Burris v. Burris, 972 N.W.2d 103

Background:

Donald and Luann Burris divorced in 2006; the judgment required Donald to pay "permanent" spousal support continuing "until further order of the Court."
In 2020 Donald moved to eliminate or reduce spousal support. The district court denied the motion and declined to amend or replace the 2006 judgment.
The district court awarded Luann attorney’s fees based on Donald’s litigation misconduct; Donald paid the award without a stay or bond and then appealed.
Donald argued there had been a material change in circumstances (including Luann’s retirement, saleable assets, and changed health), that his own anticipated retirement should be treated as a material change, and that the 2015 amendment to the spousal-support statute should limit his obligation.
The district court found no material change, found Donald had made no concrete steps toward retirement, and declined to apply the 2015 statutory change to the pre-2015 award.
The Supreme Court affirmed: the modification finding was not clearly erroneous, Donald’s undefined future retirement was insufficient, the 2015 statute was not applied retroactively, and Donald’s voluntary payment of attorney’s fees mooted that issue.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Appealability / mootness of attorney’s fees award	Donald challenged fee award and appealed.	Luann argued the fee issue is moot because Donald voluntarily paid without a stay.	The order denying modification was appealable; but Donald’s voluntary payment created a presumption of waiver and rendered the fee challenge moot.
Whether there was a material change in circumstances warranting modification	Donald said Luann’s retirement, condo sales, reduced MS symptoms, and other financial changes reduced her need for support.	Luann and the court said evidence did not show a substantial, unanticipated financial change; findings supported denial.	Court’s factual finding of no material change was not clearly erroneous; affirmed.
Whether the 2015 amendment to N.D.C.C. § 14‑05‑24.1(1) (limiting duration) applies to a pre‑2015 support award	Donald argued the 2015 statutory change (per Kaspari) should limit or alter his pre‑existing obligation.	Luann argued the 2015 statute is not retroactive and does not alter pre‑2015 awards.	The statute does not apply retroactively to modify an existing pre‑2015 award; Kaspari was inapplicable here.
Whether Donald’s anticipated/undefined retirement alone suffices as a material change	Donald testified he intends to retire and urged a rule treating anticipated retirement as a material change.	Luann and the court pointed to Donald’s lack of concrete steps (no sale, no retirement date), making future income speculative.	Undefined, speculative retirement was insufficient to prove a material change; the court’s finding was affirmed.

Key Cases Cited

Brummund v. Brummund, 758 N.W.2d 735 (N.D. 2008) (appealability is jurisdictional; Court must address it sua sponte)
Sanderson v. Walsh County, 712 N.W.2d 842 (N.D. 2006) (orders intended to be final may be appealable)
Schulte v. Kramer, 820 N.W.2d 318 (N.D. 2012) (standard for modifying spousal support; material-change burden and clear-error review)
Rothberg v. Rothberg, 727 N.W.2d 771 (N.D. 2007) (definition and limits of material change doctrine)
Schwab v. Zajac, 823 N.W.2d 737 (N.D. 2012) (voluntary payment of a judgment creates a presumption of waiver and may moot an appeal)
Mr. G’s Turtle Mountain Lodge, Inc. v. Roland Twp., 651 N.W.2d 625 (N.D. 2002) (party seeking dismissal for voluntary payment bears burden to show involuntariness)
Sommer v. Sommer, 636 N.W.2d 423 (N.D. 2001) (obligor may move for modification upon retirement; burden to show material change remains)
Ebach v. Ebach, 700 N.W.2d 684 (N.D. 2005) (adopted a multifactor totality-of-the-circumstances test for retirement-related modification)
Kaspari v. Kaspari, 958 N.W.2d 139 (N.D. 2021) (interpreted post-2015 statute for original awards entered after amendment; inapplicable to retroactive change here)
Klein v. Klein, 882 N.W.2d 296 (N.D. 2016) (statutory nonretroactivity principles applied to spousal-support provisions)