SWARD v. SWARD

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. C5-87-423.

Attorney(S)

James E. Dehn, Dehn and Joslin, Cambridge, for respondent. J. Bertram Press, Minneapolis, for appellant.

Acts

Armed Forces — General Military Law — Computation Of Retired Pay — Personnel — Payment Of Retired Or Retainer Pay In Compliance With Court Orders
The Public Health And Welfare — Social Security — Grants To States For Aid And Services To Needy Families With Children And For Child-Welfare Services — Child Support And Establishment Of Paternity — Consent By United States To Income Withholding, Garnishment, And Similar Proceedings For Enforcement Of Child Support And Alimony Obligations

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Smart Summary

Factual and Procedural Background

Steven Sward and Bernadine Sward were married in 1963 and have one minor child, Theresa, who was 16 years old at the time of the hearing. Steven has a 100% permanent disability from military service sustained before the marriage, receiving $1,391 monthly from the Veteran's Administration and $738 from Social Security, plus an additional $376 monthly social security dependent's benefit for Theresa. The trial court found Steven’s monthly expenses to be $1,000.

The trial court ordered Steven to pay child support of $532.25 per month, representing 25% of his net monthly income of $2,129. The social security dependent’s benefit was ordered paid directly to Bernadine without offsetting the child support obligation. Child support was to continue until Theresa’s high school graduation or an earlier specified event, with anticipated graduation in June 1988.

Bernadine was found capable of earning $240 per month working part-time while attending school, with reasonable monthly expenses of $1,750. The court ordered maintenance of $600 per month initially, increased to $1,000 after child support ends, to cover her fixed costs as custodian until her anticipated graduation with a four-year degree in June 1990.

The court awarded Bernadine occupancy of the homestead, valued at $69,900 with equity of approximately $58,500. The parties were ordered to sell the house or settle their interests upon Theresa’s graduation, Bernadine’s remarriage, death, or abandonment of the homestead. Proceeds were to be divided equally, subject to offsets in favor of Bernadine, including property equalization, half of principal payments, taxes, insurance, home maintenance and repairs, half of non-reimbursed medical expenses, and attorney’s fees.

The decree included a permanent restraining order requiring Steven to pick up Theresa at the end of the driveway for visitation and restraining him from entering the homestead property. Both parties were restrained from harassing each other. The court found Steven had violated prior restraining orders by entering the homestead and injuring Bernadine in the presence of the minor child.

Legal Issues Presented

Did the trial court err in considering social security and military disability benefits as "income" to be considered in setting child support and maintenance?
Did the court abuse its discretion in setting the amount of maintenance?
Did the court abuse its discretion in dividing the proceeds from the sale of the homestead?
Did the court exceed its authority by including a permanent restraining order?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Marriage of Bornstein, 359 N.W.2d 500 (Iowa Ct.App. 1984)	Military disability benefits may be considered income though not divisible as marital asset.	The court relied on this precedent to affirm that military disability benefits can be included as income in determining child support and maintenance.
Leighton v. Leighton, 81 Wis.2d 620, 261 N.W.2d 457 (1978)	Military disability benefits are income for support purposes.	Supported the court’s holding that such benefits are properly considered income for child support and maintenance calculations.
In re Marriage of Haynes, 343 N.W.2d 679 (Minn.Ct.App. 1984)	Child’s receipt of dependent’s social security benefits does not constitute child support payment.	The court used this to justify not offsetting child support by the dependent’s social security benefits.
Fink v. Fink, 366 N.W.2d 340 (Minn.Ct.App. 1985)	Spousal maintenance should not normally require invading principal assets.	Guided the court’s reasoning on maintenance amount and duration, allowing for modification if circumstances change.
Rutten v. Rutten, 347 N.W.2d 47 (Minn. 1984)	Apportionment of home ownership costs (mortgage, taxes, insurance, maintenance) is appropriate.	Supported the court’s decision to charge Steven for half of maintenance and repair expenses from his share of equity.
DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755 (Minn. 1981)	Trial court has inherent equitable powers in dissolution proceedings.	Used to uphold the court’s authority to issue a permanent restraining order despite lack of explicit statutory authorization.

Court's Reasoning and Analysis

The court addressed each issue systematically. First, it concluded that military disability and social security benefits, while protected from division as marital property, may be considered as income for child support and maintenance purposes under Minn.Stat. § 518.54, subd. 6, and relevant federal statutes. The court relied on precedents to confirm this interpretation.

