from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Lolita G. Hartl
IN PART, REVERSED IN PART, AND REMANDED.
J. Jensen, Second Street N.W., for plaintiff and appellee.
L. Johnston (argued) and DeWayne A. Johnston (appeared), for
defendant and appellant.
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.
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 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
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.
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
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 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, ...