Willprecht v. Willprecht , 2021 ND 17 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 18, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 17Wendy Michele Willprecht, Plaintiff and Appellee
v.
Kevin John Willprecht, Defendant and Appellant
No. 20200195
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable John C. Irby, Judge.
REVERSED AND REMANDED.
Opinion of the Court, by Crothers, Justice, in which Chief Justice Jensen, and
Justices VandeWalle and Tufte joined. Justice McEvers filed an opinion
concurring in part and dissenting in part.
Jason W. McLean, Fargo, ND, for plaintiff and appellee.
Robert J. Schultz, Fargo, ND, for defendant and appellant.
Willprecht v. Willprecht
No. 20200195
Crothers, Justice.
[¶1] Kevin Willprecht appeals from an amended judgment altering his child
support and spousal support obligations. Kevin Willprecht argues the district
court erred in awarding spousal support without reconsidering the Ruff-
Fischer guidelines, by failing to analyze Wendy Willprecht’s spousal need as
reflected by her living expenses, and because the spousal support award
exceeded Kevin Willprecht’s ability to pay. We reverse and remand the district
court’s spousal support award for further proceedings consistent with this
opinion.
I
[¶2] Wendy and Kevin Willprecht were married on December 18, 1999. They
have four children together, three of whom remain minors. Wendy commenced
this divorce action in May 2018 and trial was held on March 4-5, 2019. In its
original decision the district court determined Wendy Willprecht was not
entitled to spousal support. The court awarded Wendy Willprecht assets
totaling $2,076,302, including an equalization payment of $750,000. The
equalization payment was to be paid by Kevin Willprecht at $62,825 per year
for 15 years with interest at 3%.
[¶3] Both parties appealed. Willprecht v. Willprecht, 2020 ND 77, 941 N.W.2d
556. This Court affirmed the allocation of assets and liabilities. Id. at ¶ 25.
This Court concluded it was reversible error to fail to include a step-down
provision for child support and remanded the issue of spousal support because
the child support obligation was originally tied into the district court’s decision
on spousal support. Id. at ¶ 43. On remand, the district court held a status
conference and asked what would be required to “button this one up.” Kevin
Willprecht requested additional findings based on the record. The district court
agreed and requested each party submit written arguments.
1
[¶4] The district court issued an amended judgment on July 1, 2020. In the
amended judgment, Kevin Willprecht’s child support obligation for four
children was $3,168 per month until September 2020. With the step-down
provision, Kevin Willprecht’s obligation decreased to $2,991 per month for
three children in October 2020, $2,496 per month for two children in July 2023,
and $1,509 per month for one child in July 2026. Under the step-down
provision, Kevin Willprecht’s total child support obligation is $80,781 less than
the obligation established in the district court’s initial decision.
[¶5] In addressing the spousal support request, the court made the following
findings:
“In this Court’s Memorandum Opinion and Order of
April 29, 2019, the situation of the parties was considered using
the Ruff-Fischer Guidelines. In sum, the Court found that given
Wendy’s income and receipt of an annual property settlement
equalization payment more cash would be flowing into her
household than would be remaining in Kevin’s. In addition, Kevin
paid all of the debts of the parties, including household expenses
that were put on a credit card. Those considerations aside, there
does remain a disparity in income. It was the intention of this
Court to provide what amounted to temporary rehabilitative
spousal support by not allowing Kevin a ‘step-down’ in his child
support calculations. Clearly, that was an error. However, Kevin’s
child support obligation will diminish over time. This will lead to
a greater ability to pay spousal support.
“Given the increased ability to pay due to a diminishing child
support obligation, some form of rehabilitative spousal support is
appropriate. Wendy has made a compelling argument that she
should be entitled, under all circumstances, to an award of
rehabilitative spousal support in the amount of $1,030 for the
months of June 2020 through September 2020, and increasing that
award to $1,735 per month in October 2020 through June 2028.
This award of rehabilitative spousal support is made with full
recognition that Kevin may have to tap into his equity to make the
payments. The Judgment of this Court will be amended to include
rehabilitative spousal support as indicated herein. The
2
rehabilitative spousal support will terminate prior to the ordered
expiration should Wendy cohabitate, remarry, or die.”
