                  Filed 2/25/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 56


Michael T. Bindas,                                           Plaintiff and Appellee

      v.

Mari F. Bindas,                                           Defendant and Appellant


                                  No. 20180232


      Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Frank L. Racek, Judge.

      REVERSED AND REMANDED.

      Opinion of the Court by Tufte, Justice.

       Robert J. Schultz (argued) and Ashley C. Halvorson (on brief), Fargo, N.D.,
for plaintiff and appellee.

      DeAnn M. Pladson, Fargo, N.D., for defendant and appellant.

      Matthew A. Sagsveen, Solicitor General, and Courtney R. Titus, Assistant
Attorney General, Bismarck, N.D., for amicus curiae State of North Dakota.
                                 Bindas v. Bindas
                                   No. 20180232


       Tufte, Justice.
[¶1]   Mari Bindas appeals from an order terminating Michael Bindas’ spousal
support obligation. We conclude the district court erred in terminating Mari Bindas’
spousal support under N.D.C.C. § 14-05-24.1(3). We reverse and remand.
                                          I
[¶2]   Michael and Mari Bindas were married in 1984. In October 2009, Michael
Bindas sued for divorce. The parties filed a marital termination agreement, agreeing
to spousal support and distribution of the marital estate. The parties agreed Michael
Bindas would pay spousal support to Mari Bindas in the amount of $3,200 per month
until she was 62 years old. The parties further agreed the spousal support would
continue until the death of either party, Mari Bindas remarried, or the payment on
February 1, 2023, had been made. The district court approved and adopted the
parties’ termination agreement in its order. In November 2009, a judgment was
entered incorporating the parties’ entire agreement.
[¶3]   In January 2018, Michael Bindas moved to modify his spousal support
obligation, arguing the spousal support should be terminated under N.D.C.C. § 14-05-
24.1(3) because Mari Bindas had been habitually cohabiting with her boyfriend for
more than one year. He alleged Mari Bindas and her boyfriend purchased a home
together in October 2014 and lived together for two years before purchasing the
home. He also filed an affidavit and attached a copy of the warranty deed for Mari
Bindas’ home in support of his motion.
[¶4]   Mari Bindas opposed the motion and requested the court award her attorney’s
fees and costs under N.D.C.C. § 28-26-01(2). She argued the motion should be
denied because Michael Bindas did not provide evidence she is habitually cohabiting
in a relationship analogous to marriage, N.D.C.C. § 14-05-24.1(3) does not apply
because the parties specifically agreed about the circumstances under which the

                                         1
spousal support obligation would terminate in their marital termination agreement,
and the statute does not apply to rehabilitative awards of spousal support. Mari
Bindas also filed an affidavit in support of her brief opposing the motion.
[¶5]   After a hearing, the district court granted Michael Bindas’ motion. The court
stated N.D.C.C. § 14-05-24.1 provides spousal support shall be terminated when the
receiving spouse has been habitually cohabiting with another individual in a
relationship analogous to marriage for one year or more. The court found Mari
Bindas has been cohabiting with her boyfriend since 2014, they have been dating
since August 2012 and are in an exclusive relationship, they purchased a home
together in 2014, and they share the bills related to the house. The court ordered
Michael Bindas’ spousal support obligation be terminated under N.D.C.C. § 14-05-
24.1(3). The court also denied Mari Bindas’ request for attorney’s fees.
                                          II
[¶6]   Mari Bindas argues the district court erred in terminating her spousal support
under N.D.C.C. § 14-05-24.1(3). She contends there was not sufficient evidence the
statutory requirements for termination had been met.
[¶7]   Section 14-05-24.1, N.D.C.C., authorizes the district court to order and modify
spousal support and also governs termination of support under certain circumstances,
stating:
       1. Taking into consideration the circumstances of the parties, the court
          may require one party to pay spousal support to the other party for
          a limited period of time in accordance with this section. The court
          may modify its spousal support orders.
       2. Unless otherwise agreed to by the parties in writing, spousal support
          is terminated upon the remarriage of the spouse receiving support.
          Immediately upon remarriage, the spouse receiving support shall
          provide notice of the remarriage to the payor spouse at the last
          known address of the payor spouse.
       3. 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 cohabiting with
          another individual in a relationship analogous to a marriage for one
          year or more, the court shall terminate spousal support.
       4. Subsections 2 and 3 do not apply to rehabilitative spousal support.

