Fietzek v. Fietzek , 2023 ND 78 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
APRIL 26, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 78Henry C. Fietzek, Jr., Plaintiff, Appellee and Cross-Appellant
v.
Victoria J. Fietzek, Defendant, Appellant and Cross-Appellee
No. 20220236
Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Troy J. LeFevre, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Jensen, Chief Justice, in which Justices Crothers,
Tufte, and Bahr joined. Justice McEvers filed an opinion concurring and
dissenting.
Steven T. Ottmar, Jamestown, ND, for plaintiff, appellee and cross-appellant.
Pamela F. Coleman, Grand Forks, ND, for defendant, appellant and cross-
appellee.
Fietzek v. Fietzek
No. 20220236
Jensen, Chief Justice.
[¶1] Victoria Fietzek and Henry Fietzek cross-appeal from a divorce
judgment. Victoria Fietzek asserts the district court erred in its Ruff-Fischer
analysis, the distribution of the marital estate, the valuation of the assets,
finding Henry Fietzek did not commit economic waste, the limited duration of
spousal support, and in not awarding attorney’s fees to her. Henry Fietzek
asserts the district court erred in the duration and amount of spousal support
awarded to Victoria Fietzek. We affirm the district court’s Ruff-Fischer
analysis, the court’s findings of fact in regard to the equitable distribution of
the martial estate, the court’s finding that Henry Fietzek did not commit
economic waste, and the court’s denial of attorney’s fees. We reverse the order
for spousal support and remand for the district court to make additional
findings regarding spousal support and, if necessary, reconsider the allocation
of property.
I
[¶2] Henry Fietzek and Victoria Fietzek were married on December 28, 1976.
The parties have four children together. Henry Fietzek served Victoria Fietzek
with the summons and complaint on December 7, 2020 and the parties have
agreed to use the date of service as the valuation date for valuing their assets
and debts. Following a bench trial, the district court entered Findings of Facts,
Conclusions of Law, and an Order for Judgment, distributing the marital
estate, denying Victoria Fietzek’s request for attorney’s fees, and awarding
Victoria Fietzek spousal support.
II
[¶3] Victoria Fietzek argues the district court erred in its Ruff-Fischer
analysis. The Ruff-Fischer guidelines require the court to consider:
[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
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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. The trial court is not required to make specific
findings, but it must specify a rationale for its determination.
Hitz v. Hitz, 2008 ND 58, ¶ 11, 746 N.W.2d 732. We review a district court’s
findings of fact under the clearly erroneous standard. Lorenz v. Lorenz, 2007
ND 49, ¶ 5, 729 N.W.2d 692. “A finding of fact is clearly erroneous when it is
induced by an erroneous view of the law, there is no evidence to support it, or
when, although there is some evidence to support it, after a review of the
entirety of the evidence, this Court is left with a definite and firm conviction a
mistake has been made.” Hitz, at ¶ 10. We presume the district court’s findings
are correct. Lorenz, at ¶ 5.
[¶4] Victoria Fietzek asserts the district court erred in placing little or no
weight on her allegations of Henry Fietzek’s bad conduct. During trial, Victoria
Fietzek testified that Henry Fietzek may have been involved in an extra-
marital affair during the marriage. The court found there was no credible
evidence presented that Henry Fietzek spent any funds on a third party during
the marriage or that the alleged affair caused the end of the marriage. There
was also testimony Henry Fietzek treated Victoria Fietzek poorly during the
marriage. The court found the testimony was not credible. “[T]his Court will
not second-guess a district court’s credibility determinations.” Orwig v. Orwig,
2021 ND 33, ¶ 22, 955 N.W.2d 34. The district court’s findings that Henry
Fietzek did not engage in bad conduct during the marriage are not clearly
erroneous because the court did not err in regard to the law, there is evidence
in the record to support the findings, and we are not left with a definite and
firm conviction a mistake has been made.
[¶5] Victoria Fietzek further argues the district court erred in finding she was
underemployed and finding the earning ability of the parties is neutral.