Kevin Willprecht’s total spousal support obligation to Wendy Willprecht under
the amended judgment is $165,475. Kevin Willprecht appeals from that
judgment.
II
[¶6] Kevin Willprecht asserts the district court erred in awarding spousal
support without reconsidering the Ruff-Fischer guidelines. On remand, rather
than re-analyzing the Ruff-Fischer guidelines, the district court referred to its
analysis of those guidelines in the original decision.
[¶7] A decision on spousal support is subject to the clearly erroneous standard
of review. Schmuck v. Schmuck, 2016 ND 87, ¶ 6, 882 N.W.2d 918. The district
court must consider the Ruff-Fischer guidelines when determining if an award
of spousal support is appropriate. Overland v. Overland, 2008 ND 6, ¶ 16, 744
N.W.2d 67. The Ruff-Fischer guidelines are: (1) the respective ages of the
parties; (2) the parties’ earning abilities; (3) the duration of the marriage and
the conduct of the parties during the marriage; (4) their station in life; (5) the
circumstances and necessities of each party; (6) the health and physical
condition of each party; (7) their financial circumstances as shown by the
property owned at the time, its value at the time, its income-producing
capacity, if any, whether accumulated before or after the marriage; and (8)
other matters as may be material. Willprecht, 2020 ND 77, ¶ 19. A mechanical
application of the Ruff-Fischer guidelines is not required, but the court must
explain the rationale for its decision. Id. Property distribution and spousal
support are interrelated and often must be considered together. Id. at ¶ 40.
[¶8] In the district court’s original findings of fact, conclusions of law, and
order for judgment, it concluded:
“As with property division, the Court must consider the Ruff-
Fischer Guidelines in making its determination of spousal support.
The parties were 42 and 45 years of age respectively, at the date of
the hearing. Both parties are healthy. Kevin’s drinking appears to
3
be the root cause of the demise of this near 20-year marriage.
Although, the parties accumulated farm assets during the course
of their marriage, they appeared to be living a life typical of a
middle-income couple. They owned a nice home, drove decent
vehicles, provided for their children and took occasional family
vacations.
“Wendy works part-time for Sargent County at Emergency
Management and occasionally substitute teaches. Her income is
approximately $2,100 per month. She is also provided with a single
health insurance coverage. She will also be netting approximately
$19,333 in farm rent. Her annual earned income ($2,100 x 12) and
her farm rent, $19,333 is $44,533. Kevin’s annual projected
income, before taxes is $144,078. From this amount he will be
paying approximately $24,000 in health insurance premiums.
Kevin’s annual child support obligation will exceed $36,000 per
year. In addition, he will be making an equalization payment
annually to Wendy in the amount of approximately $63,000. As a
result, Wendy will have more spendable income available to her
household than Kevin. Kevin is obligated to pay all of the debts of
the parties. Wendy has a quality home with no mortgage obligation
against it. Her vehicle is paid for. The Court did not include any
‘step-down’ calculations for Kevin’s child support. This was done
deliberately by the Court in light of the income disparity of the
parties.”
[¶9] In its amended order the district court did not address each of the
guidelines. However, the court referenced its previous analysis of the Ruff-
Fischer guidelines. The court was not required to engage in a mechanical
application of the Ruff-Fischer guidelines as part of the rationale for its
determination. Willprecht, 2020 ND 77, ¶ 19. While property distribution and
spousal support are ordinarily considered together, the court did not have the
option to re-analyze property distribution here because that allocation was
affirmed on the first appeal. Id. at ¶ 25; Viscito v. Christianson, 2016 ND 139,
¶ 7, 881 N.W.2d 633 (quoting Carlson v. Workforce Safety & Ins., 2012 ND 203,
¶ 16, 821 N.W.2d 760) (“The mandate rule, a more specific application of law
of the case, requires the trial court to follow pronouncements of an appellate
court on legal issues in subsequent proceedings of the case and to carry the
4
[appellate court’s] mandate into effect according to its terms. . . . and we retain
the authority to decide whether the district court scrupulously and fully
carried out our mandate’s terms.”). The only issues on remand were child
support and spousal support. Under these circumstances, the court’s
incorporation of its previous Ruff-Fischer analysis rather than re-analyzing all
of the factors was not clearly erroneous.
