Markegard v. Willoughby
| Citation | 930 N.W.2d 108 |
| Decision Date | 27 June 2019 |
| Docket Number | No. 20180445,20180445 |
| Parties | Kimberlee A. MARKEGARD, n/k/a Kimberlee A. Erickson, Plaintiff, Appellant, and Cross-Appellee v. Brian G. WILLOUGHBY, Defendant, Appellee, and Cross-Appellant |
| Court | North Dakota Supreme Court |
Kristan A. Redmann, Mandan, N.D., for plaintiff, appellant, and cross-appellee.
Chad C. Nodland, Bismarck, N.D., for defendant, appellee, and cross-appellant.
[¶1] Kimberlee Erickson, formerly known as Kimberlee Markegard, appeals and Brian Willoughby cross-appeals from an order and amended judgment terminating Willoughby’s spousal support obligation. Erickson argues the district court erred in terminating her spousal support, and Willoughby argues the court erred by failing to make its order terminating support retroactive to the date of the service of his motion. We affirm.
[¶2] Erickson and Willoughby were married in 2004. They were divorced in May 2017. They filed a marital termination agreement, agreeing to spousal support and distribution of the marital estate. The parties agreed Willoughby would pay spousal support for thirty-six months, stating:
The district court entered an order and judgment incorporating the parties' agreement, including the spousal support.
[¶3] In October 2018, Willoughby moved to terminate his spousal support obligation under N.D.C.C. § 14-05-24.1(3), arguing Erickson had been cohabiting in a relationship analogous to marriage since July or August 2017. Willoughby filed an affidavit in support of his motion. Erickson responded to the motion, arguing her spousal support should not be terminated because Willoughby was required to prove a material change in circumstances, N.D.C.C. § 14-05-24.1(3) does not apply to terminate rehabilitative spousal support, under the terms of the judgment her spousal support is rehabilitative, and the parties agreed the support would terminate only upon remarriage or death. Erickson did not file an affidavit or other evidence. Neither party requested a hearing.
[¶4] The district court granted Willoughby’s motion and terminated his spousal support obligation. The court found N.D.C.C. § 14-05-24.1(3) applied and Willoughby was not required to prove a material change in circumstances. The court also found the parties did not agree in writing that cohabitation would not terminate the spousal support, Erickson failed to present any evidence the spousal support was rehabilitative, and Willoughby established Erickson had been continuously cohabiting in a relationship analogous to marriage since August 2017. The court ordered the termination of Willoughby’s spousal support obligation was effective immediately.
[¶5] Erickson argues the district court erred in terminating her spousal support under N.D.C.C. § 14-05-24.1(3).
[¶6] 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. Statutory interpretation is a question of law, which is fully reviewable on appeal. Bindas v. Bindas , 2019 ND 56, ¶ 10, 923 N.W.2d 803.
[¶7] Section 14-05-24.1, N.D.C.C., governs spousal support and authorizes the district court to modify support orders, stating:
Section 14-05-24.1, N.D.C.C., was amended in 2015 to add subsections 2, 3, and 4. 2015 N.D. Sess. Laws ch. 124, § 1. The current version of the statute became effective on August 1, 2015. Id.
[¶8] Erickson argues the parties explicitly agreed on the conditions that would terminate the spousal support, they did not include cohabitation as a condition, and therefore her support could not be terminated on the basis of cohabitation.
[¶9] Our standard for interpreting statutes is well established:
The primary purpose of statutory interpretation is to determine the intention of the legislation. In re Estate of Elken , 2007 ND 107, ¶ 7, 735 N.W.2d 842. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. If the language of a statute is clear and unambiguous, "the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit." N.D.C.C. § 1-02-05. If the language of the statute is ambiguous, however, a court may resort to extrinsic aids to interpret the statute. N.D.C.C. § 1-02-39.
Bindas , 2019 ND 56, ¶ 10, 923 N.W.2d 803 (quoting Ferguson v. Wallace-Ferguson , 2018 ND 122, ¶ 7, 911 N.W.2d 324 ).
[¶10] In Bindas , 2019 ND 56, ¶ 11, 923 N.W.2d 803, we interpreted N.D.C.C. § 14-05-24.1(3) and held:
Section 14-05-24.1(3), N.D.C.C., is not ambiguous. The plain language of the statute authorizes the court to terminate spousal support based solely on the receiving spouse’s cohabitation unless otherwise agreed to by the parties in writing. "Otherwise" is defined as "[t]o the contrary; differently." Black’s Law Dictionary 1276 (10th ed. 2014). If the parties have a contrary agreement in writing, the statute does not apply to terminate spousal support. The language "unless otherwise agreed to by the parties in writing" limits the application of the statute.
[¶11] In Bindas , 2019 ND 56, ¶ 13, 923 N.W.2d 803, the parties' marital termination agreement did not explicitly address whether the spousal support obligation would terminate upon cohabitation, but they entered into the agreement in 2009 before the 2015 amendments to N.D.C.C. § 14-05-24.1 became effective. We explained this Court previously held cohabitation could not be the sole basis for termination of spousal support, the law in existence when the contract is entered into forms a part of that contract, the parties' agreement did not include cohabitation as a condition that would terminate the support, and the agreement did not explicitly contradict the background law. Bindas, at ¶¶ 14-15. We held the effect of the agreement was that cohabitation by itself was not sufficient to terminate spousal support and the agreement’s incorporation of the pre-2015 background law satisfied the "[u]nless otherwise agreed to by the parties in writing" exception to N.D.C.C. § 14-05-24.1(3). Bindas , at ¶¶ 15-16.
[¶12] Our interpretation of the language of the statute in Bindas guides this case. We held N.D.C.C. § 14-05-24.1(3) does not apply if the parties have a contrary agreement in writing. Bindas , 2019 ND 56, ¶ 11, 923 N.W.2d 803. Justice Crothers' concurrence in Bindas , at ¶ 27, anticipated this case:
N.D.C.C. § 14-05-24.1(3) would apply according to its plain terms to a marital termination agreement identical to that used by the Bindas if the agreement was executed on or after August 1, 2015.... Therefore, if a spousal support provision like that used in the Bindas' divorce was executed after N.D.C.C. § 14-05-24.1(3) became effective, the absence of language stating spousal support continues even if the receiving party cohabitates would require, rather than preclude, termination of spousal support.
We agree. We conclude a written spousal support agreement entered into after the 2015 statutory amendment must expressly provide for continued spousal support to a cohabiting spouse or N.D.C.C. § 14-05-24.1(3) will apply.
[¶13] In this case, the marital termination agreement was executed in April 2017 and is silent about whether the spousal support will terminate upon cohabitation. The law at the time Erickson and Willoughby entered into the agreement required termination of spousal support upon the court’s finding that the spouse receiving support had been habitually cohabiting for more than one year. Erickson and Willoughby did not agree in writing that the spousal support would not terminate upon cohabitation. The agreement does not satisfy the "[u]nless otherwise agreed to by the parties in writing" exception to N.D.C.C. § 14-05-24.1(3), and therefore the statute requires termination upon a finding of cohabitation.
[¶14] Erickson also argues termination of her spousal support was improper because her spousal support is rehabilitative and N.D.C.C. § 14-05-24.1(3) does not apply to rehabilitative support under N.D.C.C. § 14-05-24.1(4).
[¶15] The district court considered Erickson’s argument that her spousal support was rehabilitative. The court found,...
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