O'Keeffe v. O'Keeffe

Decision Date16 September 2020
Docket NumberNo. 20190379,20190379
Parties Kari Cathryn O'KEEFFE, Plaintiff, Appellee, and Cross-Appellant v. Timothy Michael O'KEEFFE, Defendant, Appellant, and Cross-Appellee
CourtNorth Dakota Supreme Court

DeAnn M. Pladson (argued), Fargo, North Dakota, and Patti J. Jensen (on brief), East Grand Forks, Minnesota, for plaintiff, appellee, and cross-appellant.

Tracy J. Lyson, Fargo, North Dakota, for defendant, appellant, and cross-appellee.

Tufte, Justice.

[¶1] Tim O'Keeffe appeals from district court orders denying his motion to terminate spousal support and awarding attorney's fees to Kari O'Keeffe. Because the district court erred in concluding spousal support was rehabilitative rather than permanent, we reverse the order denying Tim O'Keeffe’s motion to terminate spousal support. We affirm the district court's award of attorney's fees.

I

[¶2] Tim and Kari O'Keeffe were married in 1997 and divorced in 2015. The parties resolved all issues through mediation and negotiation, and the marriage was terminated in November 2015. Relevant to this appeal, the parties agreed Tim O'Keeffe would pay Kari O'Keeffe spousal support of $5,000 per month for 120 months.

[¶3] The spousal support agreement in the divorce judgment stated:

Spousal Support. Tim shall pay as and for spousal support to Kari the amount of $5,000 per month beginning November 1, 2015, and continuing on the first day of each month thereafter for a period of 120 months. The amount and duration of spousal support shall be non-modifiable by either party. The spousal support shall terminate upon the death or remarriage of Kari. It is intended that the support payable to Kari in accordance herewith shall be includable in Kari's gross income pursuant to Section 71 of the Internal Revenue Code and shall be deducted by Tim pursuant to Section 215 of the Internal Revenue Code.

[¶4] In February 2019, Tim O'Keeffe moved the district court to terminate his spousal support obligation. He attached an affidavit with his motion which alleged Kari O'Keeffe had been habitually cohabiting with her fiance in a relationship analogous to marriage since at least January 2016. Tim O'Keeffe argued Kari O'Keeffe’s cohabitation should relieve him of his spousal support obligation under N.D.C.C. § 14-05-24.1(3). Kari O'Keeffe did not dispute the facts in Tim O'Keeffe’s affidavit or present any contradictory evidence.

[¶5] The district court held two hearings on Tim O'Keeffe’s motion. At an April 2019 hearing, the court heard the parties’ arguments regarding spousal support. The court took Tim O'Keeffe’s motion under advisement. The court requested a second hearing in August 2019 to address how an order affecting spousal support would affect distribution of the marital estate. Before the August 2019 hearing, Tim O'Keeffe filed a motion in limine and attached mediation documents to his affidavit as an exhibit. He also subpoenaed the mediator and filed a motion to compel the mediator's attendance at the August 2019 hearing. Kari O'Keeffe moved for attorney's fees, arguing Tim O'Keeffe had improperly filed the mediation documents.

[¶6] On December 1, 2019, the district court issued two orders relevant to this appeal. In the first order, the court denied Tim's motion to terminate spousal support. The court concluded that the spousal support provision in the divorce judgment did not specifically provide for spousal support to continue upon cohabitation. However, the court also concluded that because the spousal support provision was for rehabilitative support, Tim O'Keeffe was not entitled to termination of spousal support under N.D.C.C. § 14-05-24.1(4). The court denied Tim O'Keeffe’s motion to terminate spousal support. In the second order, the district court granted Kari O'Keeffe’s motion to strike improperly filed documents and awarded $1,590.00 in attorney's fees based on Tim O'Keeffe’s improper submission of a mediation summary at the August 2019 hearing. Tim O'Keeffe appeals from both orders, and Kari O'Keeffe cross-appeals from the first order.

