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Slorby v. Slorby

February 3, 2009

MAUREEN S. SLORBY, N.K.A. MAUREEN FERGUSON, PLAINTIFF AND APPELLEE
v.
TOM P. SLORBY, DEFENDANT AND APPELLANT



Appeal from the District Court of Pembina County, Northeast Judicial District, the Honorable Laurie A. Fontaine, Judge.

The opinion of the court was delivered by: Crothers, Justice.

REVERSED AND REMANDED.

[¶1] Tom P. Slorby appeals the district court's order denying his motion to abate spousal support. We reverse, concluding the district court erred in denying Tom Slorby's motion to abate spousal support, and we remand for a calculation consistent with this opinion.

I.

[¶2] Tom Slorby and Maureen S. Slorby were divorced in April 1999. The original divorce judgment did not require either party to pay spousal support. In 2001, the judgment was amended by stipulation. The amended judgment required Tom Slorby to pay $1,000 a month in spousal support starting in September 2001, until Maureen Slorby's death or remarriage, but not beyond January 2011. By stipulation, the judgment was amended again in 2004 to increase Tom Slorby's support obligation to $2,000 per month from $1,000 per month and to add a term ending Tom Slorby's support obligation when Maureen Slorby is eligible to receive social security benefits. The second amended judgment provided:

"[T]he defendant [Tom Slorby] shall pay the plaintiff [Maureen Slorby] as and for spousal support the sum of $1,000 per month from September 1, 2001 until March of 2003. Commencing in April 1, 2003, defendant [Tom Slorby] shall pay $1,500.00 per month spousal support until March 1, 2004. Commencing March 1, 2004, Defendant [Tom Slorby] shall pay $2,000.00 per month. The plaintiff [Maureen Slorby] acknowledges receipt of all payments of said spousal support sums through and including August 2004. The $2,000.00 per month payment shall continue until the plaintiff's [Maureen Slorby] death, remarriage, until she co-habits with a male adult not related to her or until she is eligible to receive Social Security benefits, but in no event beyond January 1, 2011, whichever occurs soonest. It is agreed that this provision is fair, just and equitable it is enforceable under North Dakota law and the Courts shall be divested of jurisdiction to modify spousal support in any manner whatsoever in amount, term, duration or otherwise upon entry of amended judgment herein except should defendant [Tom Slorby] become disabled. This agreement is further entered into by way of contract."

[¶3] In November 2007, Tom Slorby brought a Motion to Abate his spousal support obligation as of January 31, 2008 because Maureen Slorby became eligible to receive Social Security benefits on January 15, 2008. After a hearing on the motion, the district court denied Tom Slorby's motion stating, "Considering these agreements as a whole the intent appears to be clear that the spousal support would continue until January, 2011 when [Maureen Slorby] turns sixty five (65) years old." The court also concluded, "The plain language of the second amendment lists several options which may activate the termination of the spousal support and the court concludes the exact date was inserted to identify the date on which [Maureen Slorby] would become eligible to receive benefits under this agreement."

II.

[¶4] Tom Slorby argues the district court erred in denying his motion to abate spousal support because Maureen Slorby became eligible to receive Social Security benefits on January 15, 2008. "[A] settlement agreement that is wholly incorporated into the divorce judgment is merged into that judgment and ceases to be independently viable or enforceable." Sullivan v. Quist, 506 N.W.2d 394, 399 (N.D. 1993). "Once a settlement agreement is merged into a judgment, the agreement is interpreted and enforced as a final judgment and not as a separate contract between the parties." Silbernagel v. Silbernagel, 2007 ND 124, ¶ 10, 736 N.W.2d 441. Interpretation of a judgment is a question of law. Kienzle v. Selensky, 2007 ND 167, ¶ 9, 740 N.W.2d 393. "Questions of law are fully reviewable on appeal." Id. (citing Knoop v. Knoop, 542 N.W.2d 114, 117 (N.D. 1996)).