III
[¶10] Kevin Willprecht argues the district court failed to consider Wendy
Willprecht’s need for spousal support.
[¶11] The district court must make spousal support awards “in consideration
of the needs of the spouse seeking support and of the supporting spouse’s needs
and ability to pay.” Overland, 2008 ND 6, ¶ 16. District courts are “not required
to complete a calculation to ensure each party’s assets, debts, and expenses are
accounted for in determining spousal support; however, a clear description of
the financial situation of each party is helpful for this Court in understanding
the district court’s rationale in awarding spousal support.” Berg v. Berg, 2018
ND 79, ¶ 11, 908 N.W.2d 705 (citing Ulsaker v. White, 2009 ND 18, ¶ 9, 760
N.W.2d 82). “‘We will not set aside the trial court’s determinations on property
division or spousal support for failure to explicitly state the basis for its
findings if that basis is reasonably discernible by deduction or inference.’”
Lindberg v. Lindberg, 2009 ND 136, ¶ 31, 770 N.W.2d 252 (quoting Routledge
v. Routledge, 377 N.W.2d 542, 545 n.1 (N.D. 1985); Meyer v. Meyer, 2004 ND
89, ¶ 23, 679 N.W.2d 273). However, remand is necessary where we are unable
to discern the basis for a district court’s spousal support decision. Lindberg, at
¶ 31.
[¶12] When discussing Wendy Willprecht’s monthly living expenses and needs
in its initial decision, the district court stated:
“Wendy has a quality home with no mortgage obligation against it.
Her vehicle is paid for. The Court did not include any ‘step-down’
calculations for Kevin’s child support. This was done deliberately
5
by the Court in light of the income disparity of the parties. The
Court concludes that no spousal support is required.”
The district court did not address Wendy Willprecht’s estimated monthly living
expenses or need for support in its memorandum and order on remand. Rather,
the court addressed only Kevin Willprecht’s increased ability to pay, and
stated, “Wendy has made a compelling argument that she should be entitled,
under all circumstances, to an award of rehabilitative spousal support. . . .”
While the court was not required to provide a precise calculation of Wendy
Willprecht’s need, it was required to provide a discernible basis for the court’s
decision. Without further explanation of Wendy Willprecht’s need for spousal
support, we are unable to discern the basis for the court’s spousal support
decision.
IV
[¶13] Kevin Willprecht argues the district court erred in awarding spousal
support to Wendy Willprecht in excess of his ability to pay. He asserts the
spousal support exceeds his income. Wendy Willprecht argues Kevin
Willprecht possesses the ability to pay spousal support and the record lacks
evidence to show otherwise. She asserts Kevin Willprecht paid $5,000 in
monthly combined support obligations, without incident, from September 2018
through April 2019 under an interim agreement prior to their divorce being
finalized.
[¶14] This Court previously reversed an award of spousal support when the
support obligation was unrealistic. See Weir v. Weir, 374 N.W.2d 858, 866 (N.D.
1985). In Weir, the Court noted the husband received a gross salary of $79,392,
and after deduction of taxes was left with a net income of $58,719.36. Id. at
865. After paying spousal support, child support, and other loan obligations
and living expenses, the husband was left with a monthly deficit of $1,201.63,
and without his expected yearly bonus, would be left in dire straits. Id. at 865-
66. In its decision to reverse and remand, this Court stated:
“No one has arithmetically demonstrated to us, and we have
been unable on the record before us to discern on our own, that it
6
is possible for Patrick to make the increased spousal support
payments in addition to making reasonable payments on his debts
and paying for his own living expenses. Therefore, we are left with
a definite and firm conviction that the trial court made a mistake
in increasing the spousal support payments to $2,200 per month
for 1985 and 1986 and in imposing spousal support payments of
$1,800 per month for the years 1987 through 1989. We conclude,
however, that the trial court’s imposition of $1,500 per month
spousal support payments commencing in 1990, and continuing
thereafter for a period of 20 years or until Rebecca marries is not
clearly erroneous.”
