Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
N.D. Supreme CourtLeverson v. Leverson,
This opinion is subject to petition for rehearing. [Go to Documents]
[Download as WordPerfect] Concurrence filed.
Opinion of the Court by Kapsner, Justice.
[¶1] Daniel W. Leverson appeals from an order denying his motion to terminate or reduce his spousal support obligation to Karen K. Leverson. We conclude the district court erred in ruling an award of spousal support to Karen Leverson under the parties' settlement agreement incorporated into the divorce judgment was part of the marital property distribution which could not be modified. We reverse the order and remand to the district court to address whether Daniel Leverson established that a material change of circumstances has occurred to justify modification of his spousal support obligation.
[¶2] Daniel and Karen Leverson divorced in 2005 after a nearly 34-year marriage. The divorce judgment incorporated the terms of the parties' settlement agreement. As part of the division of marital property, Karen Leverson was awarded a daycare building in Mandan the parties were purchasing on a contract for deed, and she was given the responsibility for the debt remaining on the contract for deed. Daniel Leverson was also ordered to pay Karen Leverson $30,000. Daniel Leverson was awarded the parties' family home in Bismarck and a parcel of property in Fargo, and he was given responsibility for the debts remaining on the two mortgages. Daniel Leverson was also awarded the parties' interests in two successful restaurant businesses in Bismarck and Fargo, subject to all debts on the businesses.
[¶3] Section 9 of the divorce judgment addresses spousal support and provides:
9. Spousal Support. Upon entry of Judgment, Dan shall pay Karen $3,000 per month for spousal support until she dies or remarries, whichever comes first. Karen agrees payment of said amount may be split equally between one payment on the first day of each month and the other on the 15th. At the time that Karen begins to draw Social Security or is age 65, whichever comes first, the $3,000 will be reduced by the amount of her Social Security payment. Dan shall pay the cost of the premium for Karen's health insurance until she dies or remarries or if it becomes available to Karen at no cost or nominal cost, whichever comes first. Dan's income shall be subject to immediate income withholding pursuant to N.D.C.C. § 14-05-25.2. All spousal support payments shall be made payable to the State Disbursement Unit, P.O. Box 7280, Bismarck, ND 58507-7280, as trustee for remittance to Karen, and shall be paid in a form acceptable to the State Disbursement Unit.
[¶4] After Karen Leverson sought and ultimately obtained a $41,621.33 money judgment in November 2009 against Daniel Leverson for unpaid spousal support, Daniel Leverson moved to reduce his spousal support obligation. Daniel Leverson claimed he could no longer pay the ordered spousal support because the profitability of his restaurants had been substantially reduced by increased competition and a poor economy. In denying the motion in March 2010, the district court noted, "[i]n exchange for surrendering all of her interest in both businesses and all real and personal property associated with them, Daniel agreed to pay Karen $3,000 per month in spousal support offset by any amount of Social Security Karen receives when she begins to draw Social Security." The court found, "[w]hile there is a material change of circumstances in the business tax revenues for his two businesses, he has not met his burden of proof as to any negative personal change of circumstances." Daniel Leverson did not appeal the court's order denying his motion.
[¶5] In July 2010, Karen Leverson filed a motion to hold Daniel Leverson in contempt for his continued failure to remain current on his spousal support obligation. In August 2010, Daniel Leverson, through a different attorney, moved to terminate or reduce his spousal support obligation. Daniel Leverson presented additional evidence in an attempt to establish that his restaurant businesses were losing money because of "[d]ecreased volume" and "increased competition." Daniel Leverson presented a recent personal financial statement and testified the Fargo restaurant had closed and the Bismarck restaurant was "currently up for sale and there is a sale pending on the property." After expressing ...