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Gustafson v. Gustafson

December 18, 2008

SANDRA HELEN GUSTAFSON, PLAINTIFF, APPELLEE AND CROSS-APPELLANT
v.
DONALD LESLIE GUSTAFSON, DEFENDANT, APPELLANT AND CROSS-APPELLEE



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

The opinion of the court was delivered by: Sandstrom, Justice

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

[¶1] Donald Gustafson appeals a district court divorce judgment awarding Sandra Gustafson $300 monthly permanent spousal support. Sandra Gustafson cross-appeals, alleging the district court erred in valuing the marital residence below the parties' stipulated value and in failing to award her attorney's fees. We affirm the district court's valuation of the parties' Fargo house and its refusal to award attorney's fees to Sandra Gustafson, but reverse the district court's award of spousal support and remand for further proceedings.

I.

[¶2] Donald and Sandra Gustafson were married in 1964. They have three adult children. Sandra Gustafson sued for divorce in March 2007, and the case was tried in December 2007. In January 2008, the district court issued its findings of fact, conclusions of law, and order for judgment. Sandra Gustafson moved for amended findings on the issue of valuation of the parties' Fargo house, which the district court denied, entering judgment in March 2008.

[¶3] The district court awarded Sandra Gustafson permanent spousal support of $300 per month and made an equal division of the parties' assets. Donald Gustafson received a net property award of $275,397, which included $126,909 in a retirement savings and investment plan, the balance of $14,715 in the parties' joint savings account, $10,036 in household goods and vehicles, the parties' Fargo house, valued by the court at a fair market value of $97,300, and a rental property in Rolla, North Dakota, valued at $26,437. Both parties testified to significant problems with both properties, and Donald Gustafson testified that the cost for the necessary repairs for the Fargo house would be between $20,000 and $30,000. Sandra Gustafson was awarded net property of $275,397, which included $269,887 in several retirement and pension assets and $5,510 in household goods and one vehicle. At trial, Sandra Gustafson testified that she withdrew $15,000 from the parties' joint savings account in connection with her moving out of the marital residence, and that she used some of the money to pay her attorney's fees.

[¶4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II.

[¶5] Donald Gustafson argues the district court erred in awarding Sandra Gustafson spousal support.

[¶6] In a divorce case, the district court "may require one party to pay spousal support to the other party for any period of time." N.D.C.C. § 14-05-24.1. The district court's spousal support decisions are findings of fact that will be set aside only if they are clearly erroneous. Christian v. Christian, 2007 ND 196, ¶ 7, 742 N.W.2d 819. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, no evidence supports it, or, on the basis of the entire record, we are left with a definite and clear conviction a mistake has been made. Id. A district court may award permanent spousal support "when the economically disadvantaged spouse cannot be equitably rehabilitated to make up for the opportunities and development she lost during the course of the marriage." Wagner v. Wagner, 2007 ND 33, ¶ 8, 728 N.W.2d 318 (citation omitted). The district court must consider all the relevant factors under the Ruff-Fischer guidelines in determining spousal support. Christian, at ¶ 8; Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D. 1966). The Ruff-Fischer guidelines require the consideration of:

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.

Christian, at ¶ 8. The supporting spouse's needs and ability to pay as well as the receiving spouse's income and needs must be considered by the district court in deciding spousal support. McDowell v. McDowell, 2001 ND 176, ¶ 13, 635 N.W.2d 139. While a district court must consider a party's net worth and not solely the party's earned income in determining a party's ability to pay support, id., it "should make a support determination consonant with the property distribution as the illiquidity or the lack of income producing capacity of property may work a disadvantage to one spouse." Staley v. Staley, 2004 ND 195, ¶ 14, 688 N.W.2d 182 (citation omitted). "Property division and spousal support are interrelated and intertwined and often must be considered together." Kostelecky v. Kostelecky, 2006 ND 120, ¶ 14, 714 N.W.2d 845.

[¶7] The district court's fact findings under the Ruff-Fischer guidelines do not favor a spousal support award for Sandra Gustafson. At the time of trial, Donald Gustafson was 67 years old and had been retired since 1990; Sandra Gustafson was 64 years old and had been employed at Cardinal Muench Seminary since 2000. The district court found Donald Gustafson's earning ability to be $1,200 per month in the form of social security benefits, and his monthly expenses roughly $1,200; Sandra Gustafson's earning ability was found to be $23,400 per year from her current employment, and her monthly expenses $2,429. The district court found that while Sandra Gustafson is in relatively good health, suffering from high blood pressure for which she takes medication, Donald Gustafson is in very poor health, having had coronary artery disease, a prior myocardial infarction, and bypass surgery. With respect to income-producing property, the district court found that the Rolla rental property and the retirement accounts are generating income. Donald Gustafson was awarded the Rolla house, which the parties testified needs repairs and has some title problems and no heat, and Donald Gustafson presented evidence showing the house has been rented out at a loss. Sandra Gustafson, on the other hand, was awarded the majority of the retirement and pension accounts. Finally, the district court noted Donald Gustafson's ability to pay a significant amount of spousal support is questionable, yet it awarded Sandra Gustafson 25 percent of Donald Gustafson's $1,200 monthly income. We conclude, in light of the district court's findings under the Ruff-Fischer guidelines, awarding Sandra Gustafson permanent spousal support of $300 per month was clearly erroneous.

[ΒΆ8] Donald Gustafson has requested reimbursement for the amount of spousal support he has paid since entry of judgment in March 2008 in the event we reverse the award of spousal support. Sandra Gustafson opposes restitution, arguing Donald Gustafson failed to ...


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