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Schmuck v. Schmuck

Supreme Court of North Dakota

May 26, 2016

Alane A. Schmuck, Plaintiff and Appellant
v.
Richard D. Schmuck, Defendant and Appellee

         Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable M. Richard Geiger, Judge.

          Darcie M. Seboe Einarson, 640 Hill Ave., Grafton, ND 58237, for plaintiff and appellant.

          Joshua Nyberg, 1018 First Ave. N., Fargo, ND 58102-4602, for defendant and appellee.

          OPINION

          MCEVERS, JUSTICE.

         [¶ 1] Alane Schmuck, now known as Alane Dosmann, appeals from a district court's divorce judgment denying her an award of spousal support and declining to retain jurisdiction over spousal support. We affirm.

         I

         [¶ 2] Richard Schmuck and Alane Dosmann were married in August 1987 and have three children together. At the time of the divorce, both parties were forty-eight years old. Schmuck graduated from high school and joined the military where he received extensive vocational training. During the marriage, the parties agreed that Dosmann's employment was chosen to accommodate Schmuck's employment, and to allow her to dedicate her time outside of work to the children and the family home. Dosmann has a high school degree and has primarily worked part time in various positions as a cashier, as a daycare worker, in a nursing home, and, for the last eleven years, as a paraprofessional in the Grafton school district.

         [¶ 3] Dosmann filed for divorce in August 2014. The parties filed a joint stipulation, resolving many of the issues for trial. The parties litigated a number of issues, including the division of property and debts and whether an award of spousal support was appropriate. After a bench trial, the district court adopted the parties' stipulation, with the exception of the stipulated amount of Schmuck's gross income. The district court identified and valued the remaining marital property and debts. In dividing the marital estate and in deciding spousal support under the Ruff-Fischer guidelines, the district court made extensive findings of fact.

         [¶ 4] After weighing the factors, the district court awarded fifty-five percent of the marital estate to Dosmann and denied her an award of spousal support. The district court did not retain jurisdiction over spousal support. Dosmann appeals from the district court's divorce judgment denying her requests for spousal support and to retain jurisdiction over spousal support.

         II

         [¶ 5] Dosmann argues the district court's determination to not award her spousal support was clearly erroneous.

         [¶ 6] "A court may award spousal support under N.D.C.C. § 14-05-24.1." Harvey v. Harvey, 2014 ND 208, ¶ 15, 855 N.W.2d 657. A district court must consider the Ruff-Fischer guidelines in determining whether spousal support is appropriate, including:

[T]he 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.

Id.; see Fischer v. Fischer, 139 N.W.2d 845, 852 (N.D. 1966); Ruff v. Ruff, 78 N.D. 775, 784, 52 N.W.2d 107, 111 (1952). "The court must also consider the needs of the spouse seeking support and the ability of the other spouse to pay." Woodward v. Woodward, 2013 ND 58, ¶ 4, 830 N.W.2d 82. "The court is not required to make specific findings on each factor if we can determine the reasons for the court's decision." Norberg v. Norberg, 2014 ND 90, ¶ 31, 845 N.W.2d 348. "Property distribution and spousal support are interrelated and often must be considered together." Id. Both economic and noneconomic fault are proper factors for the district court to consider. Reineke v. Reineke, 2003 ND 167, ¶ 8, 670 N.W.2d 841. "An award of spousal support is a finding of fact which will not be set aside on appeal unless clearly erroneous." Pearson v. Pearson, 2009 ND 154, ¶ 5, 771 N.W.2d 288 (quotation marks omitted). "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, after a review of the entire record, we are left with a definite and firm conviction a mistake has been made." Krueger v. Krueger, 2008 ND 90, ¶ 7, 748 N.W.2d 671. A

         [¶ 7] Dosmann argues the district court erred in establishing Schmuck's present income for the purposes of awarding spousal support. Dosmann has not appealed the district court's identical income finding for the purposes of determining child support. Dosmann argues the district court failed to consider income received in 2014 from a former employer and made a conservative estimate on overtime that Schmuck may work. Dosmann argues that, based on Schmuck's previous work history, Schmuck has the ability to earn more than the district court found as his present income.

         [¶ 8] A party's earning ability is not necessarily the same as a party's net income for the purposes of determining child support under the guidelines. Conzemius v. Conzemius, 2014 ND 5, ¶ 45, 841 N.W.2d 716 (relying on Becker v. Becker, 2011 ND 107, ¶ 15, 799 N.W.2d 53 (discussing earning ability for purposes of spousal support versus child support)).

         [¶ 9] The evidence presented to the district court shows Schmuck's income fluctuated widely from 2009 to 2013. The parties had stipulated that the court should evaluate Schmuck's income for the purposes of calculating child support as if he had only worked at his current employer earning $52, 000 annually. In rejecting the parties' stipulation, the district court used the invited method to determine Schmuck's annual gross income based on his earnings at his current ...


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