Donarski v. Donarski

1998 ND 128, 581 N.W.2d 130, 1998 N.D. LEXIS 140, 1998 WL 345202

• Court: North Dakota Supreme Court
• Decided: June 30, 1998
• Docket: Civil 970379
• Status: Published

Opinions

NEUMANN, Justice.

[¶ 1] Kenneth Donarski appealed from a judgment of divorce, claiming the trial court committed numerous errors in dividing the marital property and in awarding child support and spousal support. We hold the court’s findings underlying its award of post-minority medical and college expenses for BethAnn are inadequate and the court must reconsider that issue. We affirm in part, reverse in part, and remand.

[¶2] Kenneth and Janet Donarski were married in 1974. Janet’s daughter from a prior marriage, Amy, age 27, was adopted by Kenneth after he and Janet married. Kenneth and Janet also have two children of this marriage, Nathan, age 21, and BethAnn, age 16.

[¶ 3] Kenneth graduated from the University of North Dakota in 1975 with a bachelor’s degree in social work. The family resided in Grand Forks where Kenneth worked first as a housing rehabilitation specialist and then as Director of the Grand Forks Housing Authority. In March 1992, Kenneth accepted the position of Director of the Fargo Housing Authority, and the family moved to Fargo. After receiving her high school diploma, Janet received one year of medical technical training and an additional year of junior college. Throughout the marriage Janet assumed various minimum wage part-time jobs while she was the primary homemaker and caregiver for the children.

[II4] Irreconcilable differences developed in the marriage, and in December 1996 Janet filed for divorce. After a hearing, the court granted Janet a divorce, divided the marital property, awarded Janet custody of BethAnn and permanent spousal support, and awarded child support for BethAnn. Kenneth appealed.

I

[¶ 5] The trial court awarded Janet permanent spousal support of $400 per month until Kenneth’s child support obligation for Be-thAnn terminates. Thereafter, the court awarded Janet spousal support of $750 per month until her death or remarriage. Kenneth asserts the court’s award of permanent spousal support is clearly erroneous. Kenneth claims Janet can either seek further education to increase her earning potential or she can work full time selling Tupperware, a business she has engaged in part time throughout the marriage, to earn a satisfactory income.

[¶ 6] The trial court’s determination on spousal support is a finding of fact which will not be set aside unless clearly erroneous. Orgaard v. Orgaard, 1997 ND 34, ¶ 5, 559 N.W.2d 546. Under this standard we reverse only if there is no evidence to support a finding or if, upon review of the entire evidence, we are left with a definite and firm conviction the trial court has made a mistake. Id. Under N.D.C.C. 14-05-24, the trial court is authorized to “compel either of the parties ... to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively.” In determining the spousal support issue, it is appropriate for the court to consider the standard of living of the parties in a long-term marriage and the need to balance the burdens created by the separation when it is impossible to maintain two households at the pre-divorce standard of living. Gronland v. Gronland, 527 N.W.2d 250, 253 (N.D.1995). Permanent support is not limited to a spouse who is incapable of any rehabilitation, but may be awarded to a spouse incapable of adequate rehabilitation or self support. Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D.1994). When there is substantial disparity between the parting spouses’ incomes that cannot be readily adjusted by property division or rehabilitative support, it may be appropriate for the court to award indefinite permanent support to maintain the disadvantaged spouse. Glander v. Glander, 1997 ND 192, ¶¶ 17 and 18, 569 N.W.2d 262.

[¶ 7] The trial court made several findings in support of its award of permanent spousal support. The court found Janet, age 49, was In good health except for a back injury which restricted her lifting. At the time of the trial Janet was engaged in three part-time positions earning a total net monthly income of $490. Kenneth was earning, after deductions for taxes and the cost of BethAnn’s health insurance, a net monthly income of $3,200. The court also found Kenneth had made inappropriate sexual advances toward the eldest daughter, Amy, which “justified [Janet’s] unease with leaving the children in [Kenneth’s] unsupervised care” and “prevented [Janet] from pursuing more challenging careers.” The court concluded:

“Janet is in need of permanent spousal support due to her limited marketable job skills, limited job experience, and sparse employment history. Janet’s income, even when viewed in the best possible light in the foreseeable future, will not reach the level which is expected to be enjoyed by Kenneth.”

[¶ 8] The court, upon considering Janet’s age, health, and work history, concluded Janet needs indefinite support. Janet’s limited marketable job skills are the result, at least in part, of Kenneth’s inappropriate sexual conduct toward Amy which necessitated Janet’s close guarding of the children while in the home and prevented her from pursuing an outside career. The court also considered the substantial disparity in income between the parties. We are not left with a definite and firm conviction the trial court, under these circumstances, made a mistake. We conclude, therefore, the trial court’s award of permanent spousal support is not clearly erroneous.

■II

[¶ 9] In its judgment, the trial court provided that Kenneth “shall be subject to an income withholding order for the payment of spousal support.” Kenneth claims there is “no statutory or other authority” for the court to make such an order and it should be set aside.

