Baker v. Baker

• Decision Date: 17 July 1997
• Docket Number: No. 960333,960333
• Parties: LaRue A. BAKER, Plaintiff and Appellee, v. Ralph R. BAKER, Defendant and Appellant. Civil
• Court: North Dakota Supreme Court

Page 806

566 N.W.2d 806

1997 ND 135

LaRue A. BAKER, Plaintiff and Appellee, v. Ralph R. BAKER, Defendant and Appellant.

Civil No. 960333.

Supreme Court of North Dakota.

July 17, 1997.

Carol Ronning Kapsner (argued), of Kapsner & Kapsner, Bismarck, for plaintiff and appellee.

Rauleigh D. Robinson (argued), Bismarck, for defendant and appellant.

MESCHKE, Justice.

¶1 Ralph R. Baker appealed an amendment to a divorce decree ending LaRue A. Baker's conditional duty to pay him $300 monthly spousal support because he was "cohabiting in an informal marital relationship." We affirm the trial court's finding that Ralph's cohabitation invoked the decree's condition, and we therefore affirm the amended decree.

¶2 Ralph and LaRue married in 1963 and raised two children who were adults when LaRue sought a divorce in 1992. In granting the divorce, the trial court said the "marriage was dysfunctional almost from its inception."

¶3 When divorced, Ralph was 49 years old, had an eighth grade education, and had been a heavy equipment operator. However, he had been injured during the late 1970s and has received permanent disability benefits from Social Security since then. Those benefits were expected to be nearly $1,200 per month by 1994.

¶4 When divorced, LaRue was 50 years old and had been working for the United States Geological Survey for 30 years, earning near $38,000 per year. While employed, LaRue had obtained a four-year college education and had taken care of most of the homemaking responsibilities throughout their marriage.

¶5 In the 1993 divorce, the trial court made no specific findings on the value of their marital property. Instead, the court allowed Ralph to divide the couple's personal belongings into two groups and allowed LaRue to select the group she wanted. The court awarded each spouse their individually held bank accounts, bonds, certificates of deposit, life insurance, and retirement accounts. The court rejected Ralph's request to get half of LaRue's retirement account

because I do not think an equal division of property is equitable in this case, even though the marriage is of longstanding. The usual assumption is that the "homemaker" provides valuable services to the "breadwinner" and, in doing so, contributes to the increase in assets, along with any income the homemaker has contributed. [Ralph] has contributed his Social Security to the family finances, but has not functioned as a homemaker. [LaRue] has not only been employed full-time outside the home, but has pursued and obtained a college education and has done almost all of the homemaking duties.

The divorce court also ordered LaRue to pay Ralph $300 monthly for "permanent alimony":

My conclusion is that an award of permanent alimony to [Ralph] of $300 a month will allow him to maintain his standard of living and even increase it, should he find a way to supplement his income even on a modest scale, and at the same time allow [LaRue] to maintain her standard of living although reducing the amount she might otherwise save for her retirement. The alimony will also serve the same function as would an equitable share for [Ralph] of [LaRue's] retirement income. Alimony will terminate upon [Ralph's] remarriage or should he cohabit in an informal marital relationship.

Neither spouse appealed the December 1993 divorce decree.

¶6 In September 1996, after retirement of the trial judge who decreed the divorce LaRue moved to terminate spousal support, alleging Ralph "is now co-habiting with Sharon Mittleider." After trial, the new trial court found Ralph was "cohabiting in an informal marital relationship" with Mittleider and terminated spousal support. The trial court reasoned:

[Ralph] lives in a mobile home in Bismarck.... Sharon Mittleider ... has had a relationship with [him] for many years. She has a home in Steele ... (approximately fifty miles from Bismarck). Mittleider stays overnight at [Ralph's] home three-fourths of the time. Mittleider has spent significant amounts of time at [Ralph's] home for at least the last fifteen months. She has had a key to the mobile home for two years. She comes and goes when she pleases with no control by [Ralph]. She is in the home at times [Ralph] is not present. Mittleider does not pay any bills for the mobile home, but does provide groceries on occasion. She keeps approximately 10 percent of her clothes at [Ralph's] home. Mittleider has a sexual relationship with [Ralph]. [He] and Mittleider exchange gifts on different occasions. [Ralph] has stayed overnight at Mittleider's house in Steele on occasion. Mittleider gets her mail in Steele, and has a telephone assigned to her in Steele. [Ralph] and Mittleider have traveled together out of state several times. On one trip Mittleider paid the bulk of the expenses, on other trips they shared the expenses. Mittleider gambles frequently. She uses her own money, and says she does not share her winnings with [Ralph]. [Ralph] expressed his desire to move to Montana. He said if he does so, Mittleider would be "going back to Steele."