Id. at 866.
[¶15] Our cases establish that a spouse is not required to deplete property
distribution in order to live. Hagel v. Hagel, 2006 ND 181, ¶ 14, 721 N.W.2d 1(citing Sommers v. Sommers, 2003 ND 77, ¶ 15, 660 N.W.2d 586; Fox v. Fox,
1999 ND 68, ¶ 24, 592 N.W.2d 541). Although those holdings have not been
applied to the spouse making spousal support payments, a balanced
application of the law requires that the principle apply to the obligor as well.
[¶16] The district court found Kevin Willprecht’s five-year average income,
adjusted for loss of some farmland transferred to Wendy Willprecht, was
$153,556. Under its original order, the court found Kevin Willprecht’s gross
annual income was $144,078, and his net monthly income after taxes was
$8,205. Although the court made no finding in its amended order as to Kevin
Willprecht’s net income, it found his gross annual income was $153,556. Kevin
Willprecht asserts his after-tax income is $101,329 per year, resulting in a net
monthly income of $8,444.08. Kevin Willprecht is currently paying $2,991 per
month in child support, resulting in an annual obligation of $35,892. He also
has an annual obligation to Wendy Willprecht of $62,285 per year for property
equalization, which equates to $5,190.41 per month. Considering these two
obligations alone, Kevin Willprecht’s monthly divorce-related obligations are
$8,181, leaving him with $263.08 per month for all other living expenses.
[¶17] When Kevin Willprecht’s monthly spousal support payment of $1,735 is
added to the other divorce-related obligations, Kevin Willprecht’s obligations
7
exceed his earned income and leave him with a monthly deficit of $1,471.92
and an annual deficit of $17,663.04. We were provided with no explanation
how Kevin Willprecht could meet these obligations without selling assets or
otherwise incurring debt. To the contrary, the district court’s amended order
seemingly acknowledged the inability to pay, stating, “This award of
rehabilitative spousal support is made with full recognition that Kevin may
have to tap into his equity to make the payments.”
[¶18] Although the district court concluded a new income disparity arose
because of step-down provisions being added to the child support obligation, it
failed to adequately assess Kevin Willprecht’s ability to meet the new
obligation for spousal support. See Christianson v. Christianson, 2003 ND 186,
¶ 20, 671 N.W.2d 801 (“Equalization is not a goal of spousal support, and
equalization of income between divorcing spouses is not a measure of spousal
support although it is a factor that can be considered.”) (citation omitted). This
Court is left with a definite and firm conviction a mistake has been made
because neither Wendy Willprecht nor the district court provided a calculation
of how Kevin Willprecht can meet his monthly obligations under the amended
order without selling assets or incurring debt.
V
[¶19] We reverse and remand the district court’s spousal support award for
further proceedings consistent with this opinion.
[¶20] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Jerod E. Tufte
McEvers, Justice, concurring in part and dissenting in part.
[¶21] I agree with the majority, that this matter should be returned to the
district court for further consideration of Wendy Willprecht’s needs versus
Kevin Willprecht’s ability to pay. I also agree with the majority that the court
8
did not have the option to change the property distribution based on the
parameters of this Court’s remand.
[¶22] This Court has repeatedly said property division and spousal support are
intertwined and the district court may consider them together on remand.
Marschner v. Marschner, 2001 ND 4, ¶ 23, 621 N.W.2d 339 (holding division of
property not clearly erroneous on appeal, but because issues of property
division and spousal support are intertwined, the district court may revisit the
property division on remand); Mertz v. Mertz, 2015 ND 13, ¶ 27, 858 N.W.2d
292 (same); Overland v. Overland, 2008 ND 6, ¶ 21, 744 N.W.2d 67 (same);
Corbett v. Corbett¸ 2001 ND 113, ¶ 22, 628 N.W.2d 312 (same); Striefel v.
Striefel, 2004 ND 210, ¶ 20, 689 N.W.2d 415 (affirming spousal support award,
reversing marital property award, and remanding for further consideration on
both issues). We did not explicitly include the often repeated legal maxim, but
even if the property division cannot be revised, it does not mean it cannot be
considered in the other side of the equation in determining the appropriateness
of spousal support on remand.
