Ebach v. Ebach

Decision Date13 July 2005
Docket NumberNo. 20040306.,20040306.
Citation2005 ND 123,700 N.W.2d 684
PartiesLana K. EBACH, Plaintiff and Appellee v. Donald M. EBACH, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Patricia E. Garrity, Bair, Bair & Garrity, LLP, Mandan, ND, for plaintiff and appellee.

Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Donald M. Ebach appealed from an order denying his motion to reduce his spousal support obligation to Lana K. Ebach. We conclude the trial court's finding that Donald failed to show a material change in circumstances caused by his early retirement to justify a termination or reduction of his spousal support obligation is not clearly erroneous. We affirm and remand to the trial court for consideration of Lana's request for attorney fees on appeal.


[¶ 2] Donald and Lana were divorced on September 16, 1997, after more than 30 years of marriage. At the time of the divorce, Lana was 52 years old, was earning $16,495 annually employed as an eligibility worker with Sheridan County Social Services, and had been diagnosed with multiple sclerosis, an incurable "disease to the nervous system affecting sensory, motor, vision, hearing, and mental capacities." van Oosting v. van Oosting, 521 N.W.2d 93, 95 (N.D.1994). Donald was 54 years old and was earning $48,250 annually employed as a service representative with Otter Tail Power Company. The court found "Donald had a knee injury and has high blood pressure but his overall health is good." The court noted that Lana "has had at least five exacerbations of her condition since 1980. While Lana is in relatively good health otherwise, the nature of the disease makes it impossible to predict her future medical condition attributable to [multiple sclerosis]."

[¶ 3] The court found that Donald had a greater earning capacity than Lana, that Lana is less able than Donald to provide for her retirement, and that these factors justified a greater property distribution to Lana. The court awarded Lana a net property distribution of $130,060, and Donald a net property distribution of $127,002. Included in the property distribution was Donald's pension plan with Otter Tail Power which, at the time, had an unknown value. The court explained:

The court adopts the formula described in Bullock v. Bullock, 354 N.W.2d 904 (N.D.1984) to determine Lana's share of Donald's pension plan. Lana is entitled to one-half of the share of the pension plan proceeds attributable to the years of marriage. The exact value of Lana's share will not be known until Donald's retirement. It is computed by dividing the number of years during the marriage where Donald was employed by Otter Tail (31 years) by the total number of years Donald works for Otter Tail. That percentage is then multiplied by the total value of the pension plan at retirement and Lana will receive one-half of that amount. Donald is entitled to the remainder of the pension plan proceeds.

[¶ 4] Because Lana's income from work and her retirement benefits would be less than Donald's, and because of Lana's "precarious" medical condition, the trial court further ordered that Donald pay Lana permanent spousal support of $750 per month "until Lana dies or remarries." The court noted that spousal support may be modified upon a showing of a material change in circumstances, and that a "deterioration in Lana's medical condition or Donald's retirement would, in this court's opinion, constitute such a change of circumstances."

[¶ 5] In August 2004, Donald moved to modify his spousal support obligation because he decided to retire from Otter Tail Power effective February 1, 2005 at the age of 62, and the "Court said when issuing its original opinion that ... spousal support could be reconsidered when [Donald] retires." Donald, whose gross earnings from Otter Tail Power were $65,769 annually at the time of his retirement, argued his spousal support payments should terminate because he would now be receiving only $1,243 per month from his Otter Tail Power pension and $1,270 per month in social security benefits. Donald argued Lana would also begin receiving either $862 or $907 per month from his retirement plan, depending upon which option she chose. Lana would receive the higher monthly payment if she chose the option under which her beneficiaries would receive no benefits upon her death. Donald also argued, "because [Lana] will be making more monthly income than [Donald] after [Donald] retires, the Court would be justified in allowing only $750.00 of the retirement [Lana] gets from [Donald's] retirement to be paid to her, and the rest to [Donald] because his monthly income is less than [Lana's] after he retires." Lana responded and pointed out that Donald had remarried and his spouse earns more than $2,000 per month while Lana has not remarried and her employment income has increased minimally since the divorce. She also argued that Donald was seeking early retirement, that he was in good health and capable of continuing to work at either Otter Tail Power or at other employment, and that she was having bladder problems related to her multiple sclerosis that were becoming worse.

[¶ 6] A hearing was held before a judge other than the judge who presided over the parties' divorce proceeding. During the hearing, Donald testified that he has diabetes, high blood pressure, high cholesterol, and hearing and dental problems. He testified he was having problems performing his meter-reading duties at Otter Tail Power because of the amount of walking required in cold weather. Donald further testified that, because Lana cannot receive any of his retirement benefits until he actually retires, Lana would receive approximately $5,400 more if he retired at age 62 rather than at age 65, even if the spousal support payments were terminated.

[¶ 7] The trial court denied Donald's motion, reasoning:

Donald has an obligation to support his ex-spouse. He has the ability to work until he is at the customary retirement age of 65. His health is average for a person of his age. He has failed, in the very least, to demonstrate how his health problems would prevent him from performing his job. He is financially secure, having a pension and tapping his social security benefits. The potential harm to Lana in losing support is much more severe than the selfish benefit it would give Donald.
The Court finds there has not been a showing of any material change in circumstances. The only material change was self-induced by Donald. He has not proved his burden to this Court that the early retirement was reasonable and done in good faith.

