

[If 41] MARY MUEHLEN MAKING