Cermak v. Cermak

• Decision Date: 30 September 1997
• Docket Number: No. 970046,970046
• Citation: 569 N.W.2d 280,1997 ND 187
• Parties: Duane E. CERMAK, Plaintiff, Appellant, and Cross-Appellee, v. Loretta R. CERMAK, Defendant, Appellee, and Cross-Appellant. Civil
• Court: North Dakota Supreme Court

Page 280

569 N.W.2d 280

1997 ND 187

Duane E. CERMAK, Plaintiff, Appellant, and Cross-Appellee, v. Loretta R. CERMAK, Defendant, Appellee, and Cross-Appellant.

Civil No. 970046.

Supreme Court of North Dakota.

Sept. 30, 1997.

William D. Schmidt, Schmitz, Moench & Schmidt, Bismarck, for plaintiff, appellant, and cross-appellee.

Richard B. Baer, P.C., Bismarck, for defendant, appellee, and cross-appellant.

VANDE WALLE, Chief Justice.

¶1 Plaintiff Duane E. Cermak appealed from the Burleigh County District Court's Order denying his motion to reduce or terminate his spousal support obligation. The district court concluded that a "live-in" relationship between Defendant Loretta R. Cermak and another man is not a remarriage; for the reasons contained herein below, we affirm.

I

¶2 The Cermaks were married in June of 1964. Duane was granted a divorce from Loretta on January 11, 1995. In an Amended Judgment of January 23, 1995, the district court ordered Duane to pay Loretta permanent spousal support in the amount of $600 per month. The Judgment provided the permanent support was to cease upon the death or remarriage of Loretta. Duane had asked the district court to include a clause that would terminate spousal support upon the cohabitation of Loretta, but the court did not do so. The district court's Judgment was affirmed by this Court. Cermak v. Cermak, 544 N.W.2d 176 (N.D.1995) (affirming by summary opinion).

¶3 In mid-1995, Loretta sold the real property she received under the terms of the Amended Judgment and took up residence with a man whom she had been seeing during the pendency of the divorce proceeding. Although Loretta moved in with the paramour while the prior appeal was pending, the effect of the "live-in" relationship was never reviewed by this Court. Cermak, 544 N.W.2d 176. Since taking up residence with the man, Loretta has lived openly with him, but they have not married.

¶4 In August of 1996, Duane filed a motion with the district court requesting his support obligation be reduced or terminated because Loretta was living with another man. Loretta filed a cross-motion asking Duane's motion be denied and requesting attorney's fees and costs. The district court issued an Order denying both motions. Duane and Loretta each appealed from the district court's Order.

II

¶5 Duane challenges the district court's ruling that (a) termination of his spousal support obligation is not warranted because cohabitation is not the same as remarriage, and (b) reduction is inappropriate because the same reasons for granting support still exist today. Loretta R. Cermak claims the district court erred in refusing to award her attorney's fees. We consider each of these issues in turn.

A. Termination of Spousal Support

¶6 Duane Cermak claims his spousal support obligation should be terminated because his former wife is regularly and openly cohabiting with another man. If Duane were merely arguing a change of circumstances, we would not reverse the district court's finding unless it was clearly erroneous. Wheeler v. Wheeler, 548 N.W.2d 27, 30 (N.D.1996) (citing Hager v. Hager, 539 N.W.2d 304 (N.D.1995) for the proposition that a material change of circumstances determination is a finding of fact subject to the clearly erroneous standard), N.D. R. Civ. P. 52(a). However, in the present case we are presented with the issue of whether, under North Dakota law, cohabitation by a recipient spouse is the equivalent of remarriage, sufficient to terminate permanent spousal support under the terms of the Amended Judgment. ¹ The district court concluded Loretta's "live-in" relationship is not equivalent to remarriage under North Dakota law. Implicit in this conclusion is an interpretation of North Dakota law. Because we are called to review the district court's interpretation of law, the question is fully reviewable. Gabriel v. Gabriel, 519 N.W.2d 293, 294 (N.D.1994) (citing In Interest of Kupperion, 331 N.W.2d 22, 27 (N.D.1983) (conclusions of law are fully reviewable on appeal)).

¶7 Loretta Cermak acknowledges she is in a "live-in" relationship with another man. But merely cohabiting is insufficient to create a marital relationship in our State. North Dakota abrogated common-law marriages shortly after statehood. N.D.C.C. § 14-03-01 (Supp.1997) (providing only marriages entered into pursuant to state law are valid). See Schumacher v. Great Northern Ry. Co. et al., 23 N.D. 231, 136 N.W. 85, 86 (1912) (noting the 1890 legislature clearly intended to abrogate nonceremonial marriages). Unless the statutory requirements are met, the fact of cohabitation alone is insufficient to create a legally recognized marriage. However, Duane argues Loretta's relationship is so much like a remarriage it is sufficient to invoke the provision in the Amended Judgment terminating his spousal support obligation.

