Lizakowski v. Lizakowski, 20160072

• Court: United States State Supreme Court of North Dakota
• Citation: 893 N.W.2d 508
• Docket Number: No. 20160072,20160072
• Parties: Laura Ann LIZAKOWSKI, Plaintiff and Appellee v. Chad Allen LIZAKOWSKI, Defendant and Appellant
• Decision Date: 25 April 2017

893 N.W.2d 508

Laura Ann LIZAKOWSKI, Plaintiff and Appellee
v.
Chad Allen LIZAKOWSKI, Defendant and Appellant

No. 20160072

Supreme Court of North Dakota.

Filed April 25, 2017

Patti J. Jensen, 411 Second Street N.W., Suite D, P.O. Box 386, East Grand Forks, MN 56721–0386, for plaintiff and appellee.

Jacey L. Johnston (argued) and DeWayne A. Johnston (appeared), 221 South Fourth Street, Grand Forks, ND 58201, for defendant and appellant.

Kapsner, Justice.

¶ 1] Chad Lizakowski appeals from a divorce judgment distributing marital property and awarding spousal support and attorney fees. We affirm the district court's distribution of marital property and award of spousal support. We reverse the district court's award of attorney fees and remand for reconsideration of Chad Lizakowski's request for attorney fees.

I

[¶ 2] The parties married on September 9, 2000. Laura Lizakowski met Chad Lizakowski roughly four years before she began medical school in 2001. When the parties met, Chad Lizakowski worked delivering newspapers and did side work as a finish carpenter. Laura Lizakowski, already having a nursing degree, continued to work part-time during part of medical school. Chad Lizakowski continued delivering newspapers and doing finish carpentry work until they relocated to Marshfield, Wisconsin for Laura Lizakowski's medical training. While in Wisconsin, Chad Lizakowski worked odd jobs as a finish carpenter. He also made improvements to the home purchased in Wisconsin. After Laura Lizakowski had completed her medical training in July 2007, the parties moved back to Grand Forks, North Dakota. The parties' minor child was born roughly a month before the move. The parties sold the home purchased in Wisconsin and used the proceeds to purchase a home in Grand Forks. Chad Lizakowski remained home with the child and made improvements to the parties' home in Grand Forks. Neither party provided valuation for the improvements Chad Lizakowski made on the homes in which the parties resided

[893 N.W.2d 512

during the marriage. Prior to the parties' marriage, Chad Lizakowski owned a vehicle, recreational vehicles, and other personal property including a trailer and tools, but the parties did not offer a value for this property at the time of the marriage.

¶ 3] Laura Lizakowski filed for divorce on January 2, 2015. Neither party contests the district court's conclusions on residential responsibility or child support. Chad Lizakowski is employed as a maintenance technician at a property management company. Laura Lizakowski is employed as a medical doctor. An amended interim order was entered on March 25, 2015. Among other things, the interim order awarded interim spousal support to Chad Lizakowski in the amount of $1,500.00 per month.

[¶ 4] The district court entered the divorce judgment on January 6, 2016. The court awarded the parties a divorce, equal residential responsibility, offset child support, awarded spousal support and a portion of attorney fees to Chad Lizakowski, and ordered an equitable distribution of the marital property and debt. Offsetting child support resulted in an award of child support of $1,572.00 per month to Chad Lizakowski. The court also awarded $1,000.00 per month in rehabilitative spousal support for twenty-four months and $7,000.00 in attorney fees to Chad Lizakowski. As part of its equitable distribution of marital property, the district court ordered Laura Lizakowski to pay a cash property distribution payment of $100,000.00 to Chad Lizakowski within 180 days of entry of judgment. Accounting for the post judgment cash equalization payment, there was a net asset allocation of $241,487.00 to Laura Lizakowski and $242,548.00 to Chad Lizakowski. As part of the property distribution, Laura Lizakowski was awarded the marital home and was directed to eliminate Chad Lizakowski as a responsible party on the home mortgage within ninety days of entry of judgment. If unable to refinance the home mortgage, Laura Lizakowski was directed to list the marital home for sale and pay off all debts against the property.

[¶ 5] Chad Lizakowski filed a notice of appeal on February 22, 2016. On February 26, 2016, Laura Lizakowski filed a motion to dismiss with this Court. On March 14, 2016, Chad Lizakowski filed a brief opposing the motion to dismiss.

