Burris v. Burris , 2022 ND 67 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 31, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 67Donald George Burris, Plaintiff and Appellant
v.
Luann Burris, Defendant and Appellee
No. 20210178
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Donald Hager, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice, in which Justices VandeWalle,
Crothers, McEvers, and Tufte joined. Justice Crothers filed an opinion
concurring specially.
DeWayne A. Johnston, Grand Forks, ND, for plaintiff and appellant.
Scott D. Jensen, Grand Forks, ND, for defendant and appellee.
Burris v. Burris
No. 20210178
Jensen, Chief Justice.
[¶1] Donald Burris appeals from a district court order denying his motion to
eliminate or reduce spousal support paid to Luann Burris. Donald Burris
asserts the court erred in determining there had not been a material change in
circumstances, erred as a matter of law in not applying a 2015 statutory
change, erred in not considering his future retirement, and erred awarding
Luann Burris attorney’s fees. We affirm.
I
[¶2] Donald Burris and Luann Burris were divorced in 2006. The judgment
entered at that time ordered Donald Burris to pay Luann Burris permanent
spousal support “continuing until further order of the Court.”
[¶3] In 2020, Donald Burris moved to eliminate or reduce his spousal support
obligation. The district court denied the motion. Citing misconduct during the
course of litigation on the motion, the court ordered Donald Burris to pay
Luann Burris’s attorney’s fees. The district court did not enter a new judgment
or amend the prior judgment. Donald Burris paid the attorney’s fees as ordered
and initiated this appeal.
II
[¶4] “The right to appeal is a jurisdictional matter and, even if the parties do
not raise the issue of appealability, we must dismiss the appeal on our own
motion if we conclude we do not have jurisdiction.” Brummund v. Brummund,
2008 ND 224, ¶ 4, 758 N.W.2d 735 (citing references omitted). Though neither
party raised the issue of appealability of the order, we must first consider
whether this appeal is properly before the Court. Luann Burris asserts Donald
Burris’s appeal related to attorney’s fees is moot because he already paid the
fees.
1
A
[¶5] The district court denied Donald Burris’s motion to modify or reduce his
spousal support obligation. The court issued an order without entering a new
judgment or amending the existing judgment.
[¶6] An appeal may be properly before this Court if the order was intended to
be final. See Sanderson v. Walsh County, 2006 ND 83, ¶ 4, 712 N.W.2d 842(collecting cases). The right to appeal an order is statutory and governed by
N.D.C.C. § 28-27-02. Section 28-27-02(1), N.D.C.C., provides that “[a]n order
affecting a substantial right made in any action, when such order in effect
determines the action and prevents a judgment from which an appeal might
be taken” is appealable. An order denying the elimination or modification of a
spousal support obligation affects a substantial right, was the final action
required to resolve the pending controversy, and did not require a new or
amended judgment. The appeal is properly before this Court.
B
[¶7] Donald Burris paid the attorney’s fees awarded to Luann Burris without
seeking a stay or posting a bond pending appeal. Luann Burris argues the
payment of the attorney’s fees renders the issue moot.
[¶8] This Court has held the following regarding mootness created by
voluntary compliance with a judgment:
“We will dismiss an appeal if the issues become moot or academic
and no actual controversy is left to be determined.” Ramsey Fin.
Corp. v. Haugland, 2006 ND 167, ¶ 8, 719 N.W.2d 346. “An actual
controversy no longer exists when the issue has been rendered
moot by a lapse of time, or the occurrence of related events which
make it impossible for a court to grant effective relief.” Id. “[A]
party who voluntarily pays a judgment against him waives the
right to appeal from the judgment.” Id. at ¶ 9. “[V]oluntary
acquiescence in a judgment also constitutes a waiver of the right
to appeal.” Id. “[P]ayment or acquiescence under coercion or duress
does not constitute a waiver.” Id. at ¶ 10. “[W]hether a judgment
has been voluntarily paid depends upon the facts and
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circumstances of each particular case, and the party seeking
dismissal of the appeal bears the burden of showing the judgment
was paid voluntarily.” Mr. G’s Turtle Mountain Lodge, Inc. v.
