{ "contract_version": "1.0.0-draft.1", "data_as_of": "2026-08-06T02:50:22Z", "record": { "authority_type": "opinion", "body": "Judicial opinion", "canonical_key": { "content_hash": "84667992af518097", "source": "courtlistener" }, "citation_aliases": [ { "confidence": 0.7, "display_value": "Willprecht v. Willprecht", "normalized_value": "willprecht-v-willprecht-f70c0329", "scheme": "case-name", "source_id": "src:v1:us:opinion:courtlistener" } ], "court": null, "created_at": "2026-08-06T02:50:22Z", "heading": "Willprecht v. Willprecht", "identity_state": "complete", "jurisdiction": "us-federal", "kind": "authority_record", "record_id": "rec:v1:ac6c4288-0983-76a7-85e1-e0db19efe849", "schema_version": "1.0.0-draft.1", "slug": "willprecht-v-willprecht-f70c0329", "title": "Willprecht v. Willprecht" }, "verification": { "active_defect_ids": [], "as_of": "2026-08-05", "computed_at": "2026-08-06T02:50:22Z", "currentness": "2021-02-18", "grade": "B", "input_sha256": "84667992af518097df5c081febf35a42d9526745ee675e8efcc65bca5debdab9", "kind": "verification", "limitations": [ "Text was ingested from CourtListener public full text.", "Not yet matched byte-for-byte to an official court/reporter PDF or HTML edition.", "Treat as researchable public law text with an open official-verification task." ], "official_receipts": [], "policy_version": "grade-policy-v1-bulk-courtlistener", "reason": "CourtListener public full text captured with content hash; not yet matched to an official court or reporter edition.", "reason_code": "courtlistener_public_full_text_unverified_against_official_reporter", "schema_version": "1.0.0-draft.1", "source_classes": [ "independent_structured_corpus" ], "verified_at": null, "version_id": "ver:v1:1a0ef405-2a4c-7c27-8408-556146b41085" }, "version": { "current_through": "2021-02-18", "decision_date": "2021-02-18", "effective_date": null, "finality_status": "public_full_text_unverified", "kind": "authority_version", "normalization_warnings": [ "Bulk CourtListener import; official reporter comparison pending." ], "normalized_text_sha256": "84667992af518097df5c081febf35a42d9526745ee675e8efcc65bca5debdab9", "observed_at": "2026-08-06T02:50:22Z", "parser_id": "bulk-courtlistener-v1", "parser_version": "1", "primary_text": "FILED\n IN THE OFFICE OF THE\n CLERK OF SUPREME COURT\n FEBRUARY 18, 2021\n STATE OF NORTH DAKOTA\n\n IN THE SUPREME COURT\n STATE OF NORTH DAKOTA\n\n 2021 ND 17\n\nWendy Michele Willprecht, Plaintiff and Appellee\n v.\nKevin John Willprecht, Defendant and Appellant\n\n No. 20200195\n\nAppeal from the District Court of Cass County, East Central Judicial District,\nthe Honorable John C. Irby, Judge.\n\nREVERSED AND REMANDED.\n\nOpinion of the Court, by Crothers, Justice, in which Chief Justice Jensen, and\nJustices VandeWalle and Tufte joined. Justice McEvers filed an opinion\nconcurring in part and dissenting in part.\n\nJason W. McLean, Fargo, ND, for plaintiff and appellee.\n\nRobert J. Schultz, Fargo, ND, for defendant and appellant.\n Willprecht v. Willprecht\n No. 20200195\n\nCrothers, Justice.\n\n[¶1] Kevin Willprecht appeals from an amended judgment altering his child\nsupport and spousal support obligations. Kevin Willprecht argues the district\ncourt erred in awarding spousal support without reconsidering the Ruff-\nFischer guidelines, by failing to analyze Wendy Willprecht's spousal need as\nreflected by her living expenses, and because the spousal support award\nexceeded Kevin Willprecht's ability to pay. We reverse and remand the district\ncourt's spousal support award for further proceedings consistent with this\nopinion.\n\n I\n\n[¶2] Wendy and Kevin Willprecht were married on December 18, 1999. They\nhave four children together, three of whom remain minors. Wendy commenced\nthis divorce action in May 2018 and trial was held on March 4-5, 2019. In its\noriginal decision the district court determined Wendy Willprecht was not\nentitled to spousal support. The court awarded Wendy Willprecht assets\ntotaling $2,076,302, including an equalization payment of $750,000. The\nequalization payment was to be paid by Kevin Willprecht at $62,825 per year\nfor 15 years with interest at 3%.\n\n[¶3] Both parties appealed. Willprecht v. Willprecht, 2020 ND 77, 941 N.W.2d\n556. This Court affirmed the allocation of assets and liabilities. Id. at ¶ 25.\nThis Court concluded it was reversible error to fail to include a step-down\nprovision for child support and remanded the issue of spousal support because\nthe child support obligation was originally tied into the district court's decision\non spousal support. Id. at ¶ 43. On remand, the district court held a status\nconference and asked what would be required to \"button this one up.