Pearson v. Pearson

• Decision Date: 22 February 2000
• Docket Number: No. 990018.,990018.
• Citation: 606 N.W.2d 128,2000 ND 20
• Parties: Myrtle G. PEARSON, Plaintiff and Appellee, v. Elof G. PEARSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

606 N.W.2d 128

2000 ND 20

Myrtle G. PEARSON, Plaintiff and Appellee, v. Elof G. PEARSON, Defendant and Appellant.

No. 990018.

Supreme Court of North Dakota.

February 22, 2000.

Rehearing Denied April 5, 2000.

Sherry Mills Moore, Foss and Moore, Bismarck, for plaintiff and appellee.

Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Elof Pearson appeals from an order denying his motion to reduce or terminate spousal support and requiring him to pay $4,000 in attorney fees. Because the trial court did not err in concluding Myrtle has not remarried, did not clearly err in finding no material change in circumstances justifying a change in spousal support, and did not abuse its discretion in awarding the attorney fees, we affirm.

I

[¶ 2] Elof and Myrtle Pearson married on March 9, 1960. In 1993, Myrtle sued for a divorce, seeking spousal support, a fair and equitable division of the parties' property, and attorney fees and costs. In August 1994, Elof and Myrtle informed the trial court they had reached an agreement to settle the divorce action. During the proceeding, the following discussion occurred:

MYRTLE'S ATTORNEY: I would also add for the Court that Mr. Rau and I will word the judgment so that the alimony or spousal support is properly deductible by Mr. Pearson. There is certain language that must be included, such as it extends until her death or until his death, that type of thing so— ELOF'S ATTORNEY: Remarriage. Both of the lawyers are familiar with it. MYRTLE'S ATTORNEY: Right.

Myrtle's attorney prepared the divorce judgment; it recited the pertinent portion of the agreement in the following manner:

During his lifetime, the Defendant shall be allowed to live in the home of the parties.... Defendant shall be allowed to farm the parties' real estate....

During his lifetime, Defendant shall pay to the Plaintiff the sum of $2,250.00 per month, in the nature of permanent alimony and/or spousal support for the rights set out in the foregoing paragraph. Said payments shall begin September 1, 1994 and shall continue on the first of each month thereafter until Plaintiff's death or Defendant's death, whichever occurs first.

The judgment did not provide remarriage as a condition to terminate the monthly payments, and Elof did not move to amend it to include a remarriage provision.

[¶ 3] In late 1994 or early 1995, Myrtle began cohabiting with Dewaine McLeod. In November 1997, Myrtle and McLeod moved from Saskatchewan, Canada, to Alberta, Canada, where they purchased a home. They have a joint bank account for making mortgage payments and another for paying common household expenses. In Canadian tax and health insurance forms, Myrtle designates herself as a common law spouse. Myrtle and McLeod both suggest being able to "just walk away" with "no ties attached" is a benefit of their relationship.

[¶ 4] In July 1998, Elof moved the trial court to reduce or eliminate his spousal support obligation, contending Myrtle and McLeod's relationship constituted a marriage or, at least, a significant change in circumstances justifying the elimination or reduction of support. Elof stipulated his ability to pay support was not at issue.

[¶ 5] The trial court found Myrtle was not married to, or supporting, McLeod and McLeod was not supporting her. The trial court consequently determined there was no change in circumstances justifying a change in spousal support. The trial court awarded Myrtle $4,000 in attorney fees. An Order Denying Motion and Granting Attorney's Fees was filed on December 28, 1998. Elof appealed.

II

[¶ 6] Elof suggests Myrtle and McLeod's relationship is a common law marriage compelling termination of his spousal support obligation pursuant to the parties' original oral agreement or by operation of law. Although Elof suggests the dialogue between the attorneys quoted above constituted an agreement to include remarriage as a condition for terminating spousal support, a fair reading is the agreement was to comply with the requirements for spousal support under the Internal Revenue Code. Section 71, I.R.C. (1986), in effect at the time did not require remarriage as a condition for terminating alimony. We decline to import a term not provided in the judgment. Had Elof believed the judgment did not reflect the agreement, his recourse was to seek to have the judgment amended. Elof's argument regarding marriage must rest on the assumption of a common law marriage¹ and our prior case law regarding marriage as a basis for terminating spousal support.

[¶ 7] Generally, remarriage of a spousal support recipient creates a prima facie case to terminate spousal support unless there are extraordinary circumstances justifying the continuance of alimony. Roen v. Roen, 438 N.W.2d 170, 173 (N.D.1989).