II

[¶7] Tim O'Keeffe argues the district court erred in denying his motion to terminate spousal support because it incorrectly concluded the spousal support provision was rehabilitative. Kari O'Keeffe argues the district court correctly denied the motion. However, on cross-appeal, she argues the district court erred in finding the parties did not agree in writing that spousal support would continue after cohabitation.

The district court's findings of fact in its decision modifying spousal support will be reversed on appeal only if they are clearly erroneous. See Varty v. Varty , 2019 ND 49, ¶ 6, 923 N.W.2d 131. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, on the basis of the entire record, we are left with a definite and firm conviction a mistake has been made. Id. at ¶ 7.

Markegard v. Willoughby , 2019 ND 170, ¶ 6, 930 N.W.2d 108.

[¶8] Section 14-05-24.1, N.D.C.C., governs spousal support and states:

1. Taking into consideration the circumstances of the parties, the court may require one party to pay spousal support to the other party for a limited period of time in accordance with this section. The court may modify its spousal support orders.
2. Unless otherwise agreed to by the parties in writing, spousal support is terminated upon the remarriage of the spouse receiving support. Immediately upon remarriage, the spouse receiving support shall provide notice of the remarriage to the payor spouse at the last known address of the payor spouse.
3. Unless otherwise agreed to by the parties in writing, upon an order of the court based upon a preponderance of the evidence that the spouse receiving support has been habitually cohabiting with another individual in a relationship analogous to a marriage for one year or more, the court shall terminate spousal support.
4. Subsections 2 and 3 do not apply to rehabilitative spousal support.

Subsections 2, 3, and 4 of N.D.C.C. § 14-05-24.1 were added in 2015 and took effect August 1, 2015. 2015 N.D. Sess. Laws ch. 124, § 1. The district court entered Tim and Kari O'Keeffe’s amended divorce judgment in December 2015. Therefore, the 2015 amendments to section 14-05-24.1 govern here.

A

[¶9] Tim O'Keeffe argues the district court erred in determining the award of spousal support in the amended judgment was for rehabilitative support. Under N.D.C.C. § 14-05-24.1(4), spousal support may not be terminated for the recipient party's habitual cohabitation with another if the spousal support award was rehabilitative. The divorce judgment here is silent as to whether the spousal support is rehabilitative or permanent. The district court found that the spousal support provision is rehabilitative. We disagree.

[¶10] Prior to the 2015 amendment to N.D.C.C. § 14-05-24.1, the terms rehabilitative support and permanent support did not appear in the statutes but only in this Court's opinions. The 2015 amendment introduced an important difference between rehabilitative support and all other support, including support our cases have referred to as "permanent" and "temporary," which we will refer to here as non-rehabilitative support. After the amendment, rehabilitative support was not subject to termination upon cohabitation, but non-rehabilitative support, including what our opinions have often but not uniformly referred to as "permanent" support, must be terminated upon a showing of cohabitation for one year. N.D.C.C. § 14-05-24.1(3) and (4). We give the statute's use of the term "rehabilitative spousal support" its plain meaning, informed by prior interpretation of that term in our opinions, which we presume the legislature has taken into account in drafting the statute. Heck v. Reed , 529 N.W.2d 155, 161 (N.D. 1995).

[¶11] We have said permanent spousal support and rehabilitative spousal support are two distinct remedies. Wold v. Wold , 2008 ND 14, ¶ 14, 744 N.W.2d 541. "Rehabilitative spousal support is appropriate when it is possible to restore a spouse to independent economic status or to equalize the burden of the divorce by increasing that spouse's earning capacity." Id. Permanent spousal support is appropriate when a spouse cannot be rehabilitated. Id. "Even when a spouse is capable of rehabilitation, permanent spousal support may be an appropriate remedy" to equalize the burdens of the divorce. Id.