\" Kevin\nWillprecht requested additional findings based on the record. The district court\nagreed and requested each party submit written arguments.\n\n 1\n [¶4] The district court issued an amended judgment on July 1, 2020. In the\namended judgment, Kevin Willprecht's child support obligation for four\nchildren was $3,168 per month until September 2020. With the step-down\nprovision, Kevin Willprecht's obligation decreased to $2,991 per month for\nthree children in October 2020, $2,496 per month for two children in July 2023,\nand $1,509 per month for one child in July 2026. Under the step-down\nprovision, Kevin Willprecht's total child support obligation is $80,781 less than\nthe obligation established in the district court's initial decision.\n\n[¶5] In addressing the spousal support request, the court made the following\nfindings:\n\n \"In this Court's Memorandum Opinion and Order of\n April 29, 2019, the situation of the parties was considered using\n the Ruff-Fischer Guidelines. In sum, the Court found that given\n Wendy's income and receipt of an annual property settlement\n equalization payment more cash would be flowing into her\n household than would be remaining in Kevin's. In addition, Kevin\n paid all of the debts of the parties, including household expenses\n that were put on a credit card. Those considerations aside, there\n does remain a disparity in income. It was the intention of this\n Court to provide what amounted to temporary rehabilitative\n spousal support by not allowing Kevin a ‘step-down' in his child\n support calculations. Clearly, that was an error. However, Kevin's\n child support obligation will diminish over time. This will lead to\n a greater ability to pay spousal support.\n\n \"Given the increased ability to pay due to a diminishing child\n support obligation, some form of rehabilitative spousal support is\n appropriate. Wendy has made a compelling argument that she\n should be entitled, under all circumstances, to an award of\n rehabilitative spousal support in the amount of $1,030 for the\n months of June 2020 through September 2020, and increasing that\n award to $1,735 per month in October 2020 through June 2028.\n This award of rehabilitative spousal support is made with full\n recognition that Kevin may have to tap into his equity to make the\n payments. The Judgment of this Court will be amended to include\n rehabilitative spousal support as indicated herein. The\n\n 2\n rehabilitative spousal support will terminate prior to the ordered\n expiration should Wendy cohabitate, remarry, or die.\"\n\nKevin Willprecht's total spousal support obligation to Wendy Willprecht under\nthe amended judgment is $165,475. Kevin Willprecht appeals from that\njudgment.\n\n II\n\n[¶6] Kevin Willprecht asserts the district court erred in awarding spousal\nsupport without reconsidering the Ruff-Fischer guidelines. On remand, rather\nthan re-analyzing the Ruff-Fischer guidelines, the district court referred to its\nanalysis of those guidelines in the original decision.\n\n[¶7] A decision on spousal support is subject to the clearly erroneous standard\nof review. Schmuck v. Schmuck, 2016 ND 87, ¶ 6, 882 N.W.2d 918. The district\ncourt must consider the Ruff-Fischer guidelines when determining if an award\nof spousal support is appropriate. Overland v. Overland, 2008 ND 6, ¶ 16, 744\nN.W.2d 67. The Ruff-Fischer guidelines are: (1) the respective ages of the\nparties; (2) the parties' earning abilities; (3) the duration of the marriage and\nthe conduct of the parties during the marriage; (4) their station in life; (5) the\ncircumstances and necessities of each party; (6) the health and physical\ncondition of each party; (7) their financial circumstances as shown by the\nproperty owned at the time, its value at the time, its income-producing\ncapacity, if any, whether accumulated before or after the marriage; and (8)\nother matters as may be material. Willprecht, 2020 ND 77, ¶ 19. A mechanical\napplication of the Ruff-Fischer guidelines is not required, but the court must\nexplain the rationale for its decision. Id. Property distribution and spousal\nsupport are interrelated and often must be considered together. Id. at ¶ 40.\n\n[¶8] In the district court's original findings of fact, conclusions of law, and\norder for judgment, it concluded:\n\n \"As with property division, the Court must consider the Ruff-\n Fischer Guidelines in making its determination of spousal support.