Markegard v. Willoughby

Citation930 N.W.2d 108
Decision Date27 June 2019
Docket NumberNo. 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
CourtNorth Dakota Supreme Court

930 N.W.2d 108

Kimberlee A. MARKEGARD, n/k/a Kimberlee A. Erickson, Plaintiff, Appellant, and Cross-Appellee
v.
Brian G. WILLOUGHBY, Defendant, Appellee, and Cross-Appellant

No. 20180445

Supreme Court of North Dakota.

Filed June 27, 2019
Rehearing Denied July 30, 2019


Kristan A. Redmann, Mandan, N.D., for plaintiff, appellant, and cross-appellee.

Chad C. Nodland, Bismarck, N.D., for defendant, appellee, and cross-appellant.

Tufte, Justice.

¶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.

[930 N.W.2d 110

I

¶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:
Beginning on the first of the month upon entry of Judgment in this matter and for twelve (12) consecutive months in total, Brian shall pay to Kimberlee $ 4,000 each month for spousal support.

Upon the conclusion of the twelve (12) months, Brian shall thereafter pay to Kimberlee $ 3,500 each month, for spousal support, for twenty-four (24) consecutive months.

Brian shall pay this spousal support obligation to Kimberlee for the duration of the thirty-six (36) months upon entry of Judgment , unless she remarries or dies.

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.

II

[¶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:

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

[930 N.W.2d 111

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.

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.

A

¶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
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2 cases
  • O'Keeffe v. O'Keeffe
    • United States
    • North Dakota Supreme Court
    • September 16, 2020
    ...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 co......
  • Willprecht v. Willprecht
    • United States
    • North Dakota Supreme Court
    • April 6, 2020
    ...[¶13] The primary purpose in interpreting a statute is to determine the legislature’s intent. Markegard v. Willoughby , 2019 ND 170, ¶ 9, 930 N.W.2d 108. We interpret statutes as a whole and harmonize them to give meaning to related provisions. Baker v. Autos, Inc. , 2019 ND 82, ¶ 10, 924 N......

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