Appeal from the District Court of Richland County, Southeast Judicial District, the Honorable Daniel D. Narum, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by Kapsner, Justice.
[¶1] Richard D. Varriano appealed an order denying his motion to terminate his child support and spousal support obligations. Richard Varriano argued the district court erred in finding his former spouse, Denise Varriano, had not cohabited and had not violated a provision in the divorce judgment awarding her spousal support unless she cohabited with a significant other or remarried. We affirm.
[¶2] Richard Varriano and Denise Varriano were divorced in 2001. A provision in the divorce judgment awarded Denise Varriano the sum of $4,000 per month, which combined the child support award and spousal support award. The child support obligation was based upon Richard Varriano's income as stipulated by the parties. The amount Richard Varriano paid over the child support obligation, and up to $4,000 per month, was to be considered spousal support. As each of the parties' four children reached the age of eighteen, the portion of the award constituting spousal support increased, and the portion of the award constituting child support decreased. Richard Varriano was obligated to pay $4,000 per month until no children were eligible for child support. After the child support obligation terminated for all the children, the spousal support obligation was set at $1,000 per month for four more years. All child support payments were to be paid to the state disbursement unit, and Richard Varriano's income was subject to income withholding by the state disbursement unit. The judgment also provided Denise Varriano would no longer be eligible to receive spousal support if she "remarries, is deceased, or cohabit[s] with a significant other."
[¶3] In February 2010, the clerk sent a notice of arrears for $181,781.20 against Richard Varriano for "child support and/or spousal support," with payment due to the state disbursement unit. Richard Varriano filed an "opposition to notice of arrears," claiming he did not owe any arrearage because Denise Varriano had violated the divorce judgment's spousal support provisions by cohabiting with a significant other. An order to show cause was entered in March 2010 after Richard Varriano failed to pay the arrears. In May 2010, Richard Varriano filed a motion to terminate his child support and spousal support obligations, alleging Denise Varriano was already cohabiting with a significant other when the divorce judgment was entered. Richard Varriano argued the spousal support provision had been null and void due to Denise Varriano's cohabitation; he had therefore overpaid on his spousal support obligation, and the amount of overpayment should have offset the child support arrears.
[¶4] The district court held a hearing on Richard Varriano's motion on May 26, 2010. Richard Varriano appeared with his attorney, and Denise Varriano appeared without counsel. The state disbursement unit was not involved in the hearing. After receiving affidavits and hearing testimony from several witnesses on two of Denise Varriano's post-divorce relationships, the district court found Denise Varriano had ...