\n The parties were 42 and 45 years of age respectively, at the date of\n the hearing. Both parties are healthy. Kevin's drinking appears to\n\n 3\n be the root cause of the demise of this near 20-year marriage.\n Although, the parties accumulated farm assets during the course\n of their marriage, they appeared to be living a life typical of a\n middle-income couple. They owned a nice home, drove decent\n vehicles, provided for their children and took occasional family\n vacations.\n\n \"Wendy works part-time for Sargent County at Emergency\n Management and occasionally substitute teaches. Her income is\n approximately $2,100 per month. She is also provided with a single\n health insurance coverage. She will also be netting approximately\n $19,333 in farm rent. Her annual earned income ($2,100 x 12) and\n her farm rent, $19,333 is $44,533. Kevin's annual projected\n income, before taxes is $144,078. From this amount he will be\n paying approximately $24,000 in health insurance premiums.\n Kevin's annual child support obligation will exceed $36,000 per\n year. In addition, he will be making an equalization payment\n annually to Wendy in the amount of approximately $63,000. As a\n result, Wendy will have more spendable income available to her\n household than Kevin. Kevin is obligated to pay all of the debts of\n the parties. Wendy has a quality home with no mortgage obligation\n against it. Her vehicle is paid for. The Court did not include any\n ‘step-down' calculations for Kevin's child support. This was done\n deliberately by the Court in light of the income disparity of the\n parties.\"\n\n[¶9] In its amended order the district court did not address each of the\nguidelines. However, the court referenced its previous analysis of the Ruff-\nFischer guidelines. The court was not required to engage in a mechanical\napplication of the Ruff-Fischer guidelines as part of the rationale for its\ndetermination. Willprecht, 2020 ND 77, ¶ 19. While property distribution and\nspousal support are ordinarily considered together, the court did not have the\noption to re-analyze property distribution here because that allocation was\naffirmed on the first appeal. Id. at ¶ 25; Viscito v. Christianson, 2016 ND 139,\n¶ 7, 881 N.W.2d 633 (quoting Carlson v. Workforce Safety & Ins., 2012 ND 203,\n¶ 16, 821 N.W.2d 760) (\"The mandate rule, a more specific application of law\nof the case, requires the trial court to follow pronouncements of an appellate\ncourt on legal issues in subsequent proceedings of the case and to carry the\n\n 4\n [appellate court's] mandate into effect according to its terms. . . . and we retain\nthe authority to decide whether the district court scrupulously and fully\ncarried out our mandate's terms.\"). The only issues on remand were child\nsupport and spousal support. Under these circumstances, the court's\nincorporation of its previous Ruff-Fischer analysis rather than re-analyzing all\nof the factors was not clearly erroneous.\n\n III\n\n[¶10] Kevin Willprecht argues the district court failed to consider Wendy\nWillprecht's need for spousal support.\n\n[¶11] The district court must make spousal support awards \"in consideration\nof the needs of the spouse seeking support and of the supporting spouse's needs\nand ability to pay.\" Overland, 2008 ND 6, ¶ 16. District courts are \"not required\nto complete a calculation to ensure each party's assets, debts, and expenses are\naccounted for in determining spousal support; however, a clear description of\nthe financial situation of each party is helpful for this Court in understanding\nthe district court's rationale in awarding spousal support.\" Berg v. Berg, 2018\nND 79, ¶ 11, 908 N.W.2d 705 (citing Ulsaker v. White, 2009 ND 18, ¶ 9, 760\nN.W.2d 82). \"‘We will not set aside the trial court's determinations on property\ndivision or spousal support for failure to explicitly state the basis for its\nfindings if that basis is reasonably discernible by deduction or inference.'\"\nLindberg v. Lindberg, 2009 ND 136, ¶ 31, 770 N.W.2d 252 (quoting Routledge\nv. Routledge, 377 N.W.2d 542, 545 n.1 (N.D. 1985); Meyer v. Meyer, 2004 ND\n89, ¶ 23, 679 N.W.2d 273). However, remand is necessary where we are unable\nto discern the basis for a district court's spousal support decision. Lindberg, at\n¶ 31.\n\n[¶12] When discussing Wendy Willprecht's monthly living expenses and needs\nin its initial decision, the district court stated:\n\n \"Wendy has a quality home with no mortgage obligation against it.