Kimberlee A. Markegard, n/k/a Kimberlee A. Erickson, Plaintiff, Appellant, and Cross-Appellee
Brian G. Willoughby, Defendant, Appellee, and Cross-Appellant
from the District Court of Adams County, Southwest Judicial
District, the Honorable Rhonda R. Ehlis, Judge.
Kristan A. Redmann, Mandan, N.D., for plaintiff, appellant,
C. Nodland, Bismarck, N.D., for defendant, appellee, and
Kimberlee Erickson, formerly known as Kimberlee Markegard,
appeals and Brian Willoughby cross-appeals from an order and
amended judgment terminating Willoughby's spousal support
obligation. Erickson argues the district court erred in
terminating her spousal support, and Willoughby argues the
court erred by failing to make its order terminating support
retroactive to the date of the service of his motion. We
Erickson and Willoughby were married in 2004. They were
divorced in May 2017. They filed a marital termination
agreement, agreeing to spousal support and distribution of
the marital estate. The parties agreed Willoughby would pay
spousal support for thirty-six months, stating:
Beginning on the first of the month upon entry of
Judgment in this matter and for twelve (12)
consecutive months in total, Brian shall pay to Kimberlee $4,
000 each month for spousal support.
Upon the conclusion of the twelve (12) months, Brian shall
thereafter pay to Kimberlee $3, 500 each month, for spousal
support, for twenty-four (24) consecutive months.
Brian shall pay this spousal support obligation to Kimberlee
for the duration of the thirty-six (36) months upon entry of
Judgment, unless she remarries or dies.
district court entered an order and judgment incorporating
the parties' agreement, including the spousal support.
In October 2018, Willoughby moved to terminate his spousal
support obligation under N.D.C.C. § 14-05-24.1(3),
arguing Erickson had been cohabiting in a relationship
analogous to marriage since July or August 2017. Willoughby
filed an affidavit in support of his motion. Erickson
responded to the motion, arguing her spousal support should
not be terminated because Willoughby was required to prove a
material change in circumstances, N.D.C.C. §
14-05-24.1(3) does not apply to terminate rehabilitative
spousal support, under the terms of the judgment her spousal
support is rehabilitative, and the parties agreed the support
would terminate only upon remarriage or death. Erickson did
not file an affidavit or other evidence. Neither party
requested a hearing.
The district court granted Willoughby's motion and
terminated his spousal support obligation. The court found
N.D.C.C. § 14-05-24.1(3) applied and Willoughby was not
required to prove a material change in circumstances. The
court also found the parties did not agree in writing that
cohabitation would not terminate the spousal support,
Erickson failed to present any evidence the spousal support
was rehabilitative, and Willoughby established Erickson had
been continuously cohabiting in a relationship analogous to
marriage since August 2017. The court ordered the termination
of Willoughby's spousal support obligation was effective
Erickson argues the district court erred in terminating her
spousal support under N.D.C.C. § 14-05-24.1(3).
The district court's findings of fact in its decision
modifying spousal support will be reversed on appeal only if
they are clearly erroneous. See Varty v. Varty, 2019
ND 49, ¶ 6, 923 N.W.2d 131. A finding of fact is clearly
erroneous if it is induced by an erroneous view of the law,
if there is no evidence to support it, or if, on the basis of
the entire record, we are left with a definite and firm
conviction a mistake has been made. Id. at ¶ 7.
Statutory interpretation is a question of law, which is fully
reviewable on appeal. Bindas v. Bindas, 2019 ND 56,
¶ 10, 923 N.W.2d 803.
Section 14-05-24.1, N.D.C.C., governs spousal support and
authorizes the district court to ...