[¶5] If the language of a judgment is ambiguous, meaning the "language can be reasonably construed as having a least two alternative meanings," construction is allowed. Glasser v. Glasser, 2006 ND 238, ¶ 10, 724 N.W.2d 144. However, "if the language [of the judgment] is unambiguous and plain, neither construction nor interpretation is allowed, and the effect of the language must be based on the language's literal meaning." Id. When interpreting a judgment, the language of the judgment should be "construed as to give effect to each and every part of it, and bring all different parts into harmony as far as this can be done by fair and reasonable interpretation." Sullivan, 506 N.W.2d at 401 (quoting Lamb v. Major & Loomis Co., 60 S.E. 425, 426 (N.C. 1908)).

[¶6] Since the parties stipulation was incorporated verbatim into the amended judgment, "we are concerned only with [the] interpretation . . . of the judgment [and] not with the underlying contract." Botner v. Botner, 545 N.W.2d 188, 190 (N.D. 1996). The district court's application of a contract analysis instead of a judgment analysis is incorrect, but harmless because "the rules for interpreting judgments mirror the rules for interpreting contracts." Silbernagel, 2007 ND 124, ¶ 10, 736 N.W.2d 441.

[¶7] This dispute centers around addition of the terms "eligible to receive Social Security benefits" in the second amended judgment. The district court determined this phrase was not ambiguous and ordered Tom Slorby to continue paying spousal support until January 1, 2011, when Maureen Slorby reached sixty-five years old. In making this determination, the district court stated, "The Court concludes ordinary retirement age when a person receives full benefits has commonly been understood to be sixty-five (65) years old, although that exact ages varies today under current federal law based on when you were born."

[¶8] Tom Slorby agrees the language of the second amended judgment is not ambiguous. However, Tom Slorby argues the district court erred in requiring him to pay spousal support until January 1, 2011 because Maureen Slorby does not have to be sixty-five years old to be eligible to receive social security benefits. Tom Slorby contends his spousal support obligation should have terminated on January 15, 2008 because Maureen Slorby was eligible to receive social security benefits on that day since she turned sixty-two years old and had earned enough credits to receive social security benefits.

[¶9] After considering all of the agreements as a whole, we are convinced the district court's decision fails to give effect to each and every part of the judgment as required by Sullivan. 506 N.W.2d at 401. The first amended judgment stated spousal support would continue until "[Maureen Slorby's] death or remarriage, but not beyond January, 2011." Under the second amended judgment Tom Slorby's monthly spousal support obligation doubled and he was required to pay support until Maureen Slorby's "death, remarriage, until she co-habits with a male adult not related to her or until she is eligible to receive Social Security benefits, but in no event beyond January 1, 2011 whichever occurs soonest."

[¶10] The district court's determination that "the exact date [of January 1, 2011] was inserted to identify the date on which [Maureen Slorby] would become eligible to receive benefits under this agreement," fails to give effect to each and every part of the judgment as required by Sullivan because it disregards that Tom Slorby's monthly support was increased in 2004 from $1,000 to $2,000 per month and that the social security language was added by the second amended judgment. Since the judgment was first amended in 2001, January 2011 has always been the cut-off date, unless one of the conditions for earlier termination were met. The second amended judgment makes it clear the "eligible to receive Social Security" language was added by the parties to terminate Tom Slorby's spousal support prior to January 1, 2011 if Maureen Slorby became eligible to receive social security benefits prior to that date.

[¶11] We agree the phrase "eligible to receive Social Security benefits" is not ambiguous in the context of this case. Since the judgment language is unambiguous, "the effect of the language must be based on the language's literal meaning." Glasser, 2006 ND 238, ¶ 10, 724 N.W.2d 144. Eligible is defined as "fit and proper to be selected or to receive a benefit." Black's Law Dictionary 559 (8th ed. 2004). The record indicates Maureen Slorby received a social security statement on October 24, 2007, stating that as of her sixty-second birthday, January 15, 2008, she will be eligible to receive $337 a month in social security benefits. However, the district court believed Tom Slorby's spousal support obligation should continue until Maureen Slorby reaches sixty-five years old because Maureen Slorby's social security statement revealed she was only eligible to receive partial benefits rather than full social security benefits. Closer inspection of Maureen Slorby's social security statement reveals she is not entitled to receive full social security benefits until January 15, 2012, when Maureen Slorby reaches the age of sixty-six years old. Maureen Slorby will be eligible to receive $629 a month when she becomes sixty-six years old. The plain language of the second amended judgment does not require Maureen Slorby to be sixty-five years old or to be eligible to receive full social security benefits. The second ...


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