\n Her vehicle is paid for. The Court did not include any ‘step-down'\n calculations for Kevin's child support. This was done deliberately\n\n 5\n by the Court in light of the income disparity of the parties. The\n Court concludes that no spousal support is required.\"\n\nThe district court did not address Wendy Willprecht's estimated monthly living\nexpenses or need for support in its memorandum and order on remand. Rather,\nthe court addressed only Kevin Willprecht's increased ability to pay, and\nstated, \"Wendy has made a compelling argument that she should be entitled,\nunder all circumstances, to an award of rehabilitative spousal support. . . .\"\nWhile the court was not required to provide a precise calculation of Wendy\nWillprecht's need, it was required to provide a discernible basis for the court's\ndecision. Without further explanation of Wendy Willprecht's need for spousal\nsupport, we are unable to discern the basis for the court's spousal support\ndecision.\n\n IV\n\n[¶13] Kevin Willprecht argues the district court erred in awarding spousal\nsupport to Wendy Willprecht in excess of his ability to pay. He asserts the\nspousal support exceeds his income. Wendy Willprecht argues Kevin\nWillprecht possesses the ability to pay spousal support and the record lacks\nevidence to show otherwise. She asserts Kevin Willprecht paid $5,000 in\nmonthly combined support obligations, without incident, from September 2018\nthrough April 2019 under an interim agreement prior to their divorce being\nfinalized.\n\n[¶14] This Court previously reversed an award of spousal support when the\nsupport obligation was unrealistic. See Weir v. Weir, 374 N.W.2d 858, 866 (N.D.\n1985). In Weir, the Court noted the husband received a gross salary of $79,392,\nand after deduction of taxes was left with a net income of $58,719.36. Id. at\n865. After paying spousal support, child support, and other loan obligations\nand living expenses, the husband was left with a monthly deficit of $1,201.63,\nand without his expected yearly bonus, would be left in dire straits. Id. at 865-\n66. In its decision to reverse and remand, this Court stated:\n\n \"No one has arithmetically demonstrated to us, and we have\n been unable on the record before us to discern on our own, that it\n\n 6\n is possible for Patrick to make the increased spousal support\n payments in addition to making reasonable payments on his debts\n and paying for his own living expenses. Therefore, we are left with\n a definite and firm conviction that the trial court made a mistake\n in increasing the spousal support payments to $2,200 per month\n for 1985 and 1986 and in imposing spousal support payments of\n $1,800 per month for the years 1987 through 1989. We conclude,\n however, that the trial court's imposition of $1,500 per month\n spousal support payments commencing in 1990, and continuing\n thereafter for a period of 20 years or until Rebecca marries is not\n clearly erroneous.\"\n\nId. at 866.\n\n[¶15] Our cases establish that a spouse is not required to deplete property\ndistribution in order to live. Hagel v. Hagel, 2006 ND 181, ¶ 14, 721 N.W.2d 1\n(citing Sommers v. Sommers, 2003 ND 77, ¶ 15, 660 N.W.2d 586; Fox v. Fox,\n1999 ND 68, ¶ 24, 592 N.W.2d 541). Although those holdings have not been\napplied to the spouse making spousal support payments, a balanced\napplication of the law requires that the principle apply to the obligor as well.\n\n[¶16] The district court found Kevin Willprecht's five-year average income,\nadjusted for loss of some farmland transferred to Wendy Willprecht, was\n$153,556. Under its original order, the court found Kevin Willprecht's gross\nannual income was $144,078, and his net monthly income after taxes was\n$8,205. Although the court made no finding in its amended order as to Kevin\nWillprecht's net income, it found his gross annual income was $153,556. Kevin\nWillprecht asserts his after-tax income is $101,329 per year, resulting in a net\nmonthly income of $8,444.08. Kevin Willprecht is currently paying $2,991 per\nmonth in child support, resulting in an annual obligation of $35,892. He also\nhas an annual obligation to Wendy Willprecht of $62,285 per year for property\nequalization, which equates to $5,190.41 per month. Considering these two\nobligations alone, Kevin Willprecht's monthly divorce-related obligations are\n$8,181, leaving him with $263.08 per month for all other living expenses.