Christianson v. Christianson

2003 ND 186, 671 N.W.2d 801, 2003 N.D. LEXIS 191, 2003 WL 22846680

• Court: North Dakota Supreme Court
• Decided: December 2, 2003
• Docket: 20030123
• Status: Published

Opinions

SANDSTROM, Justice.

[¶ 1] Gerald Christianson is appealing a Northwest Judicial District Court judgment awarding Cecelia Christianson $900.00 per month in spousal support. Gerald Christianson argues that the district court erred in imputing income to him when determining his ability to pay, that Cecelia Christianson’s needs as a disadvantaged spouse were not supported by the evidence, that temporary support should have been awarded, and that equalizing their income was inappropriate. Because we are unable to fully review the district court’s finding that Cecelia Christianson is a disadvantaged spouse entitled to permanent support, we affirm that portion of its decision. Concluding the district court improperly calculated the amount of spousal support, we reverse and remand for proper calculation.

I

[¶ 2] Gerald and Cecelia Christianson married in June 1968. Gerald Christian-son sued Cecelia Christianson for divorce in January 2001. At the time of trial, Gerald Christianson was 56 and Cecelia Christianson was 58. Gerald Christianson has a Bachelor of Science Degree in Biology, a Master’s Degree in School Administration, and a Specialist’s Degree in Educational Leadership.

[¶ 3] Gerald Christianson had been working as a Superintendent at Parshall High School in Parshall, North Dakota. Following the 1999-2000 school year, he retired and began drawing benefits from the North Dakota Teachers’ Fund for Retirement. He gave up his position in anticipation of obtaining a “state job” as a grant administrator, but the job never materialized. Before retiring, Gerald Christianson had an annual salary of $56,000, and with benefits, his compensation was close to $65,000.

[¶ 4] Gerald Christianson enrolled at North Dakota State University in Fargo, North Dakota, in August of 2000 to pursue a Specialist’s Degree in Educational Leadership. The salary range for a person with this degree is between $50,000 and $90,000. While attending school at North Dakota State University, Gerald Christian-son earned $692,00 per month as a graduate teaching assistant and $800.00 per month as a sales associate at Marshall Field’s. Gerald Christianson’s retirement income at the time gave him $2,273.86 per month. He forwarded $1,050.00 of that amount to Cecelia Christianson. Gerald Christianson is in good health, aside from occasional back pain.

[¶ 5] Cecelia Christianson has a Bachelor of Science Degree in Elementary Education. She is employed as an elementary school teacher at Plaza School in Plaza, North Dakota, earning $24,500. She also works part-time at the Cenex Convenience Store in Parshall, earning from $300 to $350 per month.

[¶ 6] On October 15, 2001, the district court awarded 60 percent of the marital property to Cecelia Christianson and 40 percent to Gerald Christianson. The district court found Cecelia Christianson to be a disadvantaged spouse and determined she could not be rehabilitated. The court awarded her permanent support in the amount of zero ($0.00) dollars. Given the fact that Gerald Christianson did not have full-time employment and was pursuing a degree, the court deferred setting the amount of spousal support until October 15, 2002.

[¶ 7] The district court found Cecelia Christianson had low job security; the school where she teaches has declining enrollment, and at some point it may no longer be feasible to keep the school open. It found that she may find it difficult to obtain other employment as a teacher because there are many elementary school teachers and she is 58 years old and does not have a portfolio, which is required by many schools.

[¶ 8] The district court also found the parties moved to different communities nine times during their marriage. It found these moves were made solely to advance Gerald Christianson’s career, and little consideration was given to whether Cecelia Christianson could obtain a teaching job. It also found Cecelia Christian-son’s teaching career was interrupted by these moves; extended time away from the classroom does not look good on a resume. The district court found that being away from teaching also made it difficult for Cecelia Christianson to build retirement. Because the parties dipped into her retirement fund on four occasions, her retirement is a fraction of what it could have been. It also found that Cecelia Christian-son has heel spurs in both feet and will eventually require surgery. Judgment was entered November 6, 2001.

[¶ 9] On January 16, 2003, the district court again reviewed the issue of support. The court found Cecelia Christianson’s needs as a disadvantaged spouse had become more pronounced since the divorce judgment had been entered; the A.G. Edwards stock portfolio awarded to her as part of the property division had sharply declined in value. The court also found that despite a concerted and good-faith attempt to obtain employment, Gerald Christianson has been unable to secure a position in the field of school administration. The court recognized that Gerald Christianson voluntarily gave up a $56,000 job, that the salary range for an individual possessing his type of degree is $50,000 to $90,000, and that his present earnings are significantly less than the prevailing amounts earned in the community by persons with a similar work history and occupational qualifications. The court found Gerald Christianson to be underemployed. The court used an equalization-of-income approach and imputed income to Gerald Christianson to set the support award at $900.00 per month. The amended judgment was entered on April 3, 2003.

[¶ 10] 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, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 11] Gerald Christianson argues the district court erred in finding Cecelia Christianson a disadvantaged spouse entitled to permanent spousal support.

