801 N.W.2d 740
N.D.2011Background
- Daniel W. Leverson appeals a district-court order denying termination or reduction of spousal support to Karen K. Leverson.
- Divorce in 2005 resulted in a judgment incorporating the parties' settlement agreement and a division of marital property.
- Karen was awarded a daycare building and responsibility for related debt; Daniel received the family home, Fargo property, and interests in two restaurants.
- Section 9 of the divorce judgment ordered Karen to receive $3,000 per month in spousal support, with adjustments for Social Security and health-insurance costs.
- Karen obtained a $41,621.33 money judgment in 2009 for unpaid spousal support; Daniel sought modification based on diminished restaurant profitability.
- The district court initially denied modification, then contempt proceedings arose; at issue is whether the spousal support award is modifiable or part of a non-modifiable property division.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether spousal support was part of the property division and not modifiable | Leverson argues the award is not property division and is modifiable | Leverson contends the award is part of property distribution and non-modifiable | The award is spousal support, not property division, thus modifiable |
| If modifiable, whether there was a material change in circumstances | Leverson claims a material change in financial circumstances supports modification | Leverson's changes were primarily business-related; court should still require proof of material change | Yes, remand for factual findings on material change of circumstances |
Key Cases Cited
- Ebach v. Ebach, 2008 ND 187 (ND 2008) (burden to prove material change in financial circumstances for modification; standard of review as fact)
- Kannianen v. White, 2010 ND 170 (ND 2010) (settlement agreement incorporated into judgment interpreted as spousal support, not property division)
- Baker v. Baker, 1997 ND 135 (ND 1997) (attributes of spousal support; payments are spousal, not property division)
- Gustafson v. Gustafson, 2008 ND 233 (ND 2008) (property division and spousal support are interrelated and intertwined)
- Serr v. Serr, 2008 ND 56 (ND 2008) (interpretation of judgments; merge/contract rule for settlement agreements)