[¶23] The reason to generally allow the district court to reconsider both
spousal support and division of property on remand is simple: it is important
that we not tie the court’s hands when the two issues are intertwined. We have
also frequently stated that questions of property division and spousal support
cannot be considered separately or in a vacuum. Marschner, 2001 ND 4, ¶ 13.
See also Stock v. Stock, 2016 ND 1, ¶ 13, 873 N.W.2d 38 (same); Fox v. Fox,
1999 ND 68, ¶ 22, 592 N.W.2d 541 (same); Schmaltz v. Schmaltz, 1998 ND 212,
¶ 17, 586 N.W.2d 852 (same). While we may have tied one hand, we have not
tied the other, nor have we blinded the court to what has already been done.
[¶24] As the majority points out, we have stated a spouse is not required to
deplete their property distribution in order to live. Majority, at ¶ 15 (citing
Hagel v. Hagel, 2006 ND 181, ¶ 14, 721 N.W.2d 1 (citations omitted)). The
majority states “a balanced application of the law requires the principle apply
to the obligor as well.” Id. (citing to no authority). This Court has not previously
applied this premise to a spouse ordered to pay spousal support. I disagree
with the majority expanding the general rule on depleting an award of marital
9
property to the spouse who may be required to pay spousal support payments.
While applying the same principle to the obligor (the paying spouse) as to the
obligee (the receiving spouse) sounds fair, in reality it may not be. I dissent to
the extension as some type of bright line rule that if an obligor may need to
dissipate any portion of their property award, they should not be required to
pay spousal support. I agree that depletion or dissipation of property is a factor
to consider when applying the Ruff-Fischer factors and the parties’ needs
versus ability to pay, but it should not be used as a rule to foreclose the
possibility of a finding need or a finding ability to pay.
[¶25] In Hagel, cited by the majority, the district court found one party had a
need for support, but denied spousal support because that party also received
an equal distribution of property, much of which was cash that was available
to her. 2006 ND 181, ¶ 14. This Court reversed and remanded when the
division of property granted one party income producing property and the other
party a predominantly cash award. Id. at ¶¶ 13-14. Here, Kevin Willprecht
was awarded a much larger share of the property, much of it income producing,
while Wendy Willprecht received a much smaller share, and little income
producing property. She should not be penalized in consideration of spousal
support because some of the property she was awarded was in cash payments.
[¶26] Instead of extending the concept of depletion of property to an obligor,
we should consider the underlying rationale for applying it to the spouse in
need of spousal support. The first case that this Court discussed depletion of
property in regard to the award of spousal support was Bakes v. Bakes, 532
N.W.2d 666, 669 (N.D. 1995), where it was stated, “Dorothy, as a
disadvantaged spouse, is not required to deplete her property distribution in
order to live.” (Emphasis added). In Bakes, this Court affirmed an award of
rehabilitative spousal support, and said “[a] spouse’s need for rehabilitative
support in a long-term marriage is not limited to the prevention of destitution,
but may be awarded to balance the burdens created by the parties’ separation
when it is impossible to maintain two households at the predivorce standard
of living.” Id. at 668 (citation omitted). In Bakes, this Court did not fashion a
bright line rule, rather it was pointed out that “[o]f course, an award of spousal
support must be made in the light of the needs of the disadvantaged spouse
10
and the supporting spouse’s needs and ability to pay.” Id. at 668-69 (citation
omitted).
[¶27] In applying the depletion of property concept in Bakes, this Court relied
on Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D. 1994), which stated: “[a] spouse’s
need for rehabilitation is not limited to the ‘prevention of destitution,’ but can
also be based on their standard of living before the divorce.”1 (Relying on
Wahlberg v. Wahlberg, 479 N.W.2d 143, 145 (N.D. 1992)). The Ruff-Fischer
factors require consideration of:
[T]he respective ages of the parties, their earning ability, the
duration of the marriage and conduct of the parties during the
marriage, their station in life, the circumstances and necessities of
each, their health and physical condition, their financial
circumstances as shown by the property owned at the time, its value
at the time, its income-producing capacity, if any, whether
accumulated before or after the marriage, and such other matters
as may be material.