Roland Twp., 2002 ND 140, ¶ 13, 651 N.W.2d 625. “A showing that
the judgment has been paid, however, creates a presumption that
the payment was voluntary.” Id.Schwab v. Zajac, 2012 ND 239, ¶ 8, 823 N.W.2d 737. See also Hoverson v.
Hoverson, 2015 ND 38, ¶¶ 23-25, 859 N.W.2d 390.
[¶9] Donald Burris paid the attorney’s fees as directed in the final appealable
order of the district court. The payment itself created a presumption it was
made voluntarily and Donald Burris has not directed us to any part of the
record which would suggest the payment was involuntary. We conclude Donald
Burris’s voluntary payment of the award of attorney’s fees rendered the issue
moot and was a waiver of his right to appeal.
III
[¶10] Donald Burris challenges the district court’s factual finding there has
not been a material change in circumstances warranting modification or
elimination of the spousal support obligation. Our review of a court’s decision
on a motion to modify spousal support is well-established:
When the original divorce judgment includes an award of spousal
support, the district court retains jurisdiction to modify the award.
The party seeking modification of spousal support bears the
burden of proving there has been a material change in the financial
circumstances of the parties warranting a change in the amount of
support. The district court’s determination whether there has been
a material change in circumstances warranting modification of
spousal support is a finding of fact and will be set aside on appeal
only if it is clearly erroneous.
A material change is a change that substantially affects the
financial abilities or needs of the parties and that was not
contemplated by the parties at the time of the original decree. In
assessing whether a material change has occurred, the reasons for
changes in the parties’ income or needs must be examined, as well
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as the extent to which the changes were contemplated by the
parties at the time of the initial decree. Not every change in the
parties’ financial circumstances justifies modification of spousal
support, and no modification is warranted when the change is self-
induced.
Schulte v. Kramer, 2012 ND 163, ¶ 10, 820 N.W.2d 318 (quoting Rothberg v.
Rothberg, 2007 ND 24, ¶ 6, 727 N.W.2d 771). This Court does not reweigh
evidence or make credibility determinations. Green v. Swiers, 2018 ND 258, ¶
4, 920 N.W.2d 471 (quoting reference omitted). “A finding of fact is clearly
erroneous if it is induced by an erroneous view of the law, if there is no evidence
to support it, or if, after review of the entire record, we are left with a definite
and firm conviction a mistake has been made.” Schulte, at ¶ 15 (citing reference
omitted).
[¶11] Donald Burris asserts the district court erred in failing to find a material
change in circumstances as a result of Luann Burris’s retirement, his assertion
Luann Burris could invest or spend money from the sale of two condominiums
to decrease her debt and minimize her need for support, and his assertion
Luann Burris’s multiple sclerosis symptoms have decreased. He also argues
the court erred in its findings regarding his income and net worth, and its
finding related to Luann Burris’s rental payment made to her son. The court
provided a comprehensive order, provided detailed findings, and compared its
current factual findings to the factual findings in the original spousal support
determination. Donald Burris’s challenge to the factual findings amounts to a
request this Court reweigh the evidence on appeal. We conclude the court’s
findings of fact are not clearly erroneous, there is evidence in the record to
support the findings, and we are not left with a definite and firm conviction a
mistake has been made. We affirm the factual finding that Donald Burris failed
to prove a material change in circumstances warranting modification of his
spousal support obligation.
4
IV
[¶12] Donald Burris testified he intends to retire. He urges this Court to adopt
a standard allowing an anticipated retirement to constitute a material change
in circumstances.
[¶13] It is not necessary to determine whether an anticipated retirement can
ever be sufficient to support a material change in circumstances. Here, Donald
Burris testified he has made no effort to sell his business or set a date for
retirement. The district court found Donald Burris had made no efforts to
retire and also found that any determination of his post-retirement income
would be speculative. We conclude the court’s findings of fact are not clearly
erroneous, there is evidence in the record to support the findings, and we are
not left with a definite and firm conviction a mistake has been made. We affirm
the factual finding that Donald Burris’s undefined future retirement was
insufficient to prove a material change in circumstances.
V
[¶14] The judgment provides Donald Burris’s spousal support obligation will
continue “until further order of the Court.” The district court’s authority to
award spousal support is provided by N.D.C.C. § 14-05-24.1(1), which provides:
Taking into consideration the circumstances of the parties, the
court may require one party to pay spousal support to the other
party for a limited period of time in accordance with this section.
