Burris v. Burris

• Decision Date: 31 March 2022
• Docket Number: 20210178
• Citation: 972 N.W.2d 103
• Parties: Donald George BURRIS, Plaintiff and Appellant v. Luann BURRIS, Defendant and Appellee
• Court: North Dakota Supreme Court

972 N.W.2d 103

Donald George BURRIS, Plaintiff and Appellant

v.Luann BURRIS, Defendant and Appellee

No. 20210178

Supreme Court of North Dakota.

FILED MARCH 31, 2022

DeWayne A. Johnston, Grand Forks, ND, for plaintiff and appellant.

Scott D. Jensen, Grand Forks, ND, for defendant and appellee.

Jensen, Chief Justice.

[¶1] Donald Burris appeals from a district court order denying his motion to eliminate or reduce spousal support paid to Luann Burris. Donald Burris asserts the court erred in determining there had not been a material change in circumstances, erred as a matter of law in not applying a 2015 statutory change, erred in not considering his future retirement, and erred awarding Luann Burris attorney's fees. We affirm.

I

[¶2] Donald Burris and Luann Burris were divorced in 2006. The judgment entered at that time ordered Donald Burris to pay Luann Burris permanent spousal support "continuing until further order of the Court."

[¶3] In 2020, Donald Burris moved to eliminate or reduce his spousal support obligation. The district court denied the motion. Citing misconduct during the course of litigation on the motion, the court ordered Donald Burris to pay Luann Burris's attorney's fees. The district court did not enter a new judgment or amend the prior judgment. Donald Burris paid the attorney's fees as ordered and initiated this appeal.

II

[¶4] "The right to appeal is a jurisdictional matter and, even if the parties do not raise the issue of appealability, we must dismiss the appeal on our own motion if we conclude we do not have jurisdiction." Brummund v. Brummund , 2008 ND 224, ¶ 4, 758 N.W.2d 735 (citing references omitted). Though neither party raised the issue of appealability of the order, we must first consider whether this appeal is properly before the Court. Luann Burris asserts Donald Burris's appeal related to attorney's fees is moot because he already paid the fees.

A

[¶5] The district court denied Donald Burris's motion to modify or reduce his spousal support obligation. The court issued an order without entering a new judgment or amending the existing judgment.

[¶6] An appeal may be properly before this Court if the order was intended to be final. See Sanderson v. Walsh County , 2006 ND 83, ¶ 4, 712 N.W.2d 842 (collecting cases). The right to appeal an order is statutory and governed by N.D.C.C. § 28-27-02. Section 28-27-02(1), N.D.C.C., provides that "[a]n order affecting a substantial right made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken" is appealable. An order denying the elimination or modification of a spousal support obligation affects a substantial right, was the final action required to resolve the pending controversy, and did not require a new or amended judgment. The appeal is properly before this Court.

B

[¶7] Donald Burris paid the attorney's fees awarded to Luann Burris without seeking a stay or posting a bond pending appeal. Luann Burris argues the payment of the attorney's fees renders the issue moot.

[¶8] This Court has held the following regarding mootness created by voluntary compliance with a judgment:

"We will dismiss an appeal if the issues become moot or academic and no actual controversy is left to be determined." Ramsey Fin. Corp. v. Haugland , 2006 ND 167, ¶ 8, 719 N.W.2d 346. "An actual controversy no longer exists when the issue has been rendered moot by a lapse of time, or the occurrence of related events which make it impossible for a court to grant effective relief." Id. "[A] party who voluntarily pays a judgment against him waives the right to appeal from the judgment." Id. at ¶ 9. "[V]oluntary acquiescence in a judgment also constitutes a waiver of the right to appeal." Id. "[P]ayment or acquiescence under coercion or duress does not constitute a waiver." Id. at ¶ 10. "[W]hether a judgment has been voluntarily paid depends upon the facts and circumstances of each particular case, and the party seeking dismissal of the appeal bears the burden of showing the judgment was paid voluntarily." Mr. G's Turtle Mountain Lodge, Inc. v. Roland Twp. , 2002 ND 140, ¶ 13, 651 N.W.2d 625. "A showing that the judgment has been paid, however, creates a presumption that the payment was voluntary." Id.