[¶ 8] On appeal, Donald argues the trial court erred in denying the motion to reduce his spousal support obligation.

[¶ 9] When there has been an initial award of spousal support, the trial court retains jurisdiction and may modify the award at least as long as support continues. Meyer v. Meyer, 2004 ND 89, ¶ 5, 679 N.W.2d 273. The party seeking modification of spousal support bears the burden of showing a material change in circumstances warrants modification. Quamme v. Bellino, 2002 ND 159, ¶ 14, 652 N.W.2d 360. A material change in circumstances is something that substantially affects the parties' financial abilities or needs, and the reasons for the changes in income must be examined as well as the extent to which the changes were contemplated by the parties at the time of the initial decree. Schmalle v. Schmalle, 1998 ND 201, ¶ 12, 586 N.W.2d 677. Not every financial change in circumstances justifies a modification, and if a change is self-induced, no modification is warranted. Schmitz v. Schmitz, 2001 ND 19, ¶ 8, 622 N.W.2d 176.

[¶ 10] A trial court's determination of whether there has been a material change in circumstances is a finding of fact and will not be reversed on appeal unless it is clearly erroneous. Gibb v. Sepe, 2004 ND 227, ¶ 7, 690 N.W.2d 230. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or this Court, upon review of all the evidence, is left with a definite and firm conviction a mistake has been made. Id.


[¶ 11] In Sommer v. Sommer, 2001 ND 191, ¶ 20, 636 N.W.2d 423, this Court said "voluntary retirement by a supporting spouse that results in a material change in circumstances may, under some circumstances, be a valid basis for modification of spousal support." In Sommer, at ¶ 17, the appellant argued the trial court erred by not providing in the divorce judgment for the elimination or reduction of spousal support upon his retirement. We held the appellant was not precluded from bringing a motion for modification of spousal support based upon his voluntary retirement, but the trial court did not err in refusing to provide in the divorce judgment for an automatic reduction. Id. at ¶¶ 20, 21. We left "open the secondary question of what a supporting spouse must show to actually succeed on a motion for modification based on the supporting spouse's voluntary retirement until this issue is presented to us." Id. at ¶ 20 n. 2.

[¶ 12] The parties and the trial court mainly relied upon the case law cited in Sommer, 2001 ND 191, ¶ 20,636 N.W.2d 423, in assessing whether Donald's voluntary retirement justified a modification of spousal support. See Pimm v. Pimm, 601 So.2d 534, 537 (Fla.1992); In re Marriage of Smith, 77 Ill.App.3d 858, 33 Ill.Dec. 332, 396 N.E.2d 859, 863-64 (1979); Smith v. Smith, 419 A.2d 1035, 1038 (Me.1980); Silvan v. Sylvan, 267 N.J.Super. 578, 632 A.2d 528, 530 (App.Div.1993); Deegan v. Deegan, 254 N.J.Super. 350, 603 A.2d 542, 545-46 (App.Div.1992). These courts have adopted a totality-of-the-circumstances analysis and have set forth similar non-exclusive factors for consideration:

There are a variety of factors which should be considered in analyzing whether such changed circumstances do, in fact, exist as would justify a modification of [spousal support]. A court may consider,

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11 cases
  • Burris v. Burris
    • United States
    • North Dakota Supreme Court
    • 31 Marzo 2022
    ...North Dakota's legal test for modification of spousal support due to voluntary retirement traces its origins to Sommer and Ebach v. Ebach , 2005 ND 123, 700 N.W.2d 684. Both Sommer and Ebach relied on cases from Florida, Illinois, Maine and New Jersey. As discussed below, the New Jersey cas......
  • Berg v. Berg
    • United States
    • North Dakota Supreme Court
    • 22 Marzo 2018
    ...646. The district court and this Court have concurrent jurisdiction to award attorney fees for an appeal in a divorce proceeding. Ebach v. Ebach , 2005 ND 123, ¶ 21, 700 N.W.2d 684. When attorney fees are requested on appeal, we often prefer to have the district court determine the appropri......
  • Schmuck v. Schmuck
    • United States
    • North Dakota Supreme Court
    • 26 Mayo 2016
    ...attorney fees for an appeal in divorce proceedings, we prefer the trial court to consider whether attorney fees are appropriate.” Ebach v. Ebach, 2005 ND 123, ¶ 21, 700 N.W.2d 684 (citing Dvorak v. Dvorak, 2005 ND 66, ¶ 33, 693 N.W.2d 646 ). In the divorce judgment, each party was ordered t......
  • Rothberg v. Rothberg
    • United States
    • North Dakota Supreme Court
    • 28 Febrero 2007
    ...the amount of spousal support ordered is a factor in deciding whether a material change of circumstances has occurred. See, e.g., Ebach v. Ebach, 2005 ND 123, ¶ 12, 700 N.W.2d 684; Gibb v. Sepe, 2004 ND 227, ¶ 10, 690 N.W.2d 230; see also Rothberg, 2006 ND 65, ¶ 11, 711 N.W.2d 219 ("A mater......
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