Regarding maintenance, the court found the trial court's award consistent with statutory factors under Minn.Stat. § 518.552, considering Bernadine’s limited income, reasonable expenses, lack of significant property, and Steven’s ability to pay. The court acknowledged the potential for future modification after property division, consistent with precedent discouraging depletion of principal assets for maintenance.

On property division, the court determined that allocating half of home maintenance, repairs, and non-reimbursed medical expenses against Steven’s share of the homestead equity was a proper apportionment of costs benefiting both parties, supported by precedent.

Finally, the court found the trial court had inherent equitable authority to issue a permanent restraining order, despite the absence of explicit statutory authorization, particularly given Steven’s violation of prior orders and threats, and the award of homestead occupancy to Bernadine. The restraining order was deemed a proper exercise of the court’s power to protect the custodial parent and child.

Holding and Implications

The court affirmed the trial court’s decision.

The trial court did not err in considering military disability and social security benefits as income for child support and maintenance calculations. It did not abuse its discretion in setting maintenance or in dividing the proceeds from the homestead sale. The court also had authority to include a permanent restraining order in the dissolution decree.

The direct effect is to uphold the trial court’s comprehensive order on child support, maintenance, property division, and restraining relief. The opinion does not establish new precedent beyond affirming established principles regarding income characterization, maintenance factors, apportionment of home-related expenses, and equitable powers in dissolution proceedings.

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In re the Marriage of Bernadine Mary SWARD, Petitioner, Respondent, v. Ste

OPINION

NIERENGARTEN, Judge.

Steven Sward appeals the trial court's child support and maintenance awards and a permanent restraining order. We affirm.

FACTS

Steven Sward and Bernadine Sward were married in 1963 and have one minor child, Theresa, 16 years old at the time of the hearing. Steven has a 100% permanent disability from military service sustained before the marriage. He receives a disability benefit of $1,391 per month from the Veteran's Administration and $738 from Social Security. There is an additional social security dependent's benefit of $376 per month for Theresa. The court found his monthly expenses to be $1,000.

The trial court ordered child support of $532.25 per month, 25% of Steven's net monthly income of $2,129 per month. No offset from this obligation was allowed for the social security dependent's payment, which the court ordered paid directly to Bernadine. The trial court ordered child support to continue until Theresa's high school graduation (or until the earliest of other events if earlier than graduation). She anticipates graduating in June of 1988.

The court found Bernadine has the ability to earn $240 per month working part time while attending school, and that she will graduate with a four-year degree in June of 1990. It found her reasonable monthly expenses to be $1,750, leaving a difference of $600 between her expenses and her income, including child support and the social security payment. The court ordered maintenance in this amount and then increased it to $1,000 after child support ends, "to defray fixed costs of [Bernadine] as custodian," until June 1990.

The court awarded Bernadine occupancy of the homestead, which it valued at $69,-900, with equity of approximately $58,500. The court ordered the parties to either sell the house or settle their respective interests when Theresa graduates or Bernadine remarries, dies, or abandons the homestead. The proceeds of the sale are to be divided equally, less several offsets in favor of Bernadine. These include: $10,618 to equalize the total property awards; one-half of principal payments, taxes, insurance and maintenance, repair and improvements on the home; one-half of nonreimbursed medical expenses; and attorney's fees.

The trial court included a permanent restraining order in the decree, requiring Steven to pick Theresa up for visitation at the end of the driveway and restraining him from entering the homestead property. Each party was restrained from harassing the other. The court found Steven had

violat[ed] prior Court Restraining Orders in entering the homestead and in injuring [Bernadine], all in the presence of the minor child.

ISSUES

1. Did the trial court err in considering social security and military disability benefits as "income" to be considered in setting child support and maintenance?

2. Did the court abuse its discretion in setting the amount of maintenance?

3. Did the court abuse its discretion in dividing the proceeds from the sale of the homestead?

4. Did the court exceed its authority by including a permanent restraining order?

ANALYSIS I

Steven contends the trial court's support order violates federal law exempting military disability benefits from division in dissolution cases and from attachment or assignment. See 10 U.S.C. § 1408(a)(4), 42 U.S.C. § 659(a). The court, however, only considered the benefits as income relevant to a determination of appropriate child support and maintenance.

