Janis Klein, n/k/a Janis Banasik, Plaintiff, Appellee and Cross-Appellant
Scott Klein, Defendant, Appellant and Cross-Appellee
from the District Court of Burleigh County, South Central
Judicial District, the Honorable Cynthia Feland, Judge.
C. Nodland, 418 E. Broadway Ave., Ste. 246, Bismarck, ND
58501, for plaintiff, appellee and cross-appellant.
H. Oster, 619 Riverwood Dr., Ste. 202, Bismarck, ND 58504,
for defendant, appellant and cross-appellee.
VandeWalle, Chief Justice.
1] Scott Klein appealed, and Janis Klein cross-appealed, a
district court order denying Scott Klein's motion to
terminate spousal support. We affirm.
2] Scott Klein and Janis Klein, now known as Janis Banasik,
married in 1983 and divorced in 2009. In the divorce
judgment, the district court awarded Janis Klein permanent
spousal support of $4, 500 per month until such time as she
died or remarried. On August 19, 2015, Scott Klein moved to
terminate the support award under N.D.C.C. §
14-05-24.1(3), which became effective August 1, 2015. In an
accompanying affidavit, Scott Klein alleged Janis Klein
habitually cohabitated with another individual in a
relationship analogous to marriage for at least one year, as
required to terminate a permanent spousal support award under
N.D.C.C. § 14-05-24.1(3). Janis Klein, among other
arguments, argued N.D.C.C. § 14-05-24.1(3) does not
apply to cohabitation prior to August 1, 2015.
3] After a hearing on the motion, the district court agreed
with Janis Klein. The court began by noting statutes
generally do not apply retroactively unless expressly
declared so by the legislature. Continuing, the court noted
cohabitation, absent other circumstances, was insufficient to
terminate an award of permanent spousal support prior to
enactment of N.D.C.C. § 14-05-24.1(3). By bringing his
motion on August 19, 2015, the court concluded Scott Klein
sought to attach legal consequences to Janis Klein's
cohabitation when none existed at the time of that
cohabitation. The court concluded N.D.C.C. §
14-05-24.1(3) does not apply in this manner, meaning the
court could only consider Janis Klein's cohabitation
after August 1, 2015. After assuming, without finding, Janis
Klein habitually cohabitated in a relationship analogous to
marriage, the court concluded Janis Klein had not cohabitated
for at least a year, as measured from August 1, 2015. Because
he did not satisfy the requirements under N.D.C.C. §
14-05-24.1(3), the district court denied Scott Klein's
motion to terminate the spousal support.
4] The dispositive issue on appeal is limited to whether
N.D.C.C. § 14-05-24.1(3) applies to cohabitation prior
to August 1, 2015. Whether a statute applies retroactively is
a question of law. Smith v. Baumgartner, 2003 ND
120, ¶ 9, 665 N.W.2d 12. Questions of law are fully
reviewable on appeal. State v. Boehm, 2014 ND 154,
¶ 8, 849 N.W.2d 239.
5] In response to alleged instances of spousal support
recipients cohabitating in relationships analogous to
marriage without being married for purposes of maintaining a
permanent spousal support award terminable upon remarriage,
the legislature enacted N.D.C.C. § 14-05-24.1(3).
See generally Hearing on H.B. 1399 Before the House
Judiciary Comm., 64th N.D. Legis. Sess. (February 9, 2015).
This section provides:
Unless otherwise agreed to by the parties in writing, upon an
order of the court based upon a preponderance of the evidence
that the spouse receiving support has been habitually
cohabitating with another individual in a relationship
analogous to a marriage for one year or more, the court shall
terminate spousal support.
Section 14-05-24.1(3), N.D.C.C., applies to permanent spousal
support awards but does not apply to rehabilitative spousal
support awards. N.D.C.C. § 14-05-24.1(4). Section
14-05-24.1(3), N.D.C.C., became effective August 1, 2015.
2015 N.D. Sess. Laws ch. 124, § 1. Prior to this date,
cohabitation alone did not warrant termination of a permanent
spousal support award conditioned to terminate upon
remarriage of the spouse receiving support. See
Cermak v. Cermak, 1997 ND 187, ¶ 9, 569 N.W.2d
6] Statutes are generally not retroactive unless the
legislature expressly declares so. N.D.C.C. § 1-02-10.
Nothing within N.D.C.C. § 14-05-24.1(3) explicitly
states it is to apply retroactively, nor has Scott Klein
provided any authority to that effect. Without this
directive, N.D.C.C. § 14-05-24.1(3) only applies
prospectively. The district court came to the same
conclusion, which Scott Klein does not contest. Rather, Scott
Klein argues his motion is consistent with this conclusion