[¶12] We have acknowledged that a "substantial disparity between the [spouses’] incomes that cannot be readily adjusted by property division or rehabilitative support" may support an award of "indefinite permanent support to maintain the disadvantaged spouse." Krueger v. Krueger , 2008 ND 90, ¶ 9, 748 N.W.2d 671 ; see also Ingebretson v. Ingebretson , 2005 ND 41, ¶ 9, 693 N.W.2d 1. Such "permanent" spousal support "may be appropriate when there is a substantial income disparity and a substantial disparity in earning power that cannot be adjusted by property division or rehabilitative support." Innis-Smith v. Smith , 2018 ND 34, ¶ 22, 905 N.W.2d 914 (citing Stephenson v. Stephenson , 2011 ND 57, ¶ 27, 795 N.W.2d 357 ); Friesner v. Friesner , 2019 ND 30, ¶ 14, 921 N.W.2d 898. In appropriate circumstances a district court may award both rehabilitative support and permanent, non-rehabilitative support. Greenwood v. Greenwood , 1999 ND 126, ¶ 9, 596 N.W.2d 317 (stating where a spouse "cannot be adequately restored to independent economic status," "a court should consider whether, in addition to rehabilitative support, permanent spousal support is also necessary.").

[¶13] Rehabilitative support includes support that is awarded to provide the receiving spouse "an opportunity to acquire an education, training, work skills, or experience to become self-supporting." Knudson v. Knudson , 2018 ND 199, ¶ 12, 916 N.W.2d 793. Our cases establish a preference that the district court award rehabilitative support when...

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7 cases
  • Kaspari v. Kaspari
    • United States
    • North Dakota Supreme Court
    • November 10, 2022
    ...trial, only the amount of spousal support was left for the district court to consider. After citing this Court's decision in O'Keeffe v. O'Keeffe , 2020 ND 201, ¶ 12, 948 N.W.2d 848, the district court noted that "a substantial disparity between the parties’ incomes that cannot be adjusted ......
  • Kaspari v. Kaspari
    • United States
    • North Dakota Supreme Court
    • November 10, 2022
    ...support was left for the district court to consider. After citing this Court's decision in O'Keeffe v. O'Keeffe, 2020 ND 201, ¶ 12, 948 N.W.2d 848, the district court noted that "a substantial between the parties' incomes that cannot be adjusted by property division, supports an award of sp......
  • Kaspari v. Kaspari
    • United States
    • North Dakota Supreme Court
    • November 9, 2023
    ...by failing to raise it in the party's appellate brief." Somerset Ct., LLC v. Burgum, 2021 ND 58, ¶ 13, 956 N.W.2d 392 (quoting O'Keeffe v. O'Keeffe, 2020 ND 201, 14, 948 N.W.2d 848). As Thomas Kaspari did not brief the order denying the motion for relief from judgment, this Court does not c......
  • Kaspari v. Kaspari
    • United States
    • North Dakota Supreme Court
    • March 17, 2022
    ...her pre-divorce standard of living.[¶22] The district court's rationale is consistent with the law we recently set out in O'Keeffe v. O'Keeffe , 2020 ND 201, ¶ 12, 948 N.W.2d 848, where we stated:[A] "substantial disparity between the [spouses’] incomes that cannot be readily adjusted by pr......
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1 books & journal articles
  • Review of the Year 2020 in Family Law: COVID-19, Zoom, and Family Law in a Pandemic
    • United States
    • ABA General Library Family Law Quarterly No. 54-4, January 2021
    • January 1, 2021
    ...at 179–80. 123. Scott , 472 P.3d at 907 (ex-wife sharing residence for 42 days was sufficient to terminate). 124. O’Keeffe v. O’Keeffe, 948 N.W.2d 848, 850–51, 854 (N.D. 2020). 125. Id. at 853. 126. Id. at 854. 127. Gardner v. Zammit, 128 N.Y.S.3d 383, 385 (App. Div. 2020). 128. See Family ......

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