[¶ 8] Section 14-03-08, N.D.C.C., provides "[a]ll marriages contracted outside of this state, which are valid according to the laws of the state or country where contracted, are valid in this state." Although a common law marriage cannot be entered into in North Dakota,² a common law marriage shown to be validly entered into in Canada may be entitled to recognition in North Dakota under N.D.C.C. § 14-03-08.³ The proponent of the common law marriage bears the burden of establishing its validity under the law of the foreign jurisdiction. See In re Peterson's Estate, 22 N.D. 480, 134 N.W. 751, 759 (1912) (concluding the proponent of the common law marriage, who claimed the right of a spouse to inherit from a decedent, failed to establish its existence under the laws of Michigan, the place it was allegedly entered into); see also Brissett v. Sykes, 313 Ark. 515, 855 S.W.2d 330, 332 (1993)

; Milburn v. Milburn, 694 N.E.2d 738, 739-40 (Ind.App.1998).

[¶ 9] From the authorities provided by Elof, it is unclear whether Myrtle and McLeod's relationship would be considered a common law marriage. Under the Alberta law provided, a "spouse" includes "a party to a common law relationship" and "a common law relationship" is one "between 2 people of the opposite sex who although not legally married to each other continuously cohabited in a marriage-like relationship for at least 3 years." Domestic Relations Amendment Act, R.S.A., 1999. Elof has not provided authority on what constitutes "a marriage-like relationship." It is unclear whether an Alberta court would find a "marriage-like relationship" exists where the parties are financially independent; assert they enjoy the ability to break off their relationship with no strings attached; do not share a common last name or otherwise hold themselves out as married; and do not share assets, except for accounts for mortgage and household expenses.

[¶ 10] We are not convinced Elof has conclusively established a remarriage that must be recognized under N.D.C.C. § 14-03-08, to make a prima facie case to terminate spousal support. However, it is unnecessary to determine whether a common law marriage exists, because even if we assume its existence, the facts of this case would demonstrate extraordinary circumstances requiring the continuance of spousal support because of the nature of the parties' agreement incorporated into the judgment described under our analysis of changed circumstances. The trial court did not err in determining Myrtle and McLeod's relationship does not compel termination of Elof's support obligation.

III

[¶ 11] Emphasizing Myrtle and McLeod's cohabitation, sharing of household duties, commingling of assets, and mutual support, Elof argues there was a material change in circumstances and the trial court clearly erred by failing to modify his support obligation.

[¶ 12] Spousal support payments may be modified only upon a showing of a material change of circumstances which justifies a modification. Schmalle v. Schmalle, 1998 ND 201, ¶ 12, 586 N.W.2d 677. A "material change" is something which substantially affects a party's financial abilities or needs, and the reason for changes in income must be examined as well as the extent the changes were originally contemplated by the parties. Wheeler v. Wheeler, 419 N.W.2d 923, 925 (N.D. 1988). The trial court's determination of whether there has been a material change of circumstances and whether the change justifies a modification of spousal support are findings of fact that will not be overturned unless they are clearly erroneous. Huffman v. Huffman, 477 N.W.2d 594, 596 (N.D.1991).

[¶ 13] Here, the trial court determined there was no significant change in Myrtle's financial condition and Myrtle and McLeod's cohabitation was not a material change in circumstances. Evidence before the trial court included Myrtle's income tax returns which indicated her income has not significantly changed since the divorce. Myrtle and McLeod testified they do not financially support each other and only share common expenses such as mortgage payments and household goods. No evidence refuted their testimony. The trial court accordingly acknowledged Myrtle and McLeod have some common accounts and own some property together but found Myrtle and McLeod "can clearly separate out their funds," "[e]ach has adequate income to care for themselves as well as their extended family members," and there is "no evidence that one is dependent on the other." The trial court also noted "[t]heir love and affection and support for one another and their habits and their things they do together are as I see no different than any people who cohabitate [sic]."

[¶ 14] In Cermak v. Cermak, 1997 ND 187, 569 N.W.2d 280, we explained mere cohabitation is not a material change in circumstances justifying a change in spousal support. Emphasizing cohabitants lack the permanent benefits of a marriage, we reasoned although cohabitants may voluntarily contribute to each other's support, they have no legal obligation to do so. Id. at ¶ 10. Any support the obligee may receive from the cohabitant is provided from the...