Victoria Fietzek testified she knew that by working only part-time she was
limiting her future social security benefits. Moreover, Henry Fietzek testified
he was retired and Victoria Fietzek testified she would be retiring soon. There
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is evidence in the record to support the court’s findings, the court did not err
in the law and we are not left with a definite and firm conviction a mistake has
been made.
III
[¶6] Victoria Fietzek argues the district court erred in the equitable
distribution of the marital estate. She asserts the court erred in its valuation
of the farmland/farmstead, valuation of the condominium, and the valuation of
the vehicles and other miscellaneous items.
This Court will not reverse a district court’s findings on valuation
of marital property unless they are clearly erroneous. Corbett v.
Corbett, 2001 ND 113, ¶ 12, 628 N.W.2d 312. “A finding of fact is
clearly erroneous if it is induced by an erroneous view of the law,
there is no evidence to support it, or if, although there is some
evidence to support it, on the entire evidence the reviewing court
is left with a definite and firm conviction a mistake has been
made.” Kautzman v. Kautzman, 1998 ND 192, ¶ 8, 585 N.W.2d 561.
“A choice between two permissible views of the evidence is not
clearly erroneous if the [district] court’s findings are based either
on physical or documentary evidence, or inferences from other
facts, or on credibility determinations.” Hoverson v. Hoverson,
2001 ND 124, ¶ 13, 629 N.W.2d 573. The value a district court
places on marital property depends on the evidence presented by
the parties. Fox v. Fox, 2001 ND 88, ¶ 22, 626 N.W.2d 660. This
Court presumes a district court’s property valuations are correct.
Hoverson, at ¶ 13.
Lee v. Lee, 2019 ND 142, ¶ 6, 927 N.W.2d 104.
[¶7] The district court accepted the values provided by Henry Fietzek for the
farmland/farmstead, the condominium, the vehicles, and other miscellaneous
items. “A trial court may accept the valuations submitted by one party, or weigh
one party’s value testimony more heavily.” Peterson v. Peterson, 1999 ND 191,
¶ 14, 600 N.W.2d 851. A court’s finding on a valuation of real property is not
clearly erroneous if it is within the range of evidence presented. Hitz, 2008 ND
58, ¶ 13. The court’s valuations of the farmland/farmstead, the condominium,
the vehicles, and other miscellaneous items are supported by the record and
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are within the range of evidence presented. There is evidence in the record to
support the court’s valuations, the court did not err in the law, and we are not
left with a definite and firm conviction a mistake has been made.
IV
[¶8] Victoria Fietzek argues the district court erred in finding Henry Fietzek
did not commit economic waste. Victoria Fietzek asserts Henry Fietzek
committed economic waste when he transferred his interest in the
farmland/farmstead to his and Victoria Fietzek’s children and when he used
the proceeds of the sale of the martial home to purchase other assets and pay
off debts.
[¶9] A district court’s finding of economic fault is a finding of fact subject to
the clearly erroneous standard. Conzemius v. Conzemius, 2014 ND 5, ¶ 22, 841
N.W.2d 716. “Economic misconduct is misconduct that results in a wasted asset
or in the reduction of the net marital estate.” Hoverson, 2001 ND 124, ¶ 24. “A
majority of this Court has never agreed that financial mismanagement,
without more, constitutes economic fault.” Id. at ¶ 23.
[¶10] Evidence was presented that Henry Fietzek transferred his interest in
the farmland/farmstead to his children in 2016 for estate planning purposes,
and well before the divorce proceedings were initiated. Henry Fietzek further
testified in detail what he spent the proceeds of the sale of the martial home
on and outlined what debts he paid off and what assets he purchased. The
district court found Henry Fietzek’s testimony more credible and found Henry
Fietzek did not commit economic waste. See Barth v. Barth, 1999 ND 91, ¶ 13,
593 N.W.2d 359 (“A choice between two permissible views of conflicting
evidence is not clearly erroneous.”). There is evidence in the record to support
the court’s finding, the court did not err in the law, and we are not left with a
definite and firm conviction a mistake has been made.