[¶ 12] Cecelia Christianson argues that because Gerald Christianson failed to order a transcript of the trial, he cannot challenge the district court’s finding that she is a disadvantaged spouse entitled to permanent spousal support.¹

[¶ 13] We note that had the “disadvantaged spouse, permanent spousal support” issue been reviewable, Gerald Christianson would have been largely foreclosed from meaningful review because of his failure to provide a transcript of the proceedings leading to the November 6, 2001, judgment. In a divorce case, a 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. “A determination on spousal support is treated as a finding of fact which will not be set aside on appeal unless clearly erroneous.” Sommers v. Sommers, 2003 ND 77, ¶ 15, 660 N.W.2d 586. Rule 10(b), N.D.R.App.P., requires an appellant to file the trial transcript with this Court on appeal. Sabot v. Fargo Women’s Health Organization, Inc., 500 N.W.2d 889, 891 (N.D.1993). When the appellant fails to file a transcript, he or she assumes the consequences. If the record on appeal does not allow a meaningful and intelligent review of the error, we decline to review it. Id. at 892. See also Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 8, 660 N.W.2d 558; Wagner v. Squibb, 2003 ND 18, ¶ 5, 656 N.W.2d 674.

[¶ 14] 'Here, the lack of a transcript precludes meaningful review. We affirm on this issue.

Ill

[¶ 15] Gerald Christianson argues that no authority exists for imputing income to him for the purpose of calculating spousal support, that equalization of income was inappropriate for this case, and that the district court improperly assessed his ability to pay.

A

[¶ 16] He argues spousal support is not the same as child support, in which the imputation of income is authorized, and claims no such authority exists in the case of spousal support.

[¶ 17] “Spousal support awards must be made in consideration of the disadvantaged spouse’s needs and of the supporting spouse’s needs and ability to pay.” Shields v. Shields, 2003 ND 16, ¶ 10, 656 N.W.2d 712.

[¶ 18] Cecelia Christianson can point to no North Dakota statutory or case law providing for the imputation of income in spousal support cases. Other states have permitted imputing income in some cases. See, e.g., Moore v. Moore, 242 Mich.App. 652, 619 N.W.2d 723, 724-25 (2000); In re Marriage of Carrick, 560 N.W.2d 407, 410 (Minn.Ct.App.1997); Grady v. Grady, 295 Ark. 94, 747 S.W.2d 77, 78-79 (1988). Even if it were allowed, it would not be appropriate for this case. See id. The district court found that despite a concerted and good-faith attempt on Gerald Christianson’s part to obtain employment, he has come up empty-handed in his job search.²

B

[¶ 19] Gerald Christianson claims that the use of an income-equalization approach to spousal support was not appropriate.

[¶ 20] Equalization is not a goal of spousal support, and equalization of income between divorcing spouses is not a measure of spousal support although it is a factor that can be considered. Sommers, 2003 ND 77, ¶ 17, 660 N.W.2d 586. The amount of support ordered greatly exceeds Gerald Christianson’s ability to pay and is not justified by “equalization of income.”

[¶ 21] We reverse, concluding the district court improperly imputed income to Gerald Christianson when it sought to equalize the parties’ incomes. We remand to the district court for proper calculation of spousal support based upon the parties’ needs and ability to pay.

IV

[¶ 22] Cecelia Christianson argues she should be awarded attorney fees on appeal because Gerald Christianson’s actions have unreasonably increased the time and effort spent on the dispute.

[¶ 23] “The principal factors to be considered for deciding the amount of attorney fees are need and ability to pay.” Mahoney v. Mahoney, 1997 ND 149, ¶ 40, 567 N.W.2d 206. “An award of attorney’s fees in litigation about marital obligations between former spouses does not depend entirely on the merits of each position, although whether one party’s actions unreasonably increased the time and effort spent on the dispute can be a factor.” Id.

[¶ 24] Section 14-05-23, N.D.C.C., states that “during any time in which an action for separation or divorce is pending, the court, upon application of a party, may issue an order requiring ... payment of attorney fees.” Under this section we have concurrent original jurisdiction with the district court to award attorney fees on appeal. Severson v. Severson, 482 N.W.2d 594, 596 (N.D.1992).

[A]s we are an appellate court and exercise original jurisdiction rarely, as attorney’s fees and costs involve the necessity of determining facts, and as we ordinarily do not determine facts, we prefer that the district court initially make the determination of attorney’s fees even in conjunction with an appeal to our Court. McIntee v. McIntee, 413 N.W.2d 366, 367 (N.D.1987). When a party to a divorce action makes a motion in this Court for an award of attorney’s fees on appeal, we generally remand the issue to the district court for a determination. Roen v. Roen, 438 N.W.2d at 174.

Severson, at 596.

[¶ 25] We remand this case to the district court for a determination of whether attorney fees should be awarded to Cecelia Christianson and, if so, for what amount.

V

[¶ 26] We reverse the district court’s judgment as to the amount of spousal support and remand for further proceedings.

[¶ 27] CAROL RONNING KAPSNER, J., concurs. GERALD W. VANDE WALLE, C.J., I concur in the result remanding this case for further proceedings.

1 . That Cecelia Christianson was a disadvantaged spouse entitled to permanent spousal support was established by the district court's October 15, 2001, findings, conclusion, and order, and the November 6, 2001, judgment. That judgment was not appealed. If the judgment was final and appealable, it would be res judicata, and we normally would not review it. See Ohio Cas. Ins. Co. v. Clark, 1998 ND 153, ¶ 23, 583 N.W.2d 377. We need not decide whether it was res judicata, because res judicata was not raised by the parties and our resolution of the issue has the same result as if it were res judicata.

2 . Contrary to the concurring and dissenting opinion’s statement, at ¶ 36, the district court did not implicitly or explicitly find Gerald Christianson was "voluntarily underemployed.”