The court may modify its spousal support orders.
The current version of this statute, quoted above, became effective on August
1, 2015. The prior version of the statute allowed the district court to order
spousal support for “any period of time” rather than “a limited period of time.”
See 2015 N.D. Sess. Laws ch. 124, § 1.
[¶15] Section 1-02-10, N.D.C.C., provides that, “[n]o part of this code is
retroactive unless it is expressly declared to be so.” Section 14-05-24.1,
N.D.C.C., does not provide for retroactive effect. See e.g., Klein v. Klein, 2016
ND 153, ¶¶ 4-12, 882 N.W.2d 296 (discussing in detail that section 14-05-
5
24.1(3), N.D.C.C., dealing with spousal support where the supported spouse
cohabitates with another, does not apply retroactively).
[¶16] Despite our clear law prohibiting the retroactive application of changes
to N.D.C.C. § 14-05-24.1(1), Donald Burris argues our decision in Kaspari v.
Kaspari, 2021 ND 63, 958 N.W.2d 139, provides for the retroactive application
of changes limiting the duration of spousal support. Our decision in Kaspari
did not consider modification of an existing spousal support award entered
prior to 2015. In Kaspari we interpreted the changes to N.D.C.C. § 14-05-
24.1(1) in the application of the statute to an original spousal support award
entered in 2020, after the statutory amendments. Our decision in Kaspari is
inapplicable to determining whether the change in law is applicable to this
case and does not provide any discussion regarding retroactive application of
the statute.
[¶17] Following the denial of Donald Burris’s motion, no changes were made
to the 2006 judgment and the district court did not enter a new award of
spousal support. The statute cannot be applied retroactively to modify an
existing spousal support obligation, and as such, the change itself is not a
material change in circumstances. Because the obligation in this case was not
modified, we need not address whether the changes to the statute apply to
modifications of obligations existing before the 2015 amendments.
VI
[¶18] The district court’s finding there had not been a material change of
circumstances was not clearly erroneous, the district court did not err as a
matter of law in not applying the 2015 statutory change, the district court’s
finding regarding future retirement was not clearly erroneous, and the
challenge to the award of Luann Burris’s attorney’s fees was rendered moot by
the voluntary payment. We affirm the order of the district court.
6
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Crothers, Justice, specially concurring.
[¶20] I agree with the result reached by the majority and, based on our
precedent and the arguments in this case, with the majority opinion’s reasons
for the holdings. I write separately because great uncertainty is inflicted on
both the obligor and the obligee by the ad hoc application of the need for proof
that retirement will cause a material change of circumstances, and if a hearing
is granted, proof of a revised need or ability to pay. I also write to note that the
underpinnings for our current law on modification of a retiree’s spousal support
have changed, which in turn should cause us to question whether our rule also
should change. Sack v. Sack, 2006 ND 57, ¶ 12, 711 N.W.2d 157 (“When
precedent and precedent alone is all the argument that can be made to support
a court-fashioned rule, it is time for the rule’s creator to destroy it.” (quoting
Francis v. Southern Pac. Co., 333 U.S. 445, 471, 68 S.Ct. 611, 92 L.Ed. 798(1948) (Black, J., dissenting)).
[¶21] Here, Donald Burris moved to reduce his spousal support obligation
because he wanted to retire. He testified he intends to retire but has not sold
his business or set a date for retirement. Majority opinion, ¶¶ 12-13. He argued
this Court should expand its precedent regarding planned retirement, but did
not provide citation to other law that could or should guide us. The majority
opinion does not directly address Donald Burris’s invitation to modify the law,
and instead follows existing law to conclude, “Donald Burris testified he has
made no effort to sell his business or set a date for retirement. The district
court found Donald Burris had made no efforts to retire and also found that
any determination of his post-retirement income would be speculative.” Id. at
¶ 13. Following precedent, we affirm “the factual finding that Donald Burris’s
undefined future retirement was insufficient to prove a material change in
circumstances.” Id.
