Smestad v. State
2011 ND 163
| N.D. | 2011Background
- Daniel and Karen Leverson divorced in 2005 after nearly 34 years of marriage; divorce judgment incorporated their settlement agreement.
- Property division awarded Karen a daycare building on contract for deed and assumed the related debt; Daniel received the family home, a Fargo property, and debts on two mortgages, plus business interests in two restaurants subject to debts.
- Section 9 of the judgment mandated spousal support: Daniel pay Karen $3,000 monthly until death or remarriage, with adjustments for Social Security and Karen’s health insurance costs.
- Karen obtained a $41,621.33 money judgment in 2009 for unpaid spousal support; Daniel moved to reduce his obligation but the district court denied.
- The district court later treated the spousal support as part of the property division, declining modification, and Daniel was found in contempt for nonpayment, leading to appeal.
- This Court held the spousal support award is not part of the property division and remanded to determine if a material change in circumstances justifies modification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the spousal support award was part of property division. | Leverson argues the award is part of property division and not modifiable. | Leverson contends the award is spousal support and modifiable. | Not part of property division; it is modifiable spousal support. |
| Whether a material change of circumstances justifies modifying spousal support. | Leverson asserts his restaurant profits declined; change warrants modification. | Leverson claims no sufficient personal or business change supports modification. | Remand to determine if a material change justifies modification. |
| Whether law-of-the-case precludes reconsideration of the spousal support characterization. | Daniel argues law-of-the-case prevents recharacterization as a non-modifiable property division. | Karen contends the March 2010 ruling did not resolve the issue; law-of-the-case does not bar review. | Law-of-the-case does not preclude reconsideration; issue open on remand. |
Key Cases Cited
- Kannianen v. White, 2010 ND 170 (ND) (clarifies interpretation of merged settlement vs. underlying contract)
- Serr v. Serr, 2008 ND 56 (ND) (unambiguous judgments may not be modified; interpretation of judgments is law)
- Baker v. Baker, 1997 ND 135 (ND) (monthly, unsecured, and event-based spousal support attributes indicate true spousal support)
- Gustafson v. Gustafson, 2008 ND 233 (ND) (property division and spousal support are intertwined and should be considered together)
- Ebach v. Ebach, 2008 ND 187 (ND) (burden to show material change in financial circumstances for modification)
- Nuveen v. Nuveen, 2011 ND 44 (ND) (interrelation of property and support considerations in divorce)