\n\n[¶17] When Kevin Willprecht's monthly spousal support payment of $1,735 is\nadded to the other divorce-related obligations, Kevin Willprecht's obligations\n\n 7\n exceed his earned income and leave him with a monthly deficit of $1,471.92\nand an annual deficit of $17,663.04. We were provided with no explanation\nhow Kevin Willprecht could meet these obligations without selling assets or\notherwise incurring debt. To the contrary, the district court's amended order\nseemingly acknowledged the inability to pay, stating, \"This award of\nrehabilitative spousal support is made with full recognition that Kevin may\nhave to tap into his equity to make the payments.\"\n\n[¶18] Although the district court concluded a new income disparity arose\nbecause of step-down provisions being added to the child support obligation, it\nfailed to adequately assess Kevin Willprecht's ability to meet the new\nobligation for spousal support. See Christianson v. Christianson, 2003 ND 186,\n¶ 20, 671 N.W.2d 801 (\"Equalization is not a goal of spousal support, and\nequalization of income between divorcing spouses is not a measure of spousal\nsupport although it is a factor that can be considered.\") (citation omitted). This\nCourt is left with a definite and firm conviction a mistake has been made\nbecause neither Wendy Willprecht nor the district court provided a calculation\nof how Kevin Willprecht can meet his monthly obligations under the amended\norder without selling assets or incurring debt.\n\n V\n\n[¶19] We reverse and remand the district court's spousal support award for\nfurther proceedings consistent with this opinion.\n\n[¶20] Jon J. Jensen, C.J.\n Gerald W. VandeWalle\n Daniel J. Crothers\n Jerod E. Tufte\n\nMcEvers, Justice, concurring in part and dissenting in part.\n\n[¶21] I agree with the majority, that this matter should be returned to the\ndistrict court for further consideration of Wendy Willprecht's needs versus\nKevin Willprecht's ability to pay. I also agree with the majority that the court\n\n 8\n did not have the option to change the property distribution based on the\nparameters of this Court's remand.\n\n[¶22] This Court has repeatedly said property division and spousal support are\nintertwined and the district court may consider them together on remand.\nMarschner v. Marschner, 2001 ND 4, ¶ 23, 621 N.W.2d 339 (holding division of\nproperty not clearly erroneous on appeal, but because issues of property\ndivision and spousal support are intertwined, the district court may revisit the\nproperty division on remand); Mertz v. Mertz, 2015 ND 13, ¶ 27, 858 N.W.2d\n292 (same); Overland v. Overland, 2008 ND 6, ¶ 21, 744 N.W.2d 67 (same);\nCorbett v. Corbett¸ 2001 ND 113, ¶ 22, 628 N.W.2d 312 (same); Striefel v.\nStriefel, 2004 ND 210, ¶ 20, 689 N.W.2d 415 (affirming spousal support award,\nreversing marital property award, and remanding for further consideration on\nboth issues). We did not explicitly include the often repeated legal maxim, but\neven if the property division cannot be revised, it does not mean it cannot be\nconsidered in the other side of the equation in determining the appropriateness\nof spousal support on remand.\n\n[¶23] The reason to generally allow the district court to reconsider both\nspousal support and division of property on remand is simple: it is important\nthat we not tie the court's hands when the two issues are intertwined. We have\nalso frequently stated that questions of property division and spousal support\ncannot be considered separately or in a vacuum. Marschner, 2001 ND 4, ¶ 13.\nSee also Stock v. Stock, 2016 ND 1, ¶ 13, 873 N.W.2d 38 (same); Fox v. Fox,\n1999 ND 68, ¶ 22, 592 N.W.2d 541 (same); Schmaltz v. Schmaltz, 1998 ND 212,\n¶ 17, 586 N.W.2d 852 (same). While we may have tied one hand, we have not\ntied the other, nor have we blinded the court to what has already been done.\n\n[¶24] As the majority points out, we have stated a spouse is not required to\ndeplete their property distribution in order to live. Majority, at ¶ 15 (citing\nHagel v. Hagel, 2006 ND 181, ¶ 14, 721 N.W.2d 1 (citations omitted)). The\nmajority states \"a balanced application of the law requires the principle apply\nto the obligor as well.\" Id. (citing to no authority). This Court has not previously\napplied this premise to a spouse ordered to pay spousal support. I disagree\nwith the majority expanding the general rule on depleting an award of marital\n\n 9\n property to the spouse who may be required to pay spousal support payments.