948 N.W.2d 848
N.D.2020Background
- Tim and Kari O’Keeffe divorced in 2015 after negotiating a settlement: Tim to pay Kari $5,000/month for 120 months; the decree said the amount and duration were non-modifiable and support would terminate on Kari’s death or remarriage.
- In Feb. 2019 Tim moved to terminate spousal support under N.D.C.C. § 14‑05‑24.1(3), alleging Kari had habitually cohabited in a marriage‑like relationship since Jan. 2016; Kari did not contest the cohabitation facts.
- The district court denied Tim’s termination motion, concluding the award was rehabilitative (and thus not terminable for cohabitation under § 14‑05‑24.1(4)).
- The district court also struck certain mediation materials Tim filed and awarded Kari $1,590 in attorney’s fees.
- On appeal the Supreme Court reversed the denial of termination (holding the award was non‑rehabilitative), affirmed the attorney’s‑fee award, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (Kari) | Defendant's Argument (Tim) | Held |
|---|---|---|---|
| Whether the spousal‑support award was rehabilitative (so not terminable for cohabitation) | Support is rehabilitative and therefore § 14‑05‑24.1(4) exempts it from termination for cohabitation | Support is non‑rehabilitative (addresses income disparity/maintains standard of living) and thus terminable upon one year of cohabitation under § 14‑05‑24.1(3) | Reversed: award is non‑rehabilitative; district court’s rehabilitative finding was clearly erroneous; remanded for proceedings consistent with that conclusion |
| Whether the parties expressly agreed in writing that support survives cohabitation | The non‑modifiable 120‑month term reflects an agreement that support continues despite cohabitation | No express written agreement excepting cohabitation; statute applies absent explicit language | Affirmed: no written agreement to override § 14‑05‑24.1(3) |
| Whether the district court abused its discretion awarding attorney’s fees for improperly filed mediation documents | Fees were proper because Tim improperly filed mediation materials and Kari lacked resources | Fee award was an abuse of discretion | Affirmed: court made required findings on relative ability/need and did not abuse discretion |
| Whether the district court improperly relied on inadmissible hearsay affidavit in finding facts | Kari objected to affidavit’s admissibility at hearing | Tim treated his affidavit as part of the record and urged the court to consider it | Majority did not reverse on evidentiary grounds; concurrence criticized the district court’s reliance on hearsay and noted an evidentiary deficiency that could have supported reversal if raised on appeal |
Key Cases Cited
- Varty v. Varty, 923 N.W.2d 131 (N.D. 2019) (standard of review for factual findings)
- Markegard v. Willoughby, 930 N.W.2d 108 (N.D. 2019) (agreement must expressly provide continued support to a cohabiting spouse to avoid statutory termination)
- Wold v. Wold, 744 N.W.2d 541 (N.D. 2008) (distinguishing rehabilitative and permanent support)
- Innis‑Smith v. Smith, 905 N.W.2d 914 (N.D. 2018) (permanent support may be appropriate for substantial income/earning power disparity)
- Krueger v. Krueger, 748 N.W.2d 671 (N.D. 2008) (support to avoid consumption of property settlement indicates non‑rehabilitative aim)
- Greenwood v. Greenwood, 596 N.W.2d 317 (N.D. 1999) (court may award rehabilitative and permanent support together when rehabilitation alone is inadequate)
- Knudson v. Knudson, 916 N.W.2d 793 (N.D. 2018) (rehabilitative support is to increase earning capacity via education/training)
- Toni v. Toni, 636 N.W.2d 396 (N.D. 2001) (parties may stipulate to divest modification jurisdiction, but subsequent statutory changes affect such stipulations)
- Datz v. Dosch, 846 N.W.2d 724 (N.D. 2014) (standard and required findings for attorney’s‑fee awards in divorce under § 14‑05‑23)
- Cusey v. Nagel, 695 N.W.2d 697 (N.D. 2005) (affidavits offered to prove facts may be hearsay if not admitted or supported by testimony)