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[¶22] Under current law, an obligor who is contemplating retirement must
come back to the district court to modify spousal support. As was explained in
Sommer v. Sommer:
Should [the obligor spouse] wish to decrease the amount of
his spousal support payments upon his retirement, he may bring
a motion for modification at that time. In order to modify an award
of spousal support, the obligor spouse has the burden of showing a
material change in circumstances justifying the modification. A
material change is something substantially affecting the financial
abilities or needs of a party.
2001 ND 191, ¶ 18, 636 N.W.2d 423 (cleaned up).
[¶23] When an obligor requests reduction of spousal support due to voluntary
retirement, a North Dakota district court’s answer usually is to provide no
predictable avenue for either the obligor or the obligee. Again, this Court’s
holding in Sommer was clear:
In contrast [to stipulated spousal support], when a
supporting spouse has been ordered to pay spousal support based
on the trial court’s findings, a voluntary change in employment by
the supporting spouse that results in lower income may be a valid
basis for a modification of spousal support if the change in
employment was reasonable and made in good faith. See Mahoney
v. Mahoney, 538 N.W.2d 189, 192-93 (N.D. 1995) (affirming the
trial court’s finding of a change in circumstances based on the
supporting spouse’s decrease in income that occurred when he
voluntarily changed employment). Likewise, 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. Cf. id.; see also Pimm v. Pimm,
601 So.2d 534, 537 (Fla. 1992); In re Marriage of Smith, 396 N.E.2d
859, 863-64 (Ill. Ct. App. 1979); Smith v. Smith, 419 A.2d 1035,
1038 (Me. 1980); Silvan v. Sylvan, 632 A.2d 528, 530 (N.J. Super.
Ct. App. Div. 1993); Deegan v. Deegan, 603 A.2d 542, 545-46 (N.J.
Super. Ct. App. Div. 1992). Thus, our prior holdings . . . would not
bar Donald from bringing a motion for modification of spousal
support based upon his voluntary retirement.
8
2001 ND 191, ¶ 20.
[¶24] The Sommer Court acknowledged the uncertainty created by this process
by making clear that showing a material change of circumstances was a
different question than whether the existing support order would be modified:
While we find that our prior case law would not bar [the obligor
spouse] from bringing a motion for modification at his retirement,
we leave 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. Courts have relied on a number of different tests
to determine when such a motion should be granted. See Lewis
Becker, Spousal and Child Support and the “Voluntary Reduction
of Income” Doctrine, 29 Conn. L. Rev. 647, 685-87 (1997); Colleen
Marie Halloran, Comment, Petitioning a Court to Modify Alimony
When a Client Retires, 28 U. Balt. L. Rev. 193, 212-29 (1998).
2001 ND 191, ¶ 20 n.2.
[¶25] 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 cases have
been superseded by a statute providing comprehensive guidelines for
prospective and actual retirement and spousal support awards.
Massachusetts, Virginia and Oregon also address retirement in their spousal
support statutes.
[¶26] In Ebach this Court adopted a multifactor “totality of the circumstances”
test for determining whether voluntary retirement of the supporting spouse
constitutes a material change of circumstances. 2005 ND 123, ¶ 12 (setting
forth “non-exclusive factors”). Deciding whether to award spousal support
based on multifactor analysis has been subject to separate criticism:
The law of spousal support under the multifactored
statutory approach has been criticized for its arbitrary nature and
lack of predictability. See Robert Kirkman Collins, The Theory of
9
Marital Residuals: Applying an Income Adjustment Calculus to the
Enigma of Alimony, 24 Harv. Women’s L.J. 23, 24-25 (2001).
According to the critics, the terms of the statutes embracing
multifactored tests for spousal support are not well defined and
the standards are so vague that just about any outcome, including
those based on the personal preference of an individual judge, may
be justified by citation to pliable statutory factors. See id.; David
A. Hardy, Nevada Alimony: An Important Policy in Need of a
Coherent Policy Purpose, 9 Nev. L.J. 325, 326 (2009)
(characterizing spousal support as “judge-specific, idiosyncratic,
inconsistent, and unpredictable”). Some courts have joined the
fray. See, e.g., Bacon v. Bacon, 819 So.2d 950, 954 (Fla. Dist. Ct.
