dissenting.
[¶ 22] I respectfully dissent from the majority opinion because the trial court’s findings of fact are not supported by the evidence, the conclusions of law are not supported by the findings of fact, and I am left with a definite and firm conviction the trial court made a mistake.
[¶ 28] Gaye Ketelsen asserts that the trial court erred in terminating her spousal support.
[¶ 24] The original decree was entered on June 25, 1997. The trial court found at that time Dale Ketelsen earned $20,000 a year and was the sole owner and operator of the Pingree Grain Elevator. The court valued the elevator at $324,599 which included a value for the elevator of $150,000 and an amount of working capital of $174,-599. The court awarded Gaye Ketelsen one-half of the total or $162,300, which is to be paid in 15 installments of $10,820 per year plus 6 percent interest per annum. The court found that the elevator was an income producing asset. It further awarded Gaye Ketelsen spousal support in the amount of $1,200 per month until either Dale Ketelsen retired or Gaye Ketelsen remarried, whichever occurred first.
[¶ 25] Following the entry of the original judgment, Gaye Ketelsen moved to alter or amend the judgment requesting that the court more clearly define retirement and require Dale Ketelsen to provide advance notice to her of his pending retirement. The trial court refused to create a definition of retirement, but did require Dale Ketelsen to give Gaye Ketelsen a ninety day written notice prior to his retirement. The trial court indicated in its memorandum opinion of September 11, 1997, that such notice would give Gaye Ketelsen “an opportunity to have a hearing to explore Dale’s anticipated financial condition after he retires.” Although the court did not believe that permanent spousal support was in order, it is clear that it recognized that Dale could “retire” and continue to earn an income close to what he earned while working. In fact, the court stated: “The reason the court used a benchmark such as retirement was that usually one’s income decreases at that time. If Dale were in a position to retire and did not see much of a reduction in income, this would not be in keeping with the court’s reasoning.” The trial court, thus, recognized that Dale Ketelsen’s “retirement” may not be consistent with the trial court’s use of retirement as a benchmark, i.e., reduction in one’s income.
[¶ 26] In accordance with the court’s memorandum, an amended judgment was filed on October 7, 1997. No appeal was taken from the first judgment or the amended judgment.
[¶ 27] On February 17, 1998, Dale Ketel-sen notified Gaye Ketelsen he would retire on June 1, 1998.
[¶ 28] On May 28, 1998, Gaye Ketelsen moved the court for an order continuing Dale Ketelsen’s spousal support to her. Dale Ketelsen resisted the motion for amendment of the judgment.
[¶ 29] Gaye Ketelsen’s position was that Dale Ketelsen’s income overall had not decreased and in fact had increased. She asserted he should therefore not be entitled to terminate spousal support based on “retirement.” Dale Ketelsen’s position was that he in fact retired on June 1, 1998, and applied for social security, which he anticipated would be $1,100 per month. In addition, he went to part-time work at the elevator drawing a salary of $800 per month gross. In his affidavit of July 31, 1998, Dale Ketelsen stated he “borrowed $10,677 from the elevator for the support of the plaintiff and myself.” He also claimed he would not have sufficient funds to maintain spousal support for the plaintiff because most of his assets were tied up in the elevator which needed all of the working capital available. He indicated he had withdrawn working capital to pay Gaye Ketelsen a property distribution payment.
*191[¶ 30] The trial court in its findings of fact filed on November 30, 1998, found the defendant’s net monthly income from the elevator was $640 and his social security benefits were $1,100 per month. The trial court also found “the defendant has had to borrow money from the elevator to pay the property distribution installment to the plaintiff.” The trial court further found: “The court does not lose sight of the fact that the defendant is in a difficult financial position because he cannot sell the elevator and must borrow from it to make the annual payment to Gaye.” The court concluded it was appropriate to extend the spousal support at the reduced amount of $800 per month through February 1999 at which time Gaye Ketelsen would be receiving social security benefits herself. A second amended judgment was entered on November 30, 1998. Gaye Ketelsen appeals from this second amended judgment.
[¶ 31] The issue before the trial court on the motion of Gaye Ketelsen was whether Dale Ketelsen had in fact had a decrease in his income since the date of the original decree. The evidence reveals that at the time the original divorce judgment was entered Dale Ketelsen earned $20,000 per year and at the time of the motion hearing, he earned a salary of $9,600 and received social security benefits of $13,200 for a total gross income of $22j800. Simple math dictates that his income had increased and not decreased. Gaye Ketel-sen, on the other hand, went from receiving $1,200 per month spousal support to zero spousal support, leaving her with no income and forcing her to utilize her property division for living expenses. The majority indicates that there was “a change of circumstances” in that Gaye would start receiving social security benefits at age 62. The record indicates that in the original findings of fact the trial court found that Gaye would receive $330 per month at age 62 for social security benefits. This would leave her with an income of $3,960 as compared to Dale Ketelsen’s income of $22,800.
