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Paulson v. Paulson

June 10, 2010


Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

The opinion of the court was delivered by: Maring, Justice.



[1] Cheryl Paulson appeals from a divorce judgment dividing the marital property and failing to award her spousal support. We affirm the marital property division, but conclude the trial court clearly erred in its spousal support determination. We reverse and remand for further proceedings consistent with this opinion.


[2] Mark Paulson and Cheryl Paulson were married in 1994. The couple did not have any children together, however, both parties have children who have reached the age of majority. Mark Paulson filed for divorce in June 2008. He requested an equitable distribution of the marital property. Cheryl Paulson filed an answer and counterclaim for divorce requesting equitable distribution of the marital property, and permanent and rehabilitative spousal support. At trial, the parties testified as to their financial status, Mark Paulsons relationship with a female friend, and the value of a trust, guns, vehicles, tools, and other miscellaneous personal items.

[3] Mark Paulson testified the couple separated in June 2006 due to conflicts regarding their financial situation and telephone calls he had made to a female friend of his. He had a joint checking account with the same woman after he and Cheryl Paulson separated. Mark Paulson testified he had cash withdrawals from his bank account that he believed he spent on the road during the time he and Cheryl Paulson were still married. Mark Paulson testified he did not support his friend, but he did assist and help her financially, and she paid him back.

[4] Mark Paulson testified his father set up a trust for him. The Mark Paulson Trust provides for Mark Paulsons children until they reach the age of twenty-three. However, the trust assets may be distributed to Mark Paulson or added to the principal after Mark Paulsons children turn twenty-three, at the discretion of the trustees. He testified his youngest child has turned twenty-three. The trust was established under his fathers will before the couples marriage. Mark Paulson testified that his father passed away at approximately the time the couple was married. Mark Paulson testified that his two brothers and two bank employees are the trustees.

[5] Cheryl Paulson testified that she has moved twice, to Devils Lake and Bismarck, since the couples separation. She testified she asked Mark Paulson for financial assistance twice since the separation, but he refused. He testified he does not recall any requests for assistance. Cheryl Paulson testified she was in good health.

[6] The trial court issued its findings of fact, conclusions of law, and order for judgment. The trial court found:

In dividing the marital estate and in deciding spousal support under the Ruff-Fischer guidelines; Ruff v. Ruff, 52 N.W.2d 107 (N.D. 1952); Fischer v. Fischer, 139 N.W.2d 845 (N.D. 1966), the trial court in exercising its discretion is to consider:

1. The respective ages of the parties

Mark is fifty-two years old and Cheryl is forty-nine.

2. Their earning ability

Mark has a high school degree. He has most recently worked as a truck driver based in Cando, earning approximately $53,000 per year. His employment and income are likely to continue. Cheryl has a high school degree and completed two years of college, without earning a degree. She worked at several jobs during the marriage. At the time of trial, she was employed at Missouri Valley Petroleum in Bismarck earning approximately $23,000 per year. Cheryl intends to continue her employment.

3. The duration of the marriage

The parties were married in 1994, but began living together in 1989. They separated approximately three years before trial.

4. The conduct of each during the marriage

Mark testified that the reason he left the marriage was because of fighting and arguing over money. He also stated that Cheryl questioned the number of telephone calls he made to his female friend, []. Mark does have a relationship with [her] that began during the marriage. He paid some of her bills and had a joint checking account upon which both he and [his friend] could draw checks. Marks explanation for the checking account was that he set it up as a joint account so that [she] could pay Marks bills for him when he was on the road working. Mark denies a sexual relationship with [her]. However, [she] did answer the door at Marks residence wearing a nightie or pajamas. While there is no proof that Mark has had a sexual relationship with [her], there is evidence that the relationship is one of more than just friends.

Mark did provide Cheryl with assistance in raising Cheryls daughter during the marriage.

5. Station in life

The parties acquired very little personal property during the marriage, and no real property. They do not have a significant amount of debt.

6. Circumstances and necessities of each

Neither party has any unusual ...

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