App. 2002) (Farmer, J., concurring specially) (“Broad discretion in
the award of alimony is no longer justifiable and should be
discarded in favor of guidelines, if not an outright rule.”); Melzer v.
Witsberger, 505 Pa. 462, 480 A.2d 991, 994 (1984) (noting under
Pennsylvania law “a total lack of organization with respect to how
these principles interact and how they should be applied in order
to arrive at an appropriate award of support”). The criticisms are
not entirely off the mark, as a multifactored legal test in which all
factors are relevant and none are dispositive can be
extraordinarily difficult to consistently apply.
In re Marriage of Gust, 858 N.W.2d 402, 408 (Iowa 2015).
[¶27] Setting aside for the remainder of this discussion the advisability of
using a multifactor approach, the framework adopted in Ebach was taken from
Silvan v. Sylvan, 632 A.2d 528, 530 and Deegan v. Deegan, 603 A.2d 542, 545-
46. See Ebach, 2005 ND 123, ¶ 12. Both New Jersey cases, and the exact test
we adopted in Ebach, were superseded by statute in 2014. See Landers v.
Landers, 133 A.3d 637, 640-42, (N.J. Super. App. Div. 2016). The 2014 change
made by the New Jersey Legislature reversed course, and no longer required
the supporting spouse to try establishing a material change of circumstances
due to retirement. New Jersey instead created a rebuttable presumption that
spousal support terminates when the supporting spouse attains full retirement
age. Id. at 640. The Court in Landers explained:
The 2014 amendments added a new subsection (j) [to N.J.
Stat. Ann. § 2A:34-23], which lists objective considerations a judge
10
must examine and weigh when reviewing an obligor’s request to
modify or terminate alimony when an obligor retires. L. 2014, c.
42, § 1. The newly enacted provisions state, in pertinent part:
Alimony may be modified or terminated upon the prospective or
actual retirement of the obligor.
(1) There shall be a rebuttable presumption that alimony shall
terminate upon the obligor spouse or partner attaining full
retirement age, except that any arrearages that have accrued prior
to the termination date shall not be vacated or annulled. The court
may set a different alimony termination date for good cause shown
based on specific written findings of fact and conclusions of law.
The rebuttable presumption may be overcome if, upon
consideration of the following factors and for good cause shown,
the court determines that alimony should continue:
(a) The ages of the parties at the time of the
application for retirement;
(b) The ages of the parties at the time of the
marriage or civil union and their ages at the time of
entry of the alimony award;
(c) The degree and duration of the economic
dependency of the recipient upon the payor during the
marriage or civil union;
(d) Whether the recipient has foregone or
relinquished or otherwise sacrificed claims, rights or
property in exchange for a more substantial or longer
alimony award;
(e) The duration or amount of alimony already paid;
(f) The health of the parties at the time of the
retirement application;
(g) Assets of the parties at the time of the
retirement application;
(h) Whether the recipient has reached full
retirement age as defined in this section;
(i) Sources of income, both earned and unearned, of
the parties;
(j) The ability of the recipient to have saved
adequately for retirement; and
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(k) Any other factors that the court may deem
relevant.
Id. at 640-41.
[¶28] Through application of the 2014 law, the New Jersey Superior Court has
held the phrase “prospective retirement” means one that will take place in the
near future as opposed to many years after the application. Mueller v. Mueller,
144 A.3d 916, 922 (N.J. Super. Ct. Ch. Div. 2016). The court also held the
prospective retiree should provide a detailed plan for retirement that includes
dates and details regarding economic support following retirement. Id. To date,
this Court only has relied on the 1992 and 1993 New Jersey cases, and has not
adopted subsequent interpretations of that State’s changed (and changing) law.
[¶29] Because the reason for our rule announced in Ebach has changed, either
by action of the North Dakota Legislature or upon full briefing in an
appropriate case, the time has arrived for us to consider whether the basis for
our approach to a support-paying former spouse’s retirement also should
change. If the Court rather than the legislature ultimately makes that inquiry,
consideration should be paid to legal developments in New Jersey and several
other states regarding spousal support when the obligor voluntarily retires.
