concurring and dissenting.
[¶ 23] I concur in the result and in the reasoning of Part I of the majority opinion. I must depart with the statement in ¶ 20 of the majority opinion which states “[u]nder these facts the trial court did not have jurisdiction to modify the spousal support payments at this late date.” Although I agree with the trial court’s decision not to provide for additional spousal support, it is not because of lack of jurisdiction. Prior to August 1, 2001, N.D.C.C. § 14-05-24 provided:
Permanent alimony — Division of property. When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, and may compel either of the parties to provide for the maintenance of the children of the marriage, and to make such suitable allowances to the other party for support during life or for a shorter period as to the court may seem just, having regard to the circumstances of the parties respectively. The court from time to time may modify its orders in these respects.
[¶ 24] Case law made it clear the ability to modify the judgment pertained to spousal support, but not to property division. Kopp v. Kopp, 2001 ND 41, ¶ 5, 622 N.W.2d 726. With respect to spousal support, this Court has only recognized a lack of jurisdiction in the circumstance where there was neither an original award of spousal support nor a retention of jurisdiction to award support at a later date. Id.; Rudh v. Rudh, 517 N.W.2d 632, 633 (N.D.1994); Becker v. Becker, 262 N.W.2d 478, 484 (N.D.1978).
[¶ 25] We have also directed trial courts to explicitly retain jurisdiction when there is uncertainty about the future need for spousal support, van Oosting v. van Oosting, 521 N.W.2d 93, 101 (N.D.1994). However, we have never stated that in the absence of such explicit retention of jurisdiction a court lacks jurisdiction over motions to modify the judgment. In Quamme v. Bellino, the Court noted the jurisdiction to modify a support award continues “[a]t least as long as spousal support continues.” Quamme v. Bellino, 540 N.W.2d 142, 147 (N.D.1995). In Wheeler v. Wheeler, an original judgment reserved jurisdiction over support matters, but a second judgment incorporating a stipulation of the parties did not retain jurisdiction for further modifications of spousal support. Wheeler v. Wheeler, 548 N.W.2d 27, 29 (N.D.1996). In concluding the trial court had jurisdiction to modify the support provisions of the judgment, the Court stated:
On appeal, Gerridee first asserts that the district court lacked jurisdiction to modify the amended judgment. She argues that, while the original judgment included language specifically reserving continuing jurisdiction over support matters, the second stipulation and amended judgment deleted that language. Gerri-dee argues that jurisdiction to modify in the first appeal was premised upon this language in the original judgment, see Wheeler, supra, and deletion of that language was intended by the parties in their second stipulation to prevent fur*200ther modification of the support provisions.
Gerridee has misread our opinion in the first appeal. We did not imply that jurisdiction to modify the original judgment was dependent upon an express reservation of continuing jurisdiction in the judgment. As we explained in Wheeler, a court’s continuing jurisdiction to modify ongoing spousal support is statutory.
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We have interpreted that provision [N.D.C.C. § 14-05-24] to authorize modification of spousal support upon a showing of changed circumstances. E.g., Ramsdell v. Ramsdell, 454 N.W.2d 522 (N.D.1990); Schaff v. Schaff, 449 N.W.2d 570 (N.D.1989). This authority exists notwithstanding the decree contains the stipulation of the parties as to permanent alimony, although we have said the court “ ‘should be more reluctant to order a revision and modification of a decree where such a decree was based on agreement than where such decree is based on the finding of the court as to ability to pay.’ ” Eberhart v. Eberhart, 301 N.W.2d 137, 143 (N.D.1981), quoting Bryant v. Bryant, 102 N.W.2d 800, 807 (N.D.1960). We conclude the district court had jurisdiction to modify the support provisions of the judgment.
Id. at 29-30.
[¶ 26] Although the motion to modify in Wheeler was made at a time when there was ongoing spousal support, the above quoted language indicates the basis for jurisdiction arises not from the parties’ agreement nor from language retaining jurisdiction in the judgment but from the statute itself. See id.
[¶ 27] I am particularly reluctant to further restrict the jurisdiction of the courts to address spousal support by judicial decision when such a decision seems counter to the legislative recognition of continuing jurisdiction. Although the changes made to the statute which became effective on August 1, 2001, are not applicable to Ms. Bellefeuille’s motion, they are instructive of the legislature’s view of the scope of jurisdiction. The Legislative Assembly acknowledged the difference in jurisdiction to modify spousal support as opposed to property division by amending N.D.C.C. § 14-05-24 to deal only with property division and enacting N.D.C.C. § 14-05-24.1 to handle spousal support. 2001 N.D. Sess. Laws ch. 149, § 10. The latter section now provides:
Spousal support. Taking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for any period of time. The court may modify its spousal support orders.
The language does not suggest an intent to further restrict the jurisdiction of the courts to amend spousal support and I would not so hold.
[¶ 28] MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ„ concur.-