Alane A. Schmuck, Plaintiff and Appellant
Richard D. Schmuck, Defendant and Appellee
from the District Court of Walsh County, Northeast Judicial
District, the Honorable M. Richard Geiger, Judge.
M. Seboe Einarson, 640 Hill Ave., Grafton, ND 58237, for
plaintiff and appellant.
Nyberg, 1018 First Ave. N., Fargo, ND 58102-4602, for
defendant and appellee.
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.
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
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.
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 ...