Wheeler v. Wheeler

MESCHKE, Justice,

concurring and dissenting.

I agree with the majority opinion that the trial court had jurisdiction to modify spousal support. However, I disagree with the majority’s conclusion that the trial court’s decision “contains only cryptic, conclusory statements about material changes in circumstances .... ” Because I believe the findings are both satisfactory and supported by the evidence, I would affirm. Therefore, I respectfully dissent.

The findings seem clear to me:

Now, [Bert] has submitted an additional affidavit and supporting documents. Since [Gerridee] did not submit any opposing affidavits, nor does she dispute the information contained therein, the Court adopts the factual statements in [Bert’s] affidavit as its findings of fact. As can be seen from this affidavit, [Bert’s] only source of income is his Social Security payment of $1,217 per month. Whereas, [Gerridee’s] adjusted gross income for 1993 was $57,-841. Also, [Bert’s] health has substantially deteriorated.
Therefore, the Court concludes there has been a material change in circumstances which would justify the granting of this motion and these changes were not contemplated at the time of the previous modification.

(emphasis added). The trial court entered an order effective April 1, 1995, to eliminate spousal support.

The material statements in Bert’s undisputed affidavit give facts essential for the change:

3. I based my motion upon the fact that Geraldine (Gerridee) is fully rehabilitated, and that her current standard of living exceeds that experienced during our marriage. Further, that she is gainfully employed and fully capable of self-support. I further noted to the court that I am now retired from the full-time practice of law since September 1,1992, and that my yearly income has decreased substantially.... 4.... I am no longer financially able to provide for further support'for Gerridee, and Gerridee, although she may not agree, does not “need” the support. She is currently enjoying a lifestyle beyond that we were able to enjoy during our marriage. I am attaching for the court’s consideration a copy of Gerridee’s 1993 tax return which shows adjusted gross income in the amount of $57,841.00. I am also attaching a copy of my spouse and my 1993 tax return which shows adjusted gross income for the two of us at $50,483.00. The adjusted gross income of my wife and me of $50,483 was mostly income of my wife, who has unemployed children of her own requiring her financial assistance, and her income, I believe, is not subject to this court’s jurisdiction in this action.
My income was limited to the $12,000 from the firm, my Social Security benefits, and the $6,350 from the IRA that was cashed in on advice of my accountant. My income is now limited to my Social Security payment of $1,217.00 per month.
When I retired, I entered an oral agreement with the firm to surrender my stock in return for employment by the firm as a consultant for $1,000 per month. Each of my clients was turned over to a firm member as lead counsel, as well as every open file.
In March or April, 1994, the members of the firm initiated dissolution, which was completed in July 1994. One of the first acts in this direction was termination of my employment and pay, primarily because it was obvious that the dissolution was going to be costly and no succeeding group wanted to accept the burden of my retirement agreement. My income of $12,000 reflected on the 1993 tax return has ceased. I am not a member of the Wheeler. Wolf law firm. I am “of counsel”. I am not covered by the firm’s malpractice insur-*33anee and, therefore, I am no longer permitted to sign any pleadings. I do get small amounts on occasion from law business that I refer to a member of the Wheeler Wolf firm. I have offered to pay these sums to Gerridee, but she has sought instead to require me to pay the full $500 per month. I simply cannot afford it. I am dependent upon my wife for food, housing and most of my clothing.
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6. In November 1993,1 was diagnosed as suffering from atherosclerosis. I underwent angioplasty and atheroscopy in Minneapolis. In June 1994, my arteries were clogged again, and the procedure was repeated. A regimen of diet, exercise and stress avoidance seems to have improved the outlook for the near future, but a return to the active practice of law is contrary to the advice of my cardiologist.
[Gerridee], on the other hand, is in good health and continues to be employed.

In my opinion, these facts and findings justify termination of spousal support in this case.

There is a very real difference between a “foreseeable” change and a “foreseen” or “contemplated” one. I think it is too much to expect someone to plan ahead for the full effects of any possible health problem or for unusual events, like a law-firm dissolution. The extent of Bert’s income decline from unusual events after his expected retirement was not clearly contemplated.

From the combined effects of the unexpected events of ill health and law-firm changes, this obligor’s financial capacity substantially declined. The correlated change for the obligee, whose financial capacity has increased dramatically since the divorce, creates a substantial disparity between the earning capacities of these former spouses. Bert’s individual income has dwindled to less than one-third of Gerridee’s, with little prospect for improvement. Even without the decreed spousal support, their relative living standards are no longer disparate. Modification is justified because Bert’s setbacks make it inequitable to continue to require him to contribute to Gerridee’s higher standard of living.

Material changes in the financial capacities of former spouses justify modification of permanent spousal support. Mahoney v. Mahoney, 538 N.W.2d 189, 191-92 (N.D.1995). Modification of spousal support is a finding of fact that will not be reversed unless clearly erroneous. Id. I am not convinced a mistake was made.

Because I would affirm, I respectfully dissent.

NEUMANN, J., concurs.