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Markegard v. Willoughby

Supreme Court of North Dakota

June 27, 2019

Kimberlee A. Markegard, n/k/a Kimberlee A. Erickson, Plaintiff, Appellant, and Cross-Appellee
v.
Brian G. Willoughby, Defendant, Appellee, and Cross-Appellant

          Appeal 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, and cross-appellee.

          Chad C. Nodland, Bismarck, N.D., for defendant, appellee, and cross-appellant.

          OPINION

          TUFTE, JUSTICE

         [¶1] 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 affirm.

         I

         [¶2] 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.

         The district court entered an order and judgment incorporating the parties' agreement, including the spousal support.

         [¶3] 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.

         [¶4] 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 immediately.

         II

         [¶5] Erickson argues the district court erred in terminating her spousal support under N.D.C.C. § 14-05-24.1(3).

         [¶6] 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.

         [¶7] Section 14-05-24.1, N.D.C.C., governs spousal support and authorizes the district court to ...


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