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Klein v. Klein

Supreme Court of North Dakota

July 20, 2016

Janis Klein, n/k/a Janis Banasik, Plaintiff, Appellee and Cross-Appellant
v.
Scott Klein, Defendant, Appellant and Cross-Appellee

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Cynthia Feland, Judge.

          Chad C. Nodland, 418 E. Broadway Ave., Ste. 246, Bismarck, ND 58501, for plaintiff, appellee and cross-appellant.

          Daniel H. Oster, 619 Riverwood Dr., Ste. 202, Bismarck, ND 58504, for defendant, appellant and cross-appellee.

          OPINION

          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.

         I

         [¶ 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.

         II

         [¶ 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 280.

         [¶ 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 ...


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