930 N.W.2d 108
N.D.2019Background
- Erickson and Willoughby divorced in May 2017 and entered a written marital termination agreement providing Willoughby would pay spousal support for 36 months unless the recipient remarried or died. The agreement is silent on cohabitation and does not label the support as rehabilitative.
- Willoughby moved in October 2018 to terminate spousal support under N.D.C.C. § 14-05-24.1(3), alleging Erickson had cohabited in a marriage-like relationship since mid-2017; he submitted an affidavit. Erickson filed a response but presented no affidavits or other evidence and no hearing was requested.
- The district court found Willoughby proved habitual cohabitation for at least one year, found Erickson presented no evidence the award was rehabilitative, determined the 2017 written agreement did not bar termination for cohabitation, and terminated support effective when the court ordered it in December 2018.
- Erickson appealed the termination; Willoughby cross-appealed seeking retroactive termination to the date he served his motion and sought appellate fees. The trial court denied Erickson’s request for attorney’s fees under the frivolous-claim statute.
- The North Dakota Supreme Court affirmed: (1) § 14-05-24.1(3) applies because the 2017 agreement did not expressly preserve support during cohabitation; (2) Erickson failed to prove the rehabilitative exception; (3) the district court did not abuse discretion by making termination effective on the court’s order date; and (4) no attorney’s fees were warranted; the appeal was not frivolous.
Issues
| Issue | Erickson's Argument | Willoughby's Argument | Held |
|---|---|---|---|
| Whether spousal support may be terminated under N.D.C.C. § 14-05-24.1(3) when the marital termination agreement is silent about cohabitation | The written agreement set termination conditions (remarriage or death) and, because it did not include cohabitation, the statute cannot be used to terminate support | The 2017 agreement is silent on cohabitation and was entered after the 2015 statutory amendment, so § 14-05-24.1(3) applies and support terminates upon proven habitual cohabitation | Held for Willoughby: silence in a post-2015 written agreement does not invoke the "unless otherwise agreed in writing" exception; statute applies |
| Whether the rehabilitative-support exception in § 14-05-24.1(4) prevents termination | The support is rehabilitative, so subsections 2 and 3 do not apply | Erickson produced no evidence the award was rehabilitative; burden lies with her once cohabitation proven | Held for Willoughby: Erickson failed to prove the award was rehabilitative; exception not shown |
| Proper effective date of termination (retroactivity to service of motion) | Implicitly argued termination should be retroactive to service of motion | The statute requires termination "upon an order of the court"; effective date within court's discretion; retroactivity not mandatory | Held for Erickson: Court did not abuse discretion by making termination effective on the date of the court order rather than the service date |
| Whether Willoughby's motion or Erickson's appeal was frivolous so as to award attorney's fees | Willoughby's motion and appeal were frivolous and fees should be awarded to Erickson | Motion was factually and legally grounded; cross-request for appellate fees denied because appeal not frivolous | Held for Willoughby: motion not frivolous; trial court did not abuse discretion denying fees; appeal not frivolous so no appellate fees awarded |
Key Cases Cited
- Bindas v. Bindas, 923 N.W.2d 803 (N.D. 2019) (statutory interpretation of § 14-05-24.1(3) and effect of post-amendment written agreements)
- Varty v. Varty, 923 N.W.2d 131 (N.D. 2019) (standard for reversing district court findings in spousal-support modification)
- Glass v. Glass, 889 N.W.2d 885 (N.D. 2017) (district court discretion in setting effective date for termination of spousal support)
- Norberg v. Norberg, 845 N.W.2d 348 (N.D. 2014) (discussing effective-date discretion for termination of child support and analogy to spousal support)
- Botteicher v. Becker, 910 N.W.2d 861 (N.D. 2018) (standard for determining when a claim is frivolous under N.D.C.C. § 28-26-01(2))
- Estate of Pedro v. Scheeler, 856 N.W.2d 775 (N.D. 2014) (frivolous-claim definition and fee-shifting standards)
- Heley v. Heley, 506 N.W.2d 715 (N.D. 1993) (distinguishing rehabilitative and permanent spousal support)
- Nuveen v. Nuveen, 795 N.W.2d 308 (N.D. 2011) (preference for rehabilitative support and guidance on types of spousal support)
- Frontier Fiscal Servs., LLC v. Pinky's Aggregates, Inc., 928 N.W.2d 449 (N.D. 2019) (standard for deeming an appeal frivolous)