* * * * *

The evidence establishes an informal marital relationship. The only things lacking are a change in name, a marriage license, and a wedding. "If it looks like a duck ..." There is no direct evidence of a financial contribution by Mittleider to [Ralph]. The Court finds it impossible to believe a relationship as described by [Ralph] and Mittleider in their own words could not include com[m]ingling of funds to a much greater degree than admitted. If, in fact the finances of the two are indeed kept separate, it is only to prolong spousal support.

[Footnote omitted]. Ralph appealed the amended decree ending LaRue's obligation to pay him "permanent alimony."

¶7 Unfortunately, the term "permanent alimony" was loosely used by the trial judge in the original decree to describe LaRue's $300 monthly payment. Generally, we discourage use of the term "alimony" because, in divorce documentation, it connotes different concepts that serve different functions, spousal support and property division. See Rustand v. Rustand, 379 N.W.2d 806, 807 (N.D.1986). The distinctions between these concepts are important because, while courts have continuing power to modify spousal support, courts have no continuing power to modify a final property distribution. See Rueckert v. Rueckert, 499 N.W.2d 863, 867 (N.D.1993). Here, Ralph did not appeal this divorce decree nor move to clarify this aspect of the decree, see Neubauer v. Neubauer, 552 N.W.2d 793 (N.D.1996), and Neubauer v. Neubauer, 524 N.W.2d 593 (N.D.1994), but now insists the trial court erred in terminating the $300 monthly payment because it combined spousal support and property division. See Ramsdell v. Ramsdell, 454 N.W.2d 522, 523 (N.D.1990) (if a regular payment is intended to be permanent as a part of property division, trial court cannot terminate it upon remarriage). Even if we were to review the original divorce decree de novo under these circumstances, see Botner v. Botner, 545 N.W.2d 188, 190 n. 2 (N.D.1996), we would conclude the trial court correctly interpreted the $300 monthly payment as exclusively spousal support.

¶8 The attributes of spousal support, rather than property division, are indicated if the divorce payments are directed to be monthly, unsecured, and terminable upon designated events, like death or remarriage of the obligee. See Redlin v. Redlin, 436 N.W.2d 5, 8 (N.D.1989). On the other hand, a large, unexplained disparity in the property divided (apart from the periodic payments) signifies the payments may have been intended for property division. Redlin. Applied to this case, those factors evidence these $300 monthly payments were spousal support, not property division.

¶9 These payments to Ralph were monthly, unsecured, and terminable if he should "die, remarry or cohabit in an informal marital relationship...." Still, while the divorce court did not value the marital property before division, Ralph urges us to conclude there is a substantial disparity in the property division that shows the payments were intended to be property division.

¶10 Even if the property division was disparate, however, the divorce court explained that disparity by saying an equal property division was not equitable because LaRue was not only employed full-time outside the home during the marriage, but she also obtained a college education while continuing to perform "almost all of the homemaking duties." The divorce court's added observation that "[t]he alimony will also serve the same function as would an equitable share for [Ralph] of [LaRue's] retirement income" does not make any part of the $300 payment into a property distribution when all other factors demonstrate the payment was intended as spousal support.

¶11 Ralph asserts the trial court erred in ending his spousal support because the trial court's finding that he and Mittleider were cohabiting in an informal marital relationship is not supported by the evidence ¹ and, in any event, "cohabiting in an informal marital relationship" is not a "recognized legal status" in North Dakota.

¶12 We know of no law dictating that a condition to end spousal support must be a "recognized legal status." While unmarried cohabitants who separate cannot rely on the law requiring equitable division of marital property, see Kohler v. Flynn, 493 N.W.2d 647, 649 (N.D.1992), openly cohabiting without being married is nevertheless regulated by North Dakota law. See NDCC 12.1-20-10 (cohabiting "openly and notoriously with a person of the opposite sex as a married couple without being married to the other person" made a class B misdemeanor). Despite a near universal lack of prosecutorial enforcement of that kind of law, and even considering the shifting social mores of our era, ² we are neither appalled nor surprised that cohabiting like husband and wife was made the functional equivalent of remarriage as a condition to end spousal support in ...