V
[¶11] Victoria Fietzek asserts the district court erred in denying her an award
of attorney’s fees. A court has broad discretion to award attorney’s fees in
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divorce proceedings. Lewis v. Smart, 2017 ND 214, ¶ 32, 900 N.W.2d 812. The
standard governing an award of attorney’s fees is consideration of one spouse’s
needs and the other spouse’s ability to pay. Id. “Additional considerations may
include ‘whether one party’s conduct has unreasonably increased the time
spent on the case, the property each party owns, whether liquid or fixed, and
the parties’ relative incomes.’” Fercho v. Fercho, 2022 ND 214, ¶ 37, 982 N.W.2d
540 (quoting Gustafson v. Gustafson, 2008 ND 233, ¶ 14, 758 N.W.2d 895).
[¶12] The district court considered the property each party owns, the balances
of each parties’ bank accounts, and the state of their debt in determining
Victoria Fietzek should not be awarded attorney’s fees. The court’s
determination was not arbitrary, unconscionable, unreasonable, and was not
the result of an irrational mental process. The court did not abuse its discretion
in denying attorney’s fees to Victoria Fietzek.
VI
[¶13] Victoria Fietzek argues the district court erred in awarding her spousal
support for only 10 years, asserting 15 years is the proper duration. Henry
Fietzek argues the court erred in awarding Victoria Fietzek spousal support
because the court erred in finding Victoria Fietzek has a need, Henry Fietzek
has the ability to pay, and erred in awarding spousal support for 10 years.
This Court reviews an award of spousal support as a finding
of fact subject to the clearly erroneous standard of
review. Willprecht v. Willprecht, 2021 ND 17, ¶ 7, 954 N.W.2d
707. Section 14-05-24.1(1), N.D.C.C., provides that a court may
require a party to pay spousal support for a limited period of time.
An analysis of the Ruff-Fischer factors is also required. Berdahl [v.
Berdahl], 2022 ND 136, ¶ 7, 977 N.W.2d 294. “[T]he Ruff-
Fischer guidelines allow a district court to consider the parties’
conduct during the marriage, including fault.” Swanson [v.
Swanson], 2019 ND 25, ¶ 12, 921 N.W.2d 666. “[B]oth economic
and noneconomic fault are proper factors for the trial court to
consider[.]” Hitz, 2008 ND 58, ¶ 15, 746 N.W.2d
732 (quoting McDowell v. McDowell, 2001 ND 176, ¶ 6, 635 N.W.2d
139). “Economic misconduct is misconduct that results in a wasted
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asset or in the reduction of the net marital estate.” Swanson, at ¶
12.
Kitzan v. Kitzan, 2023 ND 23, ¶ 17, 985 N.W.2d 717. In determining spousal
support the court must determine whether the spouse seeking spousal support
has a need and whether the other spouse has an ability to pay. Berdahl, 2022
ND 136, ¶ 25.
[¶14] Victoria Fietzek argues the district court erred in awarding spousal
support for only 10 years when the court should have awarded it for 15 years.
The court explained it applied the actuarial tables and Henry Fietzek’s age
along with the potential pension payments Victoria Fietzek might receive upon
Henry Fietzek’s death to determine 10 years was the appropriate duration. We
are not left with a definite and firm conviction a mistake has been made as to
the duration of spousal support.
[¶15] Henry Fietzek argues the district court erred in determining Victoria
Fietzek has a need. The court found Victoria Fietzek is in need of spousal
support, concluding she would be in a deficit of $1,495.00 a month. Victoria
Fietzek testified her monthly expenses are $2,933.00, and her expected income
from social security would be $1,438.00, putting Victoria Fietzek in a deficit of
$1,495.00. The record supports the district court’s conclusion that Victoria
Fietzek has a need and this finding is not clearly erroneous.