[¶ 10] Under N.D.C.C., 14-09-09.11, a judgment or order requiring the payment of child support may be enforced by an income withholding order. See Steffes v. Steffes, 1997 ND 49, ¶ 16, 560 N.W.2d 888. Under N.D.C.C. 14-05-25.2, any order or judgment for the support of a spouse or, former spouse may be “enforced in any manner provided for the enforcement of an order for the payment of child support under chapter 14-09....” We, therefore, find no error in the trial court making Kenneth’s spousal support payments subject to an income withholding order.

III

[¶ 11] The trial court required Kenneth to secure his spousal support obligation “with a life insurance policy or policies with a death benefit of not less than $50,000.00,” making Janet the “sole beneficiary” of that insurance. The trial court also required Kenneth to secure his child support obligation for BethAnn with a $10,000 life insurance policy, naming BethAnn as the primary beneficiary of that insurance. Kenneth asserts the trial court had no authority to require him to secure his spousal support and child support obligations with life insurance.

[¶ 12] N.D.C.C. 14-05-25, provides, in relevant part:

“The court may require either party to give reasonable security for providing maintenance or making any payments required under the provisions of this chapter and may enforce the same by appointment of a receiver or by any other remedy applicable to’ the case.”

It is appropriate for the trial court to secure support obligations with life insurance, especially in circumstances as exist here, where the obligor has existing policies of insurance on his life and can designate the obligee the beneficiary of the insurance proceeds. See Gierke v. Gierke, 1998 ND 100, ¶ 49, 578 N.W.2d 522. We conclude the court did not err in securing Janet and BethAnn’s support with life insurance.

IV

[¶ 13] The trial court ordered Kenneth to make health insurance available to Janet “through COBRA for 3 years” and ordered Kenneth to pay for Janet’s health insurance premiums until his child support obligation terminated. Thereafter, Janet is responsible for her health insurance premiums. The court also made Janet responsible for all of her medical care not covered by insurance. Kenneth asserts the trial court’s order requiring him to pay for Janet’s health insurance premiums is clearly erroneous.

[¶ 14] Under appropriate circumstances, the court can order one spouse to pay for the other’s health insurance premiums as part of the spousal support obligation. See, e.g., Routledge v. Routledge, 377 N.W.2d 542, 544-546 (N.D.1985). Considering the parties’ disparate incomes and the availability of health insurance for Janet through Kenneth’s employer, the trial court found it appropriate to require Kenneth to make health insurance available to Janet and to pay the premiums until Kenneth’s child support obligation for BethAnn terminates. Kenneth has provided no persuasive authority or argument why, under these circumstances, the court’s order is clearly erroneous. We are not left with a definite and firm conviction the trial court made a mistake imposing this limited health insurance obligation upon Kenneth for Janet.

V

[¶ 15] The court ordered Kenneth to maintain health insurance for BethAnn. See N.D.C.C. 14-09-08.10. The court also ordered him to “pay all mental, physical, dental, orthodontal, and optometrist care not covered by insurance.” Kenneth asserts the court’s requirement that Kenneth pay for BethAnn’s medical expenses not covered by insurance is clearly erroneous and without authority. The trial courts determination on child support is a finding of fact and will be affirmed unless it is clearly erroneous. N.D.R.Civ.P. Rule 52(a); Harty v. Harty, 1998 ND 99, ¶ 14, 578 N.W.2d 519. Under the child support guidelines, payments made by an obligor for the child’s actual medical expenses are deducted from the obligor’s monthly gross income for purposes of calculating the obligor’s monthly support obligation. N.D. Admin. Code 75-02-04.1-01(7)(e); see Withey v. Hager, 1997 ND 225, ¶ 9, 571 N.W.2d 142. Kenneth does not assert as error that the trial court failed to deduct Kenneth’s medical expense obligation for BethAnn in computing Kenneth’s net monthly income. We conclude therefore, the court’s requirement Kenneth pay BethAnn’s uncovered medical expenses is not clearly erroneous.

VI

[¶ 16] Kenneth asserts the trial court’s award to him of $6,875 from Be-thAnn’s credit bureau saving’s account is clearly erroneous, because the account has a balance of only $133. The account was established to save funds for BethAnn’s college education. Kenneth testified he used all but $133 of the funds for enhancements to the parties’ home and for payment of Kenneth’s attorney fees in this divorce action. The trial court’s award states Kenneth “shall receive the proceeds from BethAnn’s Credit Bureau’s saving’s account of $6,875.00 or whatever remains therein.” (Emphasis added.) We conclude the court’s award is consistent with the evidentiary record and is not clearly erroneous.

VII

[¶ 17] Kenneth asserts the trial court erred in ordering him to pay $2,500 towards Janet’s attorney fees. Under N.D.C.C. 14-05-23, the court has authority to award attorney fees in a divorce action. The trial court’s decision regarding attorney fees will not be disturbed on appeal unless it is affirmatively established the trial court has abused its discretion. Dickson v. Dickson, 1997 ND 167, ¶ 18, 568 N.W.2d 284. The principle factors for the court to consider in awarding attorney fees are need and ability to pay. Mahoney v. Mahoney, 1997 ND 149, ¶ 40, 567 N.W.2d 206. The trial court found there was considerable disparity in incomes between these parties. We are convinced the court took into account each of the parties’ needs and abilities to pay when-it ordered Kenneth to pay $2,500 'for Janet’s attorney fees, and we conclude the trial court did not abuse its discretion.