Schwab v. Zajac , 2012 ND 239, ¶ 8, 823 N.W.2d 737. See also Hoverson v. Hoverson , 2015 ND 38, ¶¶ 23-25, 859 N.W.2d 390.

[¶9] Donald Burris paid the attorney's fees as directed in the final appealable order of the district court. The payment itself created a presumption it was made voluntarily and Donald Burris has not directed us to any part of the record which would suggest the payment was involuntary. We conclude Donald Burris's voluntary payment of the award of attorney's fees rendered the issue moot and was a waiver of his right to appeal.

III

[¶10] Donald Burris challenges the district court's factual finding there has not been a material change in circumstances warranting modification or elimination of the spousal support obligation. Our review of a court's decision on a motion to modify spousal support is well-established:

When the original divorce judgment includes an award of spousal support, the district court retains jurisdiction to modify the award. The party seeking modification of spousal support bears the burden of proving there has been a material change in the financial circumstances of the parties warranting a change in the amount of support. The district court's determination whether there has been a material change in circumstances warranting modification of spousal support is a finding of fact and will be set aside on appeal only if it is clearly erroneous.

A material change is a change that substantially affects the financial abilities or needs of the parties and that was not contemplated by the parties at the time of the original decree. In assessing whether a material change has occurred, the reasons for changes in the parties’ income or needs must be examined, as well as the extent to which the changes were contemplated by the parties at the time of the initial decree. Not every change in the parties’ financial circumstances justifies modification of spousal support, and no modification is warranted when the change is self-induced.

Schulte v. Kramer , 2012 ND 163, ¶ 10, 820 N.W.2d 318 (quoting Rothberg v. Rothberg , 2007 ND 24, ¶ 6, 727 N.W.2d 771 ). This Court does not reweigh evidence or make credibility determinations. Green v. Swiers , 2018 ND 258, ¶ 4, 920 N.W.2d 471 (quoting reference omitted). "A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made." Schulte , at ¶ 15 (citing reference omitted).

[¶11] Donald Burris asserts the district court erred in failing to find a material change in circumstances as a result of Luann Burris's retirement, his assertion Luann Burris could invest or spend money from the sale of two condominiums to decrease her debt and minimize her need for support, and his assertion Luann Burris's multiple sclerosis symptoms have decreased. He also argues the court erred in its findings regarding his income and net worth, and its finding related to Luann Burris's rental payment made to her son. The court provided a comprehensive order, provided detailed findings, and compared its current factual findings to the factual findings in the original spousal support determination. Donald Burris's challenge to the factual findings amounts to a request this Court reweigh the evidence on appeal. We conclude the court's findings of fact are not clearly erroneous, there is evidence in the record to support the findings, and we are not left with a definite and firm conviction a mistake has been made. We affirm the factual finding that Donald Burris failed to prove a material change in circumstances warranting modification of his spousal support obligation.

IV

[¶12] Donald Burris testified he intends to retire. He urges this Court to adopt a standard allowing an anticipated retirement to constitute a material change in circumstances.

[¶13] It is not necessary to determine whether an anticipated retirement can ever be sufficient to support a material change in circumstances. Here, Donald Burris testified he has made no effort to sell his business or set a date for retirement. The district court found Donald Burris had made no efforts to retire and also found that any determination of his post-retirement income would be speculative. We conclude the court's findings of fact are not clearly erroneous, there is evidence in the record to support the findings, and we are not left with a definite and firm conviction a mistake has been made. We affirm the factual finding that Donald Burris's undefined future retirement was insufficient to prove a material change in circumstances.

V

[¶14] The judgment provides Donald Burris's spousal support obligation will continue "until further order of the Court." The district court's authority to award spousal support is provided by N.D.C.C. § 14-05-24.1(1), which provides:

Taking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for a limited period of time in accordance with this section. The court may modify its spousal support orders.

The current version of this statute, quoted above, became effective on August 1, 2015. The prior version of the statute allowed the district court to order spousal support for "any period of time" rather than "a limited period of time." See 2015 N.D. Sess. Laws ch. 124, § 1.

[¶15] Section 1-02-10, N.D.C.C., provides that, "[n]o part of this code is retroactive unless it is expressly declared to be so." Section 14-05-24.1, N.D.C.C., does not provide for retroactive effect. See e.g. , Klein v. Klein , 2016 ND 153, ¶¶ 4-12, 882 N.W.2d 296 (discussing in detail...