[¶ 32] Under these facts what then is the basis for the termination of spousal support? Although Dale Ketelsen never brought a motion to modify the amended judgment based on a material change in circumstances, it appears he resisted Gaye Ketelsen’s motion on that ground. It is well settled in our law that a party seeking a modification of spousal support bears the burden of showing a material change in circumstances warranting a modification of spousal support. Schmitz v. Schmitz, 1998 ND 203, ¶ 5, 586 N.W.2d 490. The majority opinion attempts valiantly to find “a material change in circumstances.” The fact is the trial court’s findings, including the implied finding, are not supported by the record and consequently there are no findings that support the conclusion there is a material change in circumstances in this case.
[¶ 33] The trial court in finding of fact number five on remand states:
That the defendant’s earning capacity is reduced to the point he cannot make his annual property distribution payment to the plaintiff from his own funds. To make this payment, he must borrow money from the elevator.
From this finding and the trial court’s memorandum opinion of October 20, 1998, the majority implies a finding that the current financial status of the elevator constitutes a significant change in circumstances warranting termination of Gaye Ketelsen’s spousal support. Yet there is no evidence' in the record that there has been a change in the financial status of the elevator since the time of the original judgment entered on June 25, 1997.
[¶ 34] Dale Ketelsen testified at the motion hearing and asserted in his affidavit dated July 31, 1998, that he withdrew working capital from the elevator to pay Gaye Ketelsen’s second property settlement payment. He claims he cannot take out more working capital without jeopardizing the elevator bond. Dale Ketelsen also testified he hired someone to try to sell the elevator in May 1998 and that an *192ad was placed first either in June or July 1998 in the Grainmen’s Mirror. He testified that as of the date of the hearing August 18, 1998, there were two inquiries, but that he did not have a buyer yet. The difficulty of selling a small town elevator, the situation with the elevator’s working capital and the difficulty in being bonded were all before the trial court at the time of the original judgment when the court determined the value of the elevator, the division of property and spousal support. The trial court stated in its memorandum opinion of April 5,1997:
The Knudson appraisal was properly done. Mr. O’Meara testified of some more recent sales. He also told the court of the difficulty in trying to sell such an elevator in a small North Dakota town. Many small town elevators stand vacant and cannot be sold. Farmers no longer buy them for personal storage. The future of the small country elevator is bleak. Dale’s elevator cannot load a unit train. Unit train started with 26 cars. The bigger elevators started loading 52 car trains. Now the larger elevators are loading 104 car trains. For an elevator that does not load any unit trains, the hand writing is on the wall. Even if a buyer could be found, a major problem is bonding. To be bonded, an elevator must have one dollar of capital for each bushel of grain. When Dale bought into the elevator in 1977, he had, and still has, difficulty in being bonded. His capital is somewhere around $200,000 and a line of credit from Atwood Kellogg allow him to be bonded. Specifically, the elevator has a 247,000 bushel capacity. To stay bonded Dale has $189,000 in working capital and for instance last fall borrowed $200,-000 from Atwood Kellogg to remain bonded. It is very doubtful a new buyer could do the same. What is likely is that Dale will run the elevator until he retires and, at best, he will sell it piecemeal, and, at worse, it will stand empty with little of the assets being sold.
The Knudson appraisal was persuasive in that it is professionally done by an appraiser in the -field. The O’Meara opinion is valuable because it addresses some more recent happenings on the small rural elevator front. This is also buttressed by the Joe Peltier letter.
Fully aware of the difficulty of selling this elevator and cognizant of the financial condition of the elevator, the trial court determined the value of the elevator and the working capital and awarded one-half to Gaye Ketelsen in 15 annual installments. He awarded sole ownership of the Pingree Elevator to Dale Ketelsen recognizing “the North Dakota Supreme Court has said that ‘[c]ourts should avoid a property distribution that will destroy or damage the ability of one of the parties to earn a livelihood or which will destroy the value of the property.’ Pankow v. Pankow, 371 N.W.2d 153, 157 (N.D.1985).”
[¶ 35] I can find nothing in the record that indicates the elevator’s financial condition and earnings status changed between the time of the original divorce on June 25, 1997, and the date of the motion hearing on August 18, 1998. The only thing that occurred was Dale Ketelsen’s actual attempt to sell the elevator within the two months prior to the hearing and his not yet having a buyer at the time of the hearing. All of these other matters, i.e., working capital, bonding difficulties and sale difficulties were contemplated at the time of the original decree.
[¶ 36] If in fact the viability of'the elevator without the involvement of Dale Ketel-sen in its operation is so precarious and Gaye Ketelsen must share in the risk of losing this asset or having its value greatly diminished by Dale Ketelsen’s full retirement from the operation or having it sold piecemeal for very little, then viewing property division and spousal support together under the facts of this case makes an award of permanent spousal support appropriate.
[¶ 37] Because the record does not support the court’s finding of a material *193change in circumstance, I conclude the second amended judgment must be reversed.
[¶ 38] Mary Muehlen Maring