II

[¶ 6] Laura Lizakowski argues Chad Lizakowski's appeal should be dismissed because he accepted a substantial benefit of the judgment. Specifically, Chad Lizakowski filed a qualified domestic relations order for the court ordered transfer of a 401K account awarded as part of the district court's property allocation. In addition, Laura Lizakowski argues Chad Lizakowski's acceptance of the $7,000.00 award of attorney fees and spousal support constitutes an acceptance of a substantial benefit of the judgment and waives his right to an appeal.

[¶ 7] "A party moving to dismiss an appeal must clearly establish waiver of the right to appeal by the other party." Sommers v. Sommers , 2003 ND 77, ¶ 5, 660 N.W.2d 586. Generally, an individual that unconditionally, voluntarily, and consciously accepts a substantial benefit from a divorce judgment waives the right to appeal the judgment. DeMers v. DeMers , 2006 ND 142, ¶ 27, 717 N.W.2d 545. This Court explained in Sommers :

This court has sharply limited the rule in domestic cases to promote a strong policy in favor of reaching the merits of an appeal. Before a waiver of the right to appeal can be found, there must be an unconditional, voluntary, and conscious acceptance of a substantial benefit under

[893 N.W.2d 513

the judgment. The party objecting to the appeal has the burden of showing the benefit accepted by the appealing party is one which the party would not be entitled to without the decree. There must be unusual circumstances, demonstrating prejudice to the movant, or a very clear intent on the part of the appealing party to accept the judgment and waive the right to appeal, to keep this court from reaching the merits of the appeal.

2003 ND 77, ¶ 5, 660 N.W.2d 586.

[¶ 8] The presence of court imposed deadlines for payment of a judgment supports a conclusion a litigant has not unconditionally, voluntarily, and consciously accepted a substantial benefit of a judgment. In DeMers , the district court ordered a husband to pay the wife $5,350.00 within thirty days as part of the property distribution. 2006 ND 142, ¶¶ 26, 28, 717 N.W.2d 545. The wife accepted the payment and the husband moved to dismiss the appeal. Id . This Court determined the district court had made time of the essence by putting time limitations on the property distribution and concluded the wife did not consciously accept the benefit or waive her right to appeal. Id . at ¶ 28.

[¶ 9] "A spousal support recipient's acceptance of spousal support payments is not a waiver of the right to appeal a judgment and is not inconsistent with a claim on appeal that he or she should have been awarded more support." Sommers , 2003 ND 77, ¶ 6, 660 N.W.2d 586. In Sommers , the husband argued the wife waived her right to appeal because she accepted spousal support payments after the notice of appeal was filed. Id . at ¶ 4. This Court concluded the husband failed to clearly establish the wife waived her right to appeal because the wife was seeking additional spousal support and the husband was not seeking to reduce spousal support. Id . at ¶ 6. This Court has also stated, "[a]cceptance of part of the cash award ... denominated as a property settlement, is not inconsistent with [the appellant's] claim in her appeal on the merits that the award should have been larger." Sanford v. Sanford , 295 N.W.2d 139, 142 (N.D. 1980).

¶ 10] In this case, Chad Lizakowski has accepted spousal support, attorney fees, and initiated the transfer of a 401K account to his name by filing a qualified domestic relations order with the district court. Because Chad Lizakowski seeks a larger award of spousal support on appeal, his acceptance of spousal support payments did not constitute a waiver of the right to appeal. Sommers , 2003 ND 77, ¶ 6, 660 N.W.2d 586. The acceptance of attorney fees in this case also did not constitute an acceptance of a substantial benefit or waive his right to appeal. The district court ordered Laura Lizakowski to pay the attorney fees within thirty days of entry of judgment. Similar to DeMers , the district court's placement of a deadline on the payment results in the conclusion Chad Lizakowski did not consciously accept the benefit or waive his right to appeal the issue. DeMers , 2006 ND 142, ¶ 28, 717 N.W.2d 545. Chad Lizakowski also seeks an increase in the award of attorney fees, and acceptance of a time limited payment of fees is not inconsistent with an appeal seeking additional attorney fees. Sommers , 2003 ND 77, ¶ 6, 660 N.W.2d 586. While the transfer of the 401K account was not time sensitive, acceptance of a portion of the property settlement in this case is not inconsistent with Chad Lizakowski's claim seeking a larger property distribution. See Sanford , 295 N.W.2d at 142. We conclude Chad Lizakowski did not waive his right to appeal in this case and deny Laura Lizakowski's motion to dismiss this appeal.

[893 N.W.2d 514

III

[¶ 11] Chad Lizakowski argues the district court erred in its distribution of marital property. Chad Lizakowski contends the court failed to consider or acknowledge a number of contributions he made to...