¶8 Permanent spousal support may be awarded when a spouse is "incapable of adequate rehabilitation or self-support." Wiege v. Wiege, 518 N.W.2d 708, 711 (N.D.1994) (emphasis omitted). Although permanent spousal support continues the paying spouse's duty of support, the recipient spouse owes no reciprocal legal obligation of fidelity, respect or support. See N.D.C.C. § 14-07-01 (1991) (providing husband and wife owe a mutual obligation of respect, fidelity, and support), and N.D.C.C. § 14-07-03 (1991) (stating that husband and wife have a mutual duty to support each other).

¶9 Here, although the Amended Judgment provided for termination upon the death or remarriage of Loretta, it made no mention of cohabiting. ² While other state legislatures have specifically provided for cohabitation as a ground for termination of spousal support, ³ North Dakota has not enacted a similar law. Absent such a provision we will not attach marital obligations to a nonmarital relationship. Abbott v. Abbott, 282 N.W.2d 561, 566 (Minn.1979). See, e.g., Kohler v. Flynn, 493 N.W.2d 647, 649 (N.D.1992) (holding the law on equitable distribution of marital property does not apply to the breakup of an engagement or living arrangement). In the present case, Duane asks us to interpret remarriage in a manner that recognizes a new relationship, a de facto marriage, having all the hallmarks of a common-law marriage. To do so would in effect recognize a common-law marriage when it has been specifically abrogated by our state legislature. Schumacher, 136 N.W. at 86. See also N.D.C.C. § 1-01-06 (1987) (providing there is no common law where the law is declared by the code). We will not attach an interpretation to the Cermak's divorce decree that contravenes an unambiguous state law.

¶10 We agree with the district court that this relationship has none of the permanent benefits of a marriage. The Supreme Court of Maine stated the rationale for a "termination-upon-remarriage" clause in Mitchell v. Mitchell, 418 A.2d 1140, 1143 (Me.1980). "[I]t is against public policy in the ordinary case for one man to be supporting the wife of another who has himself assumed the legal obligation for her support." Id. (Emphasis retained). (Citation and quotation omitted). However, as the Maine Supreme Court recognized, "[t]his reasoning does not apply to the case of an unmarried cohabitant receiving alimony. Though unmarried cohabitants may voluntarily contribute to each other's support, they have no legal obligation to pay." Id. (Emphasis added). In the case at bar, Duane asks us to interpret the divorce decree in a way that would leave Loretta with an uncertain means of support. The length of Loretta's relationship is unknown; it may last until her death, or may sour tomorrow. On this record, any support Loretta may receive from her cohabitant is provided from his benevolence and comes with no reciprocal or continuing obligation.

¶11 Duane claims our decision in Kohler v. Flynn, recognizes a remedy in the event a live-in arrangement sours. In Kohler we discussed the well publicized decision of Marvin v. Marvin. Kohler v. Flynn, 493 N.W.2d at 648-49 (citing Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976)). However, we did not expressly recognize the right to bring a "palimony" action in North Dakota. Id. See also Baker v. Baker, 1997 ND 135, p 12, 566 N.W.2d 806 (noting unmarried cohabitants cannot rely on equitable division of property). On the contrary, we observed a "palimony" rationale has no bearing on the breakup of an engagement or living arrangement in North Dakota. Kohler, 493 N.W.2d at 649 (holding equitable distribution is inapplicable and the law of partition of property controls the division of property among cohabitants).

¶12 In Kohler we concluded "outside of marriage, judicial division of property ordinarily depends on common ownership." Id. at 649. In the instant case, Duane claims at a minimum, the law of partition of property would come into play in situations where individuals previously lived together. This argument ignores our holding in Kohler that mere cohabitation is not sufficient to create common ownership. Kohler, 493 N.W.2d at 649. "If live-in companions intend to share property, they should express that intention in writing." Id. Duane has failed to point to any written evidence giving Loretta any claim to the property of her unmarried cohabitant. To conclude Loretta's relationship is equivalent to remarriage would leave her unsupported should the nonobligatory relationship end.

¶13 Duane argues other states have held cohabiting so similar to remarriage that it terminates spousal support. Specifically, Duane refers us to the case of Hammonds v. Hammonds, 641 So.2d 1211 (Miss.1994). In Hammonds, however, the Mississippi Supreme Court abandoned the automatic termination Duane suggests here. Id. at 1217. Prior to the Hammonds case, the courts in Mississippi terminated spousal support solely on the basis of cohabitation. See, e.g., McRae v. McRae, 381 So.2d 1052, 1055-56 (Miss.1980) (holding former spouse's abode with a man who was...