IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 17

Wendy 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.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

FEBRUARY 18, 2021 

STATE OF NORTH DAKOTA
1

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 RuffFischer 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. 
2

[¶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 
3

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 RuffFischer 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 
4

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 RuffFischer 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 
5

[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 
6

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 
7

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 
8

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 
9

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 
10

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 
11

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.

1 It 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).
12

[¶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)).
13

[¶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.
14

[¶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 RuffFischer 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 
15

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