[¶30] The In re Marriage of Gust decision from Iowa reviewed then-new
legislation in Massachusetts as follows:
A major impetus to the legislation in Massachusetts was the
question of the impact of retirement on spousal support (referred
to as alimony in Massachusetts). Rachel Biscardi, Dispelling
Alimony Myths: The Continuing Need for Alimony and the Alimony
Reform Act of 2011, 36 W. New Eng. L.Rev. 1, 30-31 (2014); see also
Mass. Gen. Laws ch. 208, § 49(f) (“General term alimony orders
shall terminate upon the payor attaining the full retirement age.”).
In 2009, the Massachusetts Supreme Judicial Court declined to
create a presumption in favor of the payor’s request to be relieved
of alimony obligations upon retirement. See Pierce v. Pierce, 455
Mass. 286, 916 N.E.2d 330, 344-45 (2009). In response, the
Massachusetts legislature amended its alimony statute to provide,
among other things, that general (or traditional) alimony should
12
not presumptively continue beyond the payor reaching full
retirement age, absent a showing of good cause. See Mass. Gen.
Laws ch. 208, §§ 49(f), 53(e). The Alimony Reform Act of 2011 also
provides that a court may consider alimony for an indefinite period
only for marriages of twenty years or more and generally limits
support payments to between thirty and thirty-five percent of the
difference between the parties’ gross incomes at the time of the
alimony order, unless there are circumstances warranting
deviation. See 2011 Mass. Legis. Serv. ch. 124, § 3 (West) (codified
at Mass. Gen. Laws ch. 208, §§ 49(c), 53(b), 53(d)); see also Biscardi,
36 W. New Eng. L.Rev. at 17-37; Charles P. Kindregan, Reforming
Alimony: Massachusetts Reconsiders Postdivorce Spousal Support,
46 Suffolk U.L.Rev. 13, 24-41 (2013) (same).
858 N.W.2d at 409-10.
[¶31] Virginia law provides that an obligor’s attainment of full retirement age
constitutes a material change in circumstances. Va. Code Ann. § 20-109(E).
When a court is considering a modification of spousal support based on
retirement, it must consider the following factors:
1. Whether retirement was contemplated by the court and
specifically considered by the court when the spousal support
was awarded;
2. Whether the retirement is mandatory or voluntary, and the
terms and conditions related to such retirement;
3. Whether the retirement would result in a change in the income
of either the payor or the payee spouse;
4. The age and health of the parties;
5. The duration and amount of spousal support already paid; and
6. The assets or property interest of each of the parties during the
period from the date of the support order and up to the date of
the hearing on modification or termination.
Va. Code Ann. § 20-109(F).
[¶32] In Oregon, courts are limited to finding a change in circumstances
warranting modification of spousal support if the supporting spouse’s
retirement was made in “good faith.” Or. Rev. Stat. Ann. § 107.135(4)(c). The
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court considers the following factors when resolving whether retirement was
taken in good faith:
(A) Timing of the voluntary retirement or other reduction in
financial status to coincide with court action in which the obligee
seeks or is granted an increase in spousal support.
(B) Whether all or most of the income producing assets and
property were awarded to the obligor, and spousal support in lieu
of such property was awarded to the obligee.
(C) Extent of the obligor’s dissipation of funds and assets prior to
the voluntary retirement or soon after filing for the change of
circumstances based on retirement.
(D) If earned income is reduced and absent dissipation of funds or
large gifts, whether the obligor has funds and assets from which
the spousal support could have been paid.
(E) Whether the obligor has given gifts of substantial value to
others, including a current spouse, to the detriment of the obligor’s
ability to meet the preexisting obligation of spousal support.
Or. Rev. Stat. Ann. § 107.135(4)(d).
[¶33] I believe the current North Dakota framework for considering whether
voluntary retirement constitutes a material change of circumstances, and
whether it thereafter allows for modification of spousal support, unfairly leaves
both obligors and obligees guessing about the likely result at the end of a
hearing. Conversely, the foregoing statutes and cases provide samples of how
other jurisdictions have sought to reduce the expense, and increase the
predictability, of retirement-related modification proceedings. I urge legislative
consideration of these legal developments and, in the absence of legislative
consideration, I encourage litigants to squarely present this issue to the Court
and allow us to revisit the Ebach line of cases.
[¶34] Daniel J. Crothers
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