Minn.Stat. § 518.54, subd. 6 (1986) defines "income" to include "military and naval retirement, pension and disability payments." Military disability benefits may be considered as income although they may not be divided as a marital asset. See In re Marriage of Bornstein, 359 N.W.2d 500 (Iowa Ct.App. 1984); Leighton v. Leighton, 81 Wis.2d 620, 261 N.W.2d 457 (1978).

Social security benefits are not listed as "income" in the statute nor have they been expressly included by judicial decision. However, child support has been ordered paid by obligors whose income was limited to social security benefits. See In re Marriage of Haynes, 343 N.W.2d 679, 680 (Minn.Ct.App. 1984) (child's receipt of dependent's benefits did not constitute a child support payment). Social security benefits are not exempt from garnishment or other legal process to enforce child support. See 42 U.S.C. § 659.

We conclude that both military and social security disability benefits may be considered as "income" in setting child support and maintenance awards.

Steven argues the maintenance ordered is excessive and beyond his capacity to pay. The trial court's finding adequately addresses the factors set out in Minn. Stat. § 518.552, subd. 2 (1986). Bernadine does not receive any significant property settlement until the homestead is sold or one of the parties buys out the interest of the other. She lacks sufficient property to meet her reasonable needs and is unable to support herself adequately without significant training or education. See Minn.Stat. § 518.552, subd. 1(a), (b) (1986). Her expenses exceed her income, including child support. She has foregone employment opportunities during the marriage, and Steven is able to pay the $600 per month initially ordered, plus child support. See Minn.Stat. § 518.552, subd. 2(a), (b), (e), (g) (1986).

As to the future increase in maintenance when the property division is settled with sale of the homestead or buy-out of either spouse's interest, the statute does allow the court to consider, in setting the amount and duration of maintenance,

the extent to which a provision for support of a child living with the party includes a sum for that party as custodian * * *.

Minn.Stat. § 518.552, subd. 2(a) (1986).

While it is questionable Bernadine's needs will require an increase in maintenance when child support ends and the property division is settled, the ultimate settlement results are uncertain. We recognize that in determining the amount and duration of spousal maintenance, courts normally do not expect a spouse to invade the principal of her assets in order to meet monthly expenses. Fink v. Fink, 366 N.W.2d 340, 342 (Minn.Ct.App. 1985). If circumstances have changed at the time of property division, the parties may move for a modification. Minn.Stat. § 518.64, subd. 2 (1986).

III

Steven contends the court abused its discretion in ordering one-half of all maintenance and repair on the house and one-half of non-reimbursed medical expenses to be taken out of his share of the equity in the house. We find no abuse of discretion. Costs of home ownership are an expense properly apportioned, not only as a fixed cost of providing shelter to the minor child, but also as an expense of maintaining equity in the home, from which Steven will receive a benefit. See Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984) (ordering husband to pay one-half of mortgage, taxes, insurance and house maintenance not an abuse of discretion).

The minor child is diabetic, and requires special medical care. Although she is entitled to medical benefits through Steven's disability program, there are non-reimbursed medical expenses. The court did not abuse its discretion in apportioning the non-reimbursed medical expenses.

Steven contends the trial court did not have authority to issue a permanent restraining order. The court had issued a temporary order restraining Steven from entering the residence, but he allegedly went to the residence anyhow, and threatened to kill Bernadine. The court found sufficient basis for a contempt of court finding and ordered Steven jailed until a formal hearing. The parties later stipulated to a temporary restraining order.

The dissolution statutes do not expressly authorize permanent injunctive relief. The trial court, however, has inherent power to grant equitable relief in a marriage dissolution proceeding. DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 758 (Minn. 1981) (court had authority to order restitution for one spouse's contributions to the other's professional education). We conclude the court had the implicit power to restrain Steven from entering the homestead whose occupancy it had awarded to Bernadine under Minn.Stat. § 518.63 (1986). It could also restrain his entry onto the homestead for purposes of exercising visitation. See Minn.Stat. § 518.175, subd. 1 (1986).

DECISION

The trial court did not err in considering appellant's disability benefits as "income." The court did not abuse its discretion in setting maintenance or in dividing the marital property. The court had authority to include in the decree a permanent restraining order.

Affirmed.