\nWhile applying the same principle to the obligor (the paying spouse) as to the\nobligee (the receiving spouse) sounds fair, in reality it may not be. I dissent to\nthe extension as some type of bright line rule that if an obligor may need to\ndissipate any portion of their property award, they should not be required to\npay spousal support. I agree that depletion or dissipation of property is a factor\nto consider when applying the Ruff-Fischer factors and the parties' needs\nversus ability to pay, but it should not be used as a rule to foreclose the\npossibility of a finding need or a finding ability to pay.\n\n[¶25] In Hagel, cited by the majority, the district court found one party had a\nneed for support, but denied spousal support because that party also received\nan equal distribution of property, much of which was cash that was available\nto her. 2006 ND 181, ¶ 14. This Court reversed and remanded when the\ndivision of property granted one party income producing property and the other\nparty a predominantly cash award. Id. at ¶¶ 13-14. Here, Kevin Willprecht\nwas awarded a much larger share of the property, much of it income producing,\nwhile Wendy Willprecht received a much smaller share, and little income\nproducing property. She should not be penalized in consideration of spousal\nsupport because some of the property she was awarded was in cash payments.\n\n[¶26] Instead of extending the concept of depletion of property to an obligor,\nwe should consider the underlying rationale for applying it to the spouse in\nneed of spousal support. The first case that this Court discussed depletion of\nproperty in regard to the award of spousal support was Bakes v. Bakes, 532\nN.W.2d 666, 669 (N.D. 1995), where it was stated, \"Dorothy, as a\ndisadvantaged spouse, is not required to deplete her property distribution in\norder to live.\" (Emphasis added). In Bakes, this Court affirmed an award of\nrehabilitative spousal support, and said \"[a] spouse's need for rehabilitative\nsupport in a long-term marriage is not limited to the prevention of destitution,\nbut may be awarded to balance the burdens created by the parties' separation\nwhen it is impossible to maintain two households at the predivorce standard\nof living.\" Id. at 668 (citation omitted). In Bakes, this Court did not fashion a\nbright line rule, rather it was pointed out that \"[o]f course, an award of spousal\nsupport must be made in the light of the needs of the disadvantaged spouse\n\n 10\n and the supporting spouse's needs and ability to pay.\" Id. at 668-69 (citation\nomitted).\n\n[¶27] In applying the depletion of property concept in Bakes, this Court relied\non Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D. 1994), which stated: \"[a] spouse's\nneed for rehabilitation is not limited to the ‘prevention of destitution,' but can\nalso be based on their standard of living before the divorce.\"1 (Relying on\nWahlberg v. Wahlberg, 479 N.W.2d 143, 145 (N.D. 1992)). The Ruff-Fischer\nfactors require consideration of:\n\n [T]he respective ages of the parties, their earning ability, the\n duration of the marriage and conduct of the parties during the\n marriage, their station in life, the circumstances and necessities of\n each, their health and physical condition, their financial\n circumstances as shown by the property owned at the time, its value\n at the time, its income-producing capacity, if any, whether\n accumulated before or after the marriage, and such other matters\n as may be material.\n\nWiege, at 711 (emphasis added) (citations omitted). Other matters may include\nretirement savings or pensions, the liquidity or income-producing nature of the\nproperty distributed and whether a disadvantaged spouse will have to use up\nthat property to live. Id. Spousal support may be awarded after consideration\nof the Ruff-Fischer factors to either maintain the parties' pre-divorce standard\nof living or to equitably share the burden caused by the divorce. Id. at 712-13.\nIt appears this Court only intended to create the bright line rule that a spouse\nneed not dissipate or deplete their property to be eligible to receive spousal\nsupport.