Wiege, at 711 (emphasis added) (citations omitted). Other matters may include
retirement savings or pensions, the liquidity or income-producing nature of the
property distributed and whether a disadvantaged spouse will have to use up
that property to live. Id. Spousal support may be awarded after consideration
of the Ruff-Fischer factors to either maintain the parties’ pre-divorce standard
of living or to equitably share the burden caused by the divorce. Id. at 712-13.
It appears this Court only intended to create the bright line rule that a spouse
need not dissipate or deplete their property to be eligible to receive spousal
support.
1It is noted that Wiege v. Wiege, 518 N.W.2d 708 (N.D. 1994) has been overruled to the extent that a
separate or independent “disadvantaged spouse” finding is a prerequisite to awarding rehabilitative
spousal support. Sack v. Sack, 2006 ND 57, ¶ 14, 711 N.W.2d 157. However, in overruling the
requirement of making an independent finding of a “disadvantaged spouse” before making a spousal
support award, we did not say that being disadvantaged is not something a district court cannot
consider. Rather, in Sack, this Court stated, “[s]uch a requirement appears to be no more than a
repetitive and onerous exercise for the parties and the courts, which are already faced with
considerable procedural and substantive burdens. Nor is a separate test consistent with our case law
which has clearly, though sporadically, emphasized the lack of ‘rigid rules for determining whether or
not to award [spousal support] and the amount of such award.’” Id. at ¶ 11 (citation omitted).
11
[¶28] This concept was continued in Fox, cited by the majority, where this
Court reversed the district court when it did not award spousal support,
apparently because the court found there was no need for spousal support
because the spouse was adequately provided for by her property distribution.
1999 ND 68, ¶ 24. In Fox, the parties were married for 32 years, the wife had
been a homemaker during the marriage and stayed home with the children,
and the husband was a doctor. Id. at ¶ 23. Even after Dr. Fox became disabled,
his disability income was $17,200 per month and Mrs. Fox would have faced
difficulty finding any job other than some entry level position. Id. While this
Court reversed the court on the division of property and the spousal support
award for a number of reasons, it was also noted that we have adopted the
“equitable doctrine” of rehabilitative spousal support and its purpose is not
limited to assisting a disadvantaged spouse in achieving educational goals, but
includes enabling a disadvantaged spouse to achieve suitable and appropriate
self-support. Id. at ¶ 20. We also noted that questions of property division and
spousal support cannot be considered separately or in a vacuum, especially
when there is a large difference in earning power between the parties. Id. at
¶ 22. The court may also consider the standard of living of the parties in a long
term marriage and the need to balance the burden created by the divorce when
it is not possible to maintain two households at the pre-divorce standard of
living. Id. at ¶ 20.
[¶29] Following remand, this Court affirmed a valuation and distribution of
property resulting in the parties receiving nearly an equal amount, with each
being awarded over $1.5 million, with Mrs. Fox receiving about $26,000 more
than Dr. Fox. Fox v. Fox, 2001 ND 88, ¶ 10, 626 N.W.2d 660. Despite a large
award of property, which slightly favored Mrs. Fox, we also affirmed an award
of spousal support to her of $6,000 per month until Dr. Fox attained age 65. Id.
at ¶ 13. We noted in adopting the equitable doctrine for spousal support, this
Court has rejected the “minimalist doctrine,” which aims to educate and
retrain the recipient for minimal self-sufficiency. Id. at ¶ 24 (relying on Marcia
O’Kelly, Entitlements to Spousal Support After Divorce, 61 N.D.L.Rev. 225, 242
(1985)).
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[¶30] “We have reversed a decision of the trial court that required a spouse to
use her property distribution payments to rehabilitate herself, while
permitting the other spouse to retain income-earning property and use the
income from that property to make the cash property distribution payments.”
Marschner, 2001 ND 4, ¶ 16 (citations omitted). The Marschner case, as here,
involved the district court attempting to preserve a family farm. Id. at ¶ 17.
