Marschner v. Marschner

SANDSTROM, Justice,

dissenting.

[¶ 26] On appeal, the question is not whether the district court could have awarded spousal support to Carol Mar-schner, but' whether the district court clearly erred by not awarding support. Van Klootwyk v. Van Klootwyk, 1997 ND 88, ¶ 32, 563 N.W.2d 377 (Sandstrom, J., dissenting). Because the district court’s findings of no disadvantage and no need for spousal support are supported by the record, I would affirm. Because the majority substitutes its judgment for that of the district court, I respectfully dissent.

A

[¶ 27] Our cases have uniformly held a “spouse must be disadvantaged as a result of the divorce for rehabilitation or maintenance to be appropriate.” Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D.1994) (citing Weir v. Weir, 374 N.W.2d 858, 862 (N.D.1985)). The majority, at ¶ 8, recognizes the district court found neither party was disadvantaged by the divorce. At ¶ 12, however, the majority says the court’s finding of no disadvantage is clearly erroneous because:

that finding conflicts with the record which clearly reflects both Carol Mar-schner and Richard Marschner devoted a large portion of their lives to the fami*346ly’s farm. Carol Marschner will no longer be able to work the family farm in order to receive a return from that investment.... It is apparent that as a result of Carol Marschner’s responsibilities as a homemaker and helper to Richard Marschner in the family operation she is a disadvantaged spouse who has “ ‘forgone opportunities or lost advantages as a consequence of the marriage and who has contributed during the marriage to the supporting spouse’s increased earning capacity.’ ”

(Emphasis added). The majority substitutes the phrase “[i]t is apparent” for evidence; it substitutes stereotypes for facts in the record.

[¶ 28] The majority ignores Carol Mar-schner’s award of nearly $84,000 in cash plus $50,000 with interest over the next ten years. The evidence does not support the conclusion that Carol Marschner has forgone any opportunity or lost any advantage as a result of her marriage. Further, the evidence does not establish Richard Marschner has an increased earning capacity. Rather, he has an asset that may or may not produce income, while Carol Marschner has cash.

[¶29] Although Carol Marschner can no longer derive income from the farm, it is illogical to conclude that the $134,000 she will receive cannot generate income. The majority’s conclusion presupposes that Richard Marschner has an increased earning capacity, but the record does not support this supposition. At ¶ 15, the majority recognizes Richard Marschner may be unable to earn a living. At ¶ 13, the majority also recognizes that the liquid nature and income-producing nature of property are relevant to a spousal support determination. I agree with the district court, the farm may be an income-producing asset. I also agree Carol Marschner’s cash settlement may be an income-producing asset. But I do not believe the majority should embrace one finding while ignoring the other.

[¶ 30] “We have held, if our Court can understand the factual basis upon which the trial court reached its conclusions from its findings of fact, we will not remand.” Young v. Young, 1998 ND 83, ¶ 14, 578 N.W.2d 111. “One need only examine the legal references listing our cases to be aware we have repeatedly said the trial court’s findings must be adequate to afford a clear understanding of the trial court’s decision but if the Supreme Court understands from the findings the factual basis for the trial court’s determination, the findings are adequately specific.” Id. at 1Í25 (VandeWalle, C.J., dissenting) (citations omitted). The district court’s findings were “adequate,” although they “might have been clearer.” Id. at ¶ 26.

[¶ 31] The conclusion Carol Marschner was disadvantaged seems logical if one presupposes Richard Marschner has a greater earning ability. But the nearly equal property division and the findings of the district court adequately demonstrate that both parties have a nearly equal earning ability, “so neither is unfairly disadvantaged by the divorce.” Id. at ¶ 30.

B

[¶ 32] Although the district court might have better articulated both parties’ needs and Richard Marschner’s ability to pay, the record demonstrates the district court considered these factors in reaching its conclusion. Even if Carol Marschner was disadvantaged, the majority does not address the needs of both parties and Richard Marschner’s ability to pay. See Moilan v. Moilan, 1999 ND 103, ¶ 11, 598 N.W.2d 81 (citing Kautzman v. Kautzman, 1998 ND 192, ¶ 19, 585 N.W.2d 561) (indicating trial courts must consider the needs of both parties and the ability of the supporting spouse to pay support). Needs and ability to pay are analyzed using the Ruff Fischer guidelines — an analysis conspicuously absent from the majority opinion. See id. at ¶ 10 (to determine spousal support, district courts must consider the Ruff Fischer guidelines).

*347[¶ 33] Discussing the physical condition of the parties, the district court stated, “Both parties appeared to be fit for their respective ages; the Defendant has recovered from her aneurysm, although she complains of some arthritis and carpal tunnel syndrome; however, these do not warrant any special consideration.” The district court further stated, “Neither party is claiming any special circumstance or needs other than what has been addressed in different areas of this opinion.”

[¶ 34] At trial, when asked whether she had lasting effects from her aneurysm, Carol Marschner replied, “I sure don’t think so.” She proceeded to explain she feels even better without “all the pressures that was [sic] put on me out there at the farm.” She did, however, testify she suffers from asthma, rheumatoid arthritis, blood pressure ailments, and a heart condition. The district court discounted these claimed ailments, stating they “do not warrant any special consideration.”

[¶ 35] The district court concluded Carol Marschner acquired bookkeeping and typing skills during the marriage, which would help her obtain employment. Carol Marschner testified she has sold seed grain and has been employed as a bus driver.

[¶ 36] Richard Marschner testified regarding his diminished income and corresponding ability to pay support. He testified his income from selling milk had dropped by a third, he was receiving over two dollars less per bushel for his grain, and he had been able to plant only one-third of his crop due to heavy moisture. The district court specifically cited the depressed farm economy and lack of profit on the family farm in equitably distributing the marital property.

[¶ 37] The record demonstrates the district court properly weighed the parties’ needs and Richard Marschner’s ability to pay. Although Carol Marschner was unemployed at the time of trial and may have had to temporarily and minimally deplete her property settlement in order to live, the district court’s findings establish Richard Marschner’s earning advantage, if any, would be ephemeral. It is logical to also presume Richard Marschner will have to deplete his property settlement. Both parties are reaching their advanced years, and, unfortunately, because of their limited marital assets, both will likely have to work after the divorce.

[¶ 38] Our equitable distribution cases encourage trial courts to consider factors such as the income-producing nature or the liquid nature of an asset. Wetzel v. Wetzel, 1999 ND 29, ¶ 20, 589 N.W.2d 889 (citing Wiege, 518 N.W.2d at 711). Here, in light of the district court’s thorough review of the Ruff Fischer guidelines, the lack of evidence establishing Carol Mar-schner’s needs, and the evidence demonstrating Richard Marschner’s needs and ability to pay, I am not left with a firm and abiding conviction a mistake has been made.

C

[¶ 39] Whether the district court could have awarded spousal support to Carol Marschner is not at issue. Our query is whether the district court clearly erred by not awarding spousal support. Because the district court’s findings are supported by the record, I would affirm. Because the majority has substituted its judgment for that of the district court, I respectfully dissent.

[¶ 40] DALE V. SANDSTROM