Lizakowski v. Lizakowski
2017 ND 91
| N.D. | 2017Background
- Married in 2000; wife (Laura) became a physician and had higher earning capacity; husband (Chad) performed carpentry, home improvements, and child care at times and had lower earnings. Parties have one minor child.
- Laura filed for divorce in January 2015; interim order awarded Chad $1,500/month spousal support. Judgment (Jan 6, 2016) awarded joint custody, offset child support to Chad ($1,572/month), rehabilitative spousal support to Chad ($1,000/month for 24 months), a $100,000 cash equalization payment to Chad, near-equal net property division, and $7,000 in attorney fees to Chad.
- Chad appealed the property division, spousal support, and attorney-fees award. Laura moved to dismiss the appeal, arguing Chad accepted substantial benefits (spousal support, attorney-fee payment, and a 401(k) transfer). Court denied the dismissal.
- On appeal the Supreme Court of North Dakota affirmed the property division and spousal-support award but reversed the attorney-fees award and remanded for reconsideration.
- District court found (and the Supreme Court accepted) a significant income disparity, that Chad had self-limited his earning capacity, that both parties contributed to litigation costs, and that Laura’s discovery conduct increased Chad’s fees.
Issues
| Issue | Plaintiff's Argument (Laura) | Defendant's Argument (Chad) | Held |
|---|---|---|---|
| Whether Chad waived his right to appeal by accepting benefits under the judgment | Chad accepted spousal support, attorney fees, and initiated 401(k) transfer; these are substantial benefits and waive appeal | Acceptance was time-limited or consistent with seeking more on appeal; accepting some distributions does not waive appeal | Denied motion to dismiss; Chad did not waive appeal because payments were time-limited or consistent with seeking greater relief (Sommers/DeMers principles) |
| Whether property division was equitable | Laura argued district court properly weighed Ruff-Fischer factors and awarded near-equal net distribution with larger debts allocated to her | Chad argued court undervalued his homemaking, child care, and renovation contributions and overemphasized his lack of educational advancement | Affirmed; distribution not clearly erroneous—court adequately considered Ruff-Fischer factors and rationale discernible |
| Whether spousal support award was appropriate (rehabilitative $1,000/mo for 24 months) | Laura supported rehabilitative award given disparity and property award favorability to Chad | Chad sought permanent or larger support and argued amount forces depletion of assets | Affirmed; award not clearly erroneous—court reasonably relied on income disparity, property division, Chad’s self-limitation, and rehabilitative preference |
| Whether district court erred in awarding only $7,000 in attorney fees to Chad | Laura did not contest $7,000 and urged affirmance | Chad argued fees inadequate given his inability to pay and Laura’s discovery misconduct that increased his fees | Reversed and remanded: trial court abused discretion by awarding only $7,000 because it misapplied law by over-weighting Chad’s self-limitation and its findings did not rationally support the small award; remand for reconsideration of fees |
Key Cases Cited
- Sommers v. Sommers, 660 N.W.2d 586 (N.D. 2003) (acceptance of benefits waives appeal only if unconditional, voluntary, and conscious; rule narrowly applied)
- DeMers v. DeMers, 717 N.W.2d 545 (N.D. 2006) (time-limited payments may indicate no waiver of appeal)
- Rebel v. Rebel, 882 N.W.2d 256 (N.D. 2016) (Ruff-Fischer factors required for equitable property division; court must explain rationale)
- Kosobud v. Kosobud, 817 N.W.2d 384 (N.D. 2012) (standard of review for property division; long-term marriages support equal division)
- Krueger v. Krueger, 748 N.W.2d 671 (N.D. 2008) (court need not make findings on every spousal-support factor if rationale is discernible)
- Walstad v. Walstad, 837 N.W.2d 911 (N.D. 2013) (attorney-fee awarding standard and discretion under N.D.C.C. § 14-05-23)
- Wanttaja v. Wanttaja, 873 N.W.2d 911 (N.D. 2016) (attorney-fee awards require specific findings on finances, needs, property liquidity)
- Reiser v. Reiser, 621 N.W.2d 348 (N.D. 2001) (factors to consider in attorney-fee awards in divorce)
- Jorgenson v. Ratajczak, 592 N.W.2d 527 (N.D. 1999) (party need not dissipate property award for living expenses when assessing fee awards)