[¶16] The district court also found Henry Fietzek has the ability to pay
$1,000.00 per month for a period of 10 years. However, the evidence does not
support the court’s findings about Henry Fietzek’s monthly income and his
ability to pay. The court found Henry Fietzek has the ability to pay by
concluding he could pursue refinancing some or all of his debt over a longer
term to reduce his monthly payments. The court did not articulate which debt
could be refinanced and how it could be refinanced in order for Henry Fietzek
to have the ability to pay. The court found Henry Fietzek had monthly expenses
of $5,723.00 and a monthly income of $5,580.61. The court’s calculation of
Henry Feitzek’s monthly income seems to be slightly incorrect. The record
provides Henry Fietzek receives $2,491.00 in social security payments and
thus Henry Fietzek’s total monthly income is $5,610.61. Henry Fietzek,
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therefore, has a surplus each month of $30.00. The district court found that
Henry Fietzek had inflated expenses:
Henry’s budget includes $250 per month for vehicle repairs, yet his
vehicle was manufactured in 2020 and is, presumably, still under
warranty. Henry’s budget also includes $300 for recreation and
$200 for gifts. He also lists a monthly payment of $1,941 to
creditors. Much of the debt that he is paying off is for the 2020
GMC Yukon, which will be paid off in a few years. Henry could
pursue refinancing some or all of his debt over a longer term to
reduce his monthly payments. With these facts in mind, the court
finds that Henry does have the ability to pay spousal support.
However, even with the referenced inflated expenses deducted from Henry
Fietzek’s budget, a $1,000.00 a month spousal support payment would still
leave him with a monthly deficit. While it may be possible for Henry Fietzek
to restructure the existing debt, the record does not include any evidence
confirming the debt could be restructured, how the restructure could be
accomplished, or if the restructuring would increase the debt. The district court
has not provided this Court with a calculation of how Henry Fietzek can meet
his monthly obligations and pay the ordered spousal support payment. We
conclude the district court failed to make sufficient findings that Henry Fietzek
has the ability to pay and remand.
VII
[¶17] We have frequently noted “property division and spousal support are
both interrelated and intertwined, and must be considered together.” Kaspari
v. Kaspari, 2022 ND 204, ¶ 16, 982 N.W.2d 291. See also Berg v. Berg, 2018 ND
79, ¶ 9, 908 N.W.2d 705. Although we affirm all of the findings of fact related
to the distribution of the marital estate, we leave open the property
distribution on remand in the event that after review of spousal support the
district court determines a different allocation is appropriate.
VIII
[¶18] The district court’s Ruff-Fischer analysis, distribution of the marital
estate, and finding that Henry Fietzek did not commit economic waste was not
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clearly erroneous. The court’s denial of attorney’s fees was not an abuse of
discretion. The court’s findings Henry Fietzek’s ability to pay for spousal
support were clearly erroneous or insufficient. We have considered the parties’
remaining arguments and conclude they are without merit or not necessary to
our decision. We affirm the judgment in part, reverse the district court’s
spousal support award, and remand for further proceedings consistent with
this opinion.
[¶19] Jon J. Jensen, C.J.
Daniel J. Crothers
Jerod E. Tufte
Douglas A. Bahr
McEvers, Justice, concurring and dissenting.
[¶20] I agree with and concur with the majority in Sections I, II, III, IV, V, and
VII. I also agree with the majority’s analysis on the length of spousal support
and Victoria Fietzek’s need for spousal support in Section VI. Majority, at
¶¶ 14-15.
[¶21] I respectfully dissent to that portion of Section VI regarding Henry
Fietzek’s ability to pay. A court may award spousal support for a limited period
of time under N.D.C.C. § 14-05-24.1, taking into consideration the
circumstances of the parties. An award of spousal support is a finding of fact
that will not be set aside unless it is clearly erroneous. Becker v. Becker, 2011
ND 107, ¶ 27, 799 N.W.2d 53. When deciding whether spousal support is
appropriate, a court must consider the Ruff-Fischer guidelines. Woodward v.