\n\n1It is noted that Wiege v. Wiege, 518 N.W.2d 708 (N.D. 1994) has been overruled to the extent that a\nseparate or independent \"disadvantaged spouse\" finding is a prerequisite to awarding rehabilitative\nspousal support. Sack v. Sack, 2006 ND 57, ¶ 14, 711 N.W.2d 157. However, in overruling the\nrequirement of making an independent finding of a \"disadvantaged spouse\" before making a spousal\nsupport award, we did not say that being disadvantaged is not something a district court cannot\nconsider. Rather, in Sack, this Court stated, \"[s]uch a requirement appears to be no more than a\nrepetitive and onerous exercise for the parties and the courts, which are already faced with\nconsiderable procedural and substantive burdens. Nor is a separate test consistent with our case law\nwhich has clearly, though sporadically, emphasized the lack of ‘rigid rules for determining whether or\nnot to award [spousal support] and the amount of such award.'\" Id. at ¶ 11 (citation omitted).\n\n 11\n [¶28] This concept was continued in Fox, cited by the majority, where this\nCourt reversed the district court when it did not award spousal support,\napparently because the court found there was no need for spousal support\nbecause the spouse was adequately provided for by her property distribution.\n1999 ND 68, ¶ 24. In Fox, the parties were married for 32 years, the wife had\nbeen a homemaker during the marriage and stayed home with the children,\nand the husband was a doctor. Id. at ¶ 23. Even after Dr. Fox became disabled,\nhis disability income was $17,200 per month and Mrs. Fox would have faced\ndifficulty finding any job other than some entry level position. Id. While this\nCourt reversed the court on the division of property and the spousal support\naward for a number of reasons, it was also noted that we have adopted the\n\"equitable doctrine\" of rehabilitative spousal support and its purpose is not\nlimited to assisting a disadvantaged spouse in achieving educational goals, but\nincludes enabling a disadvantaged spouse to achieve suitable and appropriate\nself-support. Id. at ¶ 20. We also noted that questions of property division and\nspousal support cannot be considered separately or in a vacuum, especially\nwhen there is a large difference in earning power between the parties. Id. at\n¶ 22. The court may also consider the standard of living of the parties in a long\nterm marriage and the need to balance the burden created by the divorce when\nit is not possible to maintain two households at the pre-divorce standard of\nliving. Id. at ¶ 20.\n\n[¶29] Following remand, this Court affirmed a valuation and distribution of\nproperty resulting in the parties receiving nearly an equal amount, with each\nbeing awarded over $1.5 million, with Mrs. Fox receiving about $26,000 more\nthan Dr. Fox. Fox v. Fox, 2001 ND 88, ¶ 10, 626 N.W.2d 660. Despite a large\naward of property, which slightly favored Mrs. Fox, we also affirmed an award\nof spousal support to her of $6,000 per month until Dr. Fox attained age 65. Id.\nat ¶ 13. We noted in adopting the equitable doctrine for spousal support, this\nCourt has rejected the \"minimalist doctrine,\" which aims to educate and\nretrain the recipient for minimal self-sufficiency. Id. at ¶ 24 (relying on Marcia\nO'Kelly, Entitlements to Spousal Support After Divorce, 61 N.D.L.Rev. 225, 242\n(1985)).\n\n 12\n [¶30] \"We have reversed a decision of the trial court that required a spouse to\nuse her property distribution payments to rehabilitate herself, while\npermitting the other spouse to retain income-earning property and use the\nincome from that property to make the cash property distribution payments.\"\nMarschner, 2001 ND 4, ¶ 16 (citations omitted). The Marschner case, as here,\ninvolved the district court attempting to preserve a family farm. Id. at ¶ 17.\nSimilarly, this Court in Marschner was concerned about requiring the spouse\nwho would continue farming to be able to pay spousal support and a cash\npayment as part of the property distribution. Id. In Marschner, each party was\nawarded virtually an equal share of the marital property. Id. at ¶ 14. As noted\nin Marschner, if immediate spousal support cannot be awarded because of the\nongoing property distribution payments, the matter should be reserved. Id. at\n¶ 21. \"Preserving the family farm is not to be done at all costs nor should it\nengulf all other factors.\" Id. at ¶ 18. This Court held the court's preservation\nof the farm, which required denial of spousal support, was clearly erroneous.\nId. at ¶ 23.\n\n[¶31] Unlike Marschner, where the district court awarded each party nearly\nan equal share of the marital property, Wendy Willprecht was only awarded\nabout one-third of the marital estate, a net award of $2,076,302 compared to\nKevin Willprecht's $3,562,998. Willprecht v. Willprecht, 2020 ND 77, ¶ 18, 941\nN.W.2d 556. Also unlike Marschner, where the marital estate was small, here\nthere is a large marital estate. See Marschner, 2001 ND 4, ¶ 17 (referring to\nthe marital estate as small). Part of the reason Kevin Willprecht may have\ndifficulty paying spousal support without dissipation of property is because he\nis making annual property \"equalization\" payments of $62,825 per year.