Burris v. Burris
2022 ND 67 (2022)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An obligor's indefinite and speculative intention to retire at some future point, without concrete steps taken towards retirement, does not constitute a material change in circumstances sufficient to modify a spousal support obligation. Furthermore, a party who voluntarily pays a court-ordered award, such as attorney's fees, waives the right to appeal that specific award.
Facts:
- Donald Burris and Luann Burris divorced in 2006.
- The 2006 divorce judgment ordered Donald Burris to pay permanent spousal support to Luann Burris, continuing until further court order.
- Following the divorce, Luann Burris retired and sold two condominiums.
- Donald Burris asserted that Luann Burris's multiple sclerosis symptoms had decreased.
- Donald Burris testified that he intends to retire in the future, but as of the hearing, he had not sold his business or set a specific date for his retirement.
Procedural Posture:
- Donald Burris and Luann Burris were divorced by a judgment in a North Dakota district court (court of first instance) in 2006.
- In 2020, Donald Burris filed a motion in the district court to eliminate or reduce his spousal support obligation.
- The district court denied Donald Burris's motion.
- The district court ordered Donald Burris to pay Luann Burris's attorney's fees for misconduct during the litigation.
- Donald Burris paid the attorney's fees as ordered by the court.
- Donald Burris, as appellant, appealed the district court's order denying his motion to the Supreme Court of North Dakota, the state's highest court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does an obligor's stated intention to retire at an unspecified future date, without having sold their business or set a retirement date, constitute a material change in circumstances sufficient to warrant the modification or elimination of a permanent spousal support obligation?
Opinions:
Majority - Jensen, Chief Justice
No. An obligor's vague and undefined future retirement is insufficient to prove a material change in circumstances. The court found that Donald Burris had taken no concrete steps to retire, such as selling his business or setting a date, which made any determination of his post-retirement income purely speculative. To modify spousal support, the moving party must demonstrate a material change in financial circumstances that was not contemplated at the time of the original decree; a potential future change is not sufficient. The court also held that the 2015 statutory amendment limiting the duration of spousal support does not apply retroactively to the 2006 judgment. Finally, the issue of attorney's fees was rendered moot because Donald Burris voluntarily paid the award, thereby waiving his right to appeal it.
Concurring - Crothers, Justice
Yes, based on existing precedent, the majority is correct that an undefined retirement plan is insufficient. However, the current legal framework for modifying spousal support upon retirement is flawed. The existing multifactor, 'totality of the circumstances' test creates significant uncertainty and unpredictability for both obligors and obligees. This 'ad hoc' application of the law should be re-examined. The New Jersey cases that form the basis of North Dakota's precedent have been superseded by a statute creating a rebuttable presumption that spousal support terminates upon reaching full retirement age. The legislature or the court, in a future case, should consider adopting a more predictable standard similar to reforms in other states to reduce litigation and provide clearer guidance.
Analysis:
This decision reinforces the high threshold required to modify permanent spousal support in North Dakota, clarifying that a mere intention to retire is legally insufficient without concrete, non-speculative actions. It also affirms the strong presumption against the retroactive application of statutory amendments affecting substantive rights. The special concurrence by Justice Crothers is significant, as it signals judicial frustration with the current unpredictable legal standard for retirement-based modifications and serves as a strong invitation for legislative reform or future judicial re-evaluation of the precedent established in cases like Ebach v. Ebach.