Woodward, 2013 ND 58, ¶ 4, 830 N.W.2d 82. The district court must consider
the needs of the spouse seeking support and the ability of the other spouse to
pay. Id. Whether a spouse has the ability to pay is a finding of fact subject to
the clearly erroneous standard of review. See Fercho v. Fercho, 2022 ND 214, ¶
36, 982 N.W.2d 540 (holding district court’s findings on ability to pay were not
clearly erroneous). “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. While I agree the district court’s
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findings could have been more detailed, I am able to determine the reasons for
the district court’s decision as explained below.
[¶22] The district court analyzed the Ruff-Fischer guidelines and considered
Victoria Fietzek’s needs versus Henry Fietzek’s ability to pay. The district court
found Henry Fietzek had a monthly income of $5,580.61. This amount is
supported by the record. On cross-examination, Henry Fietzek admitted that
his social security income was $2,461.00 per month, his pension was $715.36
per month, and his half of the farm income was $28,851.00 per year ($2,404.00
per month), which totals almost exactly the court’s finding. As pointed out in
the majority, the court’s finding appears to be a little low in that Henry
Fietzek’s social security payments are actually $30.00 per month higher than
he testified. Majority, at ¶ 16.
[¶23] I disagree with the majority that the district court found Henry Fietzek
had monthly expenses of $5,723.00. Majority, at ¶ 16. The district court
acknowledged Henry Fietzek alleged he had monthly expenses of $5,723.00,
but the court disagreed with this amount because his budget included expenses
that were not justified. For example, as noted by the majority, the district court
found a number of Henry Fietzek’s expenses were not justified: (1) his budget
was high at $250.00 per month for vehicle repairs when his vehicle was a 2020
model and likely under warranty; (2) his budget was high at $300.00 per month
for recreation; and (3) his budget was high at $200.00 per month for gifts. I
concede that the articulated reductions of alleged expenses alone were not
enough to show with mathematical certainty an ability to pay the spousal
support without considering refinancing or making payments over a longer
term to bring his monthly expenses down. While a court must adequately
explain the basis for its decision, we will not reverse a district court’s decision
when valid reasons are discernable, either by deduction or inference. Pearson
v. Pearson, 2009 ND 154, ¶ 13, 771 N.W.2d 288. The court’s decision between
two permissible views of conflicting evidence is not clearly erroneous. Id. at
¶ 10.
[¶24] In looking at Henry Fietzek’s listed unpaid debts and monthly payments,
the evidence in the record supports the court’s findings and decision to award
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spousal support. Henry Fietzek claimed he had $1,941.00 in monthly debt
payments. This allegation is based on three items: (1) a balance of $15,701.98
on his Cabela’s credit card with a monthly payment of $1,250.00; (2) a balance
of $3,689.00 on a TSC credit card with a monthly payment of $81.00; and (3) a
balance of $29,701.24 on his Yukon loan with a monthly payment of $610.00.
The district court found only $11,746.19 of Henry Fietzek’s credit card debt to
be valid marital debt. Looking only at the exhibit documenting Henry Fietzek’s
monthly statement at Cabela’s, the minimum payment due was $214.00, not
the $1,250.00 alleged. While the district court did not make a specific finding,
it is implicit in the court’s findings that it did not agree with either the amounts
Henry Fietzek listed as owing to his creditors or that he needed to pay
$1,941.00 in monthly expenses for this debt. The reduction of his Cabela’s
payment alone would be nearly enough to pay the spousal support awarded.
[¶25] In addition to what the district court cited as inflated expenses, Henry
Fietzek has other expenses that appear inflated. His food budget of $500.00
per month is twice Victoria Fietzek’s budget; his streaming services expense of
$65.00 per month is unnecessary and no such expense is reflected in her
monthly budget; and his rental campsite fees of $125.00 per month is a luxury
not afforded to her. Based on the record, I can understand why the district
court found Henry Fietzek had the ability to pay. I would affirm.
[¶26] Lisa Fair McEvers
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