VIII

[¶ 18] The trial court ordered Kenneth to pay for BethAnn’s health insurance and medical expenses “through the age of 23, or through her successful completion of college and a bachelor’s degree, whichever is sooner.” The court also ordered Kenneth to pay “one-half of BethAnn’s reasonable college education expenses, including books, tuition and housing. Reasonable expenses are those incurred in pursuing a four year degree' in consecutive years upon graduation from high school.” Kenneth asserts these orders are clearly erroneous, because the trial court has no authority to order a parent to pay support for an adult child.

[¶ 19] In a divorce action, the court has authority to order payment of post-minority support, including college expenses, under appropriate circumstances. See Zarrett v. Zarrett, 1998 ND 49, ¶ 14, 574 N.W.2d 855; see also N.D.C.C. 14-09-08.2(4). We explained the rationale for and limitations upon¹ a court’s award of college education expenses in Davis v. Davis, 268 N.W.2d 769, 778 (N.D.1978), overruled on other grounds Nelson v. Trinity Medical Center, 419 N.W.2d 886 (N.D.1988):

“We conclude that the court did not erroneously interpret §§ 14-05-24 or 14-05-25, N.D.C.C., when it created a trust for the education of the four minor children (which would include a college education) .... There has been a trend toward awarding moneys for the furthering of education for children, including a college education, by the courts of the various States, even though the parents are divorced .... This determination is based upon factors which include the financial condition of a parent, as well as the family mode of living prior to the divorce.... ‘We adopt the rationale in those cases in Annot., 56 A.L.R.2d 1207 which affirm the court’s provision for a college education. We are not unaware of the increasing necessity of a college education or its equivalent, as well as the tremendous escalation of the costs of securing such an education.”

[¶ 20] We caution that a trial court’s authority to award postminority support to a child of a divorce is limited, and must be based upon full consideration of the particular circumstances of the case. The Supreme Court of New Jersey in Newburgh v. Arrigo, 88 N.J. 529, 443 A.2d 1031, 1038-1039 (1982), aptly describes the factors a court must consider in directing a parent to pay for costs of a child’s college education:

“In evaluating the claim for contribution toward the cost of higher education, courts should consider all relevant factors, including (1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) The amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the childls relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.”

[¶21] Of these factors, the parent’s ability to pay is most significant, and a parent cannot be compelled to contribute to an adult child’s college expenses if the parent’s financial resources are lacking. Moehring v. Maute, 268 N.J.Super. 477, 633 A.2d 1055, 1056-1057 (1993). The court must consider all relevant factors in deciding whether to award post-minority support. Stanford v. Stanford, 628 So.2d 701, 703 (Ala.Civ.App.1993). It is essential the court consider evidence pertaining to the amount required for college costs, including books, tuition, room and board, and to determine the amount that a parent can contribute without experiencing undue hardship. Id.

[¶ 22] The Supreme Court of Alabama emphasizes in Ex Parte Bayliss, 550 So.2d 986, 987 (Ala.1989), the relevant factors the trial court must consider in awarding post-minority support:

“[A] trial court may award sums of money out of the property and income of either or both parents for the post-minority education of a child of that dissolved marriage. ... In doing so, the trial court shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education. The trial court may consider, also, the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child’s relationship with his parents and responsiveness to parental advice and guidance.”

[¶ 28] Here the trial court found Kenneth “helped the older children, Amy and Nathan by providing funds toward a college education.” The court also found “Kenneth has the ability to provide for and pay a portion of BethAnn’s college expenses.” Other than these conelusory statements, the court made no specific findings of the relevant factors and circumstances the court needed to consider in awarding ' BethAnn post-minority support for college and medical expenses. The court placed no limit on the amount of Kenneth’s obligation to BethAnn. While the court did attempt to define college expenses, and did impose a limit as to time, it said nothing as to the cost or quality of the education to be financed. While setting an exact dollar amount for such an obligation will not always be desirable or even possible in many eases, fairness and equity require that obli-gors not be subjected to court-ordered obligations that are unlimited.

[¶24] We conclude the trial court’s award of post-minority support is not adequately supported by specific findings of fact, and is insufficiently bound by reasonable limitations. We, thereforé, reverse the award of post-minority medical and college expenses and remand for additional findings of fact and reconsideration of the issue.

IX

[¶ 25] Kenneth has raised additional issues which we conclude are entirely without merit.

[¶ 26] The judgment is affirmed in part, reversed in part, and remanded for redeter-mination on the issue of post-minority support.

[¶ 27] NEUMANN, MARING and MESCHKE, JJ., concur.

1 . Because there is no such statute, we would not need to reach the constitutionality of a statute allowing a court to order divorced parents to pay the college expenses of an adult child, although courts have found such provisions unconstitutional. See, e.g., Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995) (holding statute permitting a court to require divorced parents to pay for college education unconstitutional as violative of equal protection).