from the District Court of Stark County, Southwest Judicial
District, the Honorable Dann E. Greenwood, Judge.
D. Ramsey, Dickinson, ND, for plaintiff and appellee.
L. Arnold, Dickinson, ND, for defendant and appellant.
1] Jason Tuhy appeals from a divorce judgment distributing
marital property and awarding spousal support and
attorney's fees. We conclude the district court's
distribution of the parties' remainder interests in
property and award of spousal support are not clearly
erroneous. We further conclude the court did not abuse its
discretion when awarding attorney's fees. We affirm.
2] Jason and Samantha Tuhy were married on June 6, 2003, and
had three children during their marriage. The parties
separated in February 2016. In May 2016, Samantha filed for a
divorce. The parties agreed on all issues regarding parental
responsibility and entered into a stipulated parenting plan
in February 2017. The district court held a trial on February
8 and 13, 2017 on issues regarding division of property and
debts, spousal support, and attorney's fees.
3] The district court entered a memorandum opinion in March
2017. Jason filed a request for reconsideration and
clarification of calculations in regard to the property and
debts of the parties, as well as calculations used for
determining spousal support and child support. The request
for reconsideration did not include a request to modify the
attorney's fees awarded in the court's first
memorandum opinion. The order modifying and clarifying the
court's calculations was entered March 31, 2017. A
proposed judgment along with the supporting documents were
filed on May 1, 2017 by Samantha. Jason filed an objection to
the proposed findings and judgment. Jason did not include a
challenge to the award of attorney's fees. The court
filed a letter to counsel responding to the objection and
directing Samantha's attorney to prepare the revised
documents. The judgment was entered on May 4, 2017.
4] The judgment ordered Jason to pay Samantha child support
in the amount of $2, 439 per month and spousal support in the
amount of $1, 000 per month for four years. The district
court ordered Jason to pay Samantha attorney's fees in
the amount of $5, 956, the amount reflected in the property
and debt listing. The court separately designated the
parties' remainder interests in real property and awarded
them to the party whose family controlled the life estate. To
balance the disparity, the court awarded Jason a larger
portion of his retirement. The court awarded Samantha
one-half of Jason's non-vested shares of Whiting Oil
stock. The court further awarded Samantha 25 percent of
Jason's 401(k) equaling $36, 274. The court ordered Jason
to pay Samantha $158, 782.61, concluding that amount is equal
to one-half the difference in the disparity of the net amount
received by the parties. The judgment indicated Jason was to
pay $50, 000 of that amount within 60 days of the entry of
judgment, with the remainder due within 10 years at an
interest rate of 6.5 percent on the unpaid balance.
5] Jason then filed a motion for stay of judgment on June 2,
2017, requesting the conveyance of property and payments be
stayed pending an appeal to this Court. Jason filed a notice
of appeal on June 6, 2017. Samantha filed a response to the
motion. On July 18, 2017, the court held a hearing on the
motion and denied it on July 21, 2017.
6] As an initial matter, Samantha filed a motion to strike
the first issue on appeal of whether the district court erred
in its division of property and debts because she believed
Jason accepted substantial benefits under the judgment before
it was entered. Samantha argued the court's memorandum
opinion awarded Jason the marital residence and the award was
confirmed in the judgment. Jason then listed the marital
residence for sale and Samantha signed the listing agreement.
Samantha further argued Jason was awarded financial assets
which he continues to have custody, control, and use of.
Therefore, Samantha argued by Jason accepting substantial
benefits, he waived his right to appeal. Although Samantha
argues she is not attempting to have the entire case
dismissed on appeal, we have said that spousal support and
the division of property are interrelated and intertwined and
often must be considered together. Paulson v.
Paulson, 2010 ND 100, ¶ 9, 783 N.W.2d 262. Despite
her attempt to narrow the issue, Samantha relies on cases
requesting dismissal of the case on appeal.
7] "A party moving to dismiss an appeal must clearly
establish waiver of the right to appeal by the other
party." Lizakowski v. Lizakowski, 2017 ND 91,
¶ 7, 893 N.W.2d 508 (quoting 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
This [C]ourt 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 [C]ourt from reaching the merits of the
appeal. Id. (quoting Sommers, at ¶ 5).
Jason argues he should have been awarded more of the