\nWillprecht, 2020 ND 77, ¶ 20. The annual payments did little to equalize the\nburdens of the divorce, particularly when the payments may be made over\nfifteen years at three percent interest. If Wendy Willprecht was awarded the\nsame amount of property, but had been awarded more farmland instead of an\nequalization payment, it may have had an effect on both her need and Kevin\nWillprecht's ability to pay. However, that is water under the bridge as the\nproperty award has been affirmed. Id. at ¶ 25.\n\n 13\n [¶32] It is my position that the district court did not err by recognizing that\nKevin Willprecht may need to tap into his equity to make payments if that is\nwhat is equitable based on these facts and circumstances under the Ruff-\nFischer factors. On remand, if the court determines Wendy Willprecht is in\nneed of support and Kevin Willprecht has an ability to pay given his current\ncash flow and property award, he may well need to utilize part of his net\nproperty award of $3,562,998 to do so if that is deemed equitable. Otherwise,\nit will be Wendy Willprecht who may be required to dissipate her property to\nmeet her needs. Some depletion or dissipation of property should not be a\ntrump card for either party in the determination of receiving or paying spousal\nsupport. We should consider depletion of property in the context that it began:\nto not require a spouse to deplete their property or be destitute before they may\nbe considered eligible for receiving spousal support by applying the equitable\ndoctrine for spousal support. It may be that both parties in a divorce will have\nto use some of their property award to support themselves or the other party if\nthat is what is equitable in sharing the burdens of the divorce.\n\n[¶33] For example, in Knudson v. Knudson, the wife was awarded over\n$1,233,000 in property, which included four quarters of land, a life estate in\nfive quarters of land, with a five-year average of $86,516 in rental and mineral\nroyalty income, and was not responsible for any of the marital debt. 2018 ND\n199, ¶¶ 14-15, 916 N.W.2d 793. This was a case where the wife worked on the\nfarm during the marriage. Id. at ¶ 14. However, her conduct was considered as\na contributing factor to the divorce and while the husband's income averaged\nmore than hers, his income was sporadic, and there were times when she\nearned more than he did. Id. The husband also was responsible for all the\nmarital debt. Id. We affirmed the district court's denial of spousal support\nunder these circumstances, and the court's rationale that the wife was able to\nsupport herself financially in the lifestyle to which she had become accustomed\nwhile she obtained her degree and license as a massage therapist, \"without\nsubstantially depleting her assets.\" Id. at ¶ 21 (emphasis added).\n\n[¶34] There will never be another case exactly like this one, as \"[e]ach spousal\nsupport determination is fact specific.\" Lizakowski v. Lizakowski, 2017 ND 91,\n¶ 22, 893 N.W.2d 508 (quoting Christian v. Christian, 2007 ND 196, ¶ 13, 742\n\n 14\n N.W.2d 819). We need to allow the district court to apply all the Ruff-Fischer\nfactors, which includes their financial circumstances as shown by the property\nowned at the time, its value at the time, its income producing capacity, if any,\nto determine what is equitable. There is nothing in the Ruff-Fischer factors\nthat excludes the property award to either party from consideration in a\nspousal support determination. We should not reduce the application of the\nRuff-Fischer factors to a game of King's X.\n\n[¶35] Lisa Fair McEvers\n\n 15", "publication_date": "2021-02-18", "publication_status": "public", "record_id": "rec:v1:ac6c4288-0983-76a7-85e1-e0db19efe849", "schema_version": "1.0.0-draft.1", "source_locators": [ { "artifact_id": "art:v1:31eca271-d6c0-7d45-8622-7ce691037f1e", "locator": "full-text", "quote_sha256": "84667992af518097df5c081febf35a42d9526745ee675e8efcc65bca5debdab9" } ], "status": "current", "structure_sha256": "84667992af518097df5c081febf35a42d9526745ee675e8efcc65bca5debdab9", "text_scope": { "excludes": [ "footer", "navigation", "annotations", "headnotes", "summaries", "editorial_content" ], "includes": [ "opinion_body" ] }, "version_id": "ver:v1:1a0ef405-2a4c-7c27-8408-556146b41085" } }