Similarly, this Court in Marschner was concerned about requiring the spouse
who would continue farming to be able to pay spousal support and a cash
payment as part of the property distribution. Id. In Marschner, each party was
awarded virtually an equal share of the marital property. Id. at ¶ 14. As noted
in Marschner, if immediate spousal support cannot be awarded because of the
ongoing property distribution payments, the matter should be reserved. Id. at
¶ 21. “Preserving the family farm is not to be done at all costs nor should it
engulf all other factors.” Id. at ¶ 18. This Court held the court’s preservation
of the farm, which required denial of spousal support, was clearly erroneous.
Id. at ¶ 23.
[¶31] Unlike Marschner, where the district court awarded each party nearly
an equal share of the marital property, Wendy Willprecht was only awarded
about one-third of the marital estate, a net award of $2,076,302 compared to
Kevin Willprecht’s $3,562,998. Willprecht v. Willprecht, 2020 ND 77, ¶ 18, 941
N.W.2d 556. Also unlike Marschner, where the marital estate was small, here
there is a large marital estate. See Marschner, 2001 ND 4, ¶ 17 (referring to
the marital estate as small). Part of the reason Kevin Willprecht may have
difficulty paying spousal support without dissipation of property is because he
is making annual property “equalization” payments of $62,825 per year.
Willprecht, 2020 ND 77, ¶ 20. The annual payments did little to equalize the
burdens of the divorce, particularly when the payments may be made over
fifteen years at three percent interest. If Wendy Willprecht was awarded the
same amount of property, but had been awarded more farmland instead of an
equalization payment, it may have had an effect on both her need and Kevin
Willprecht’s ability to pay. However, that is water under the bridge as the
property award has been affirmed. Id. at ¶ 25.
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[¶32] It is my position that the district court did not err by recognizing that
Kevin Willprecht may need to tap into his equity to make payments if that is
what is equitable based on these facts and circumstances under the Ruff-
Fischer factors. On remand, if the court determines Wendy Willprecht is in
need of support and Kevin Willprecht has an ability to pay given his current
cash flow and property award, he may well need to utilize part of his net
property award of $3,562,998 to do so if that is deemed equitable. Otherwise,
it will be Wendy Willprecht who may be required to dissipate her property to
meet her needs. Some depletion or dissipation of property should not be a
trump card for either party in the determination of receiving or paying spousal
support. We should consider depletion of property in the context that it began:
to not require a spouse to deplete their property or be destitute before they may
be considered eligible for receiving spousal support by applying the equitable
doctrine for spousal support. It may be that both parties in a divorce will have
to use some of their property award to support themselves or the other party if
that is what is equitable in sharing the burdens of the divorce.
[¶33] For example, in Knudson v. Knudson, the wife was awarded over
$1,233,000 in property, which included four quarters of land, a life estate in
five quarters of land, with a five-year average of $86,516 in rental and mineral
royalty income, and was not responsible for any of the marital debt. 2018 ND
199, ¶¶ 14-15, 916 N.W.2d 793. This was a case where the wife worked on the
farm during the marriage. Id. at ¶ 14. However, her conduct was considered as
a contributing factor to the divorce and while the husband’s income averaged
more than hers, his income was sporadic, and there were times when she
earned more than he did. Id. The husband also was responsible for all the
marital debt. Id. We affirmed the district court’s denial of spousal support
under these circumstances, and the court’s rationale that the wife was able to
support herself financially in the lifestyle to which she had become accustomed
while she obtained her degree and license as a massage therapist, “without
substantially depleting her assets.” Id. at ¶ 21 (emphasis added).
[¶34] There will never be another case exactly like this one, as “[e]ach spousal
support determination is fact specific.” Lizakowski v. Lizakowski, 2017 ND 91,
¶ 22, 893 N.W.2d 508 (quoting Christian v. Christian, 2007 ND 196, ¶ 13, 742
14
N.W.2d 819). We need to allow the district court to apply all the Ruff-Fischer
factors, which includes their financial circumstances as shown by the property
owned at the time, its value at the time, its income producing capacity, if any,
to determine what is equitable. There is nothing in the Ruff-Fischer factors
that excludes the property award to either party from consideration in a
spousal support determination. We should not reduce the application of the
Ruff-Fischer factors to a game of King’s X.
[¶35] Lisa Fair McEvers
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