                                          2
Section 14-05-24.1, N.D.C.C., was amended in 2015 to add subsections 2, 3, and 4.
2015 N.D. Sess. Laws ch. 124, § 1. The current version of the statute became
effective on August 1, 2015. Id. This Court previously held N.D.C.C. § 14-05-
24.1(3) applies to divorce judgments entered prior to the effective date of the recent
amendments and it applies prospectively to cohabitation occurring after August 1,
2015. Klein v. Klein, 2016 ND 153, ¶ 12, 882 N.W.2d 296.
[¶8]   The district court found Mari Bindas has been cohabiting with her boyfriend
since 2014, they began dating in August 2012, they are in an exclusive relationship,
they purchased a home together in 2014, and they share various bills related to the
house. The court found Mari Bindas has been habitually cohabiting with another
individual in a relationship analogous to marriage for one year or more. The court
found the spousal support is not rehabilitative spousal support and therefore the
exception in N.D.C.C. § 14-05-24.1(4) did not apply and the support obligation
should be terminated under N.D.C.C. § 14-05-24.1(3). Although Mari Bindas argued
the statute did not apply because the parties agreed to the conditions under which the
spousal support would terminate and cohabitation was not included as a condition of
termination, the district court did not address that argument.
[¶9]   On appeal, Mari Bindas argues N.D.C.C. § 14-05-24.1(3) states the court shall
terminate spousal support upon cohabitation for more than one year “unless otherwise
agreed to by the parties in writing.” She contends the legislature included the
language “unless otherwise agreed to by the parties” to exclude those situations where
the parties reached a private agreement. She claims the statute does not apply in this
case because she entered into a marital termination agreement with Michael Bindas,
which was incorporated into the judgment, agreeing she should receive spousal
support and the agreement specified conditions under which spousal support would
terminate.
[¶10] Our standard for construing statutes is well established:
             Statutory interpretation is a question of law, which is fully
       reviewable on appeal. Nelson v. Johnson, 2010 ND 23, ¶ 12, 778
       N.W.2d 773. The primary purpose of statutory interpretation is to

                                          3
       determine the intention of the legislation. In re Estate of Elken, 2007
       ND 107, ¶ 7, 735 N.W.2d 842. Words in a statute are given their plain,
       ordinary, and commonly understood meaning, unless defined by statute
       or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. If
       the language of a statute is clear and unambiguous, “the letter of [the
       statute] is not to be disregarded under the pretext of pursuing its spirit.”
       N.D.C.C. § 1-02-05. If the language of the statute is ambiguous,
       however, a court may resort to extrinsic aids to interpret the statute.
       N.D.C.C. § 1-02-39.
Ferguson v. Wallace-Ferguson, 2018 ND 122, ¶ 7, 911 N.W.2d 324 (quoting Zajac
v. Traill Cty. Water Res. Dist., 2016 ND 134, ¶ 6, 881 N.W.2d 666).
[¶11] Section 14-05-24.1(3), N.D.C.C., is not ambiguous. The plain language of the
statute authorizes the court to terminate spousal support based solely on the receiving
spouse’s cohabitation unless otherwise agreed to by the parties in writing.
“Otherwise” is defined as “[t]o the contrary; differently.” Black’s Law Dictionary
1276 (10th ed. 2014). If the parties have a contrary agreement in writing, the statute
does not apply to terminate spousal support. The language “unless otherwise agreed
to by the parties in writing” limits the application of the statute.
[¶12] We have generally held, “When a settlement agreement is merged into a
judgment, the agreement is interpreted and enforced as a final judgment and not as a
separate contract between the parties.” Silbernagel v. Silbernagel, 2011 ND 140,
¶ 11, 800 N.W.2d 320. However, N.D.C.C. § 14-05-24.1(3) explicitly requires the
court to consider the parties’ agreement, in addition to the divorce judgment, if the
parties have a written agreement about spousal support.
[¶13] In this case, Mari and Michael Bindas filed a marital termination agreement
after Michael Bindas sued for divorce. The district court adopted the parties’
agreement, and the entire agreement was incorporated into the judgment. The
agreement addressed spousal support, and the relevant portion states:
       Commencing the first day of the month after the sale of the homestead,
       and continuing on or before the first day of each month thereafter until
       Mari is 62 years of age, Mike shall pay to Mari the sum of Three
       Thousand Two Hundred Dollars ($3,200) per month. Mike’s spousal
       support payments shall continue until the death of either party, Mari’s

                                            4
       remarriage, or until the payment due on February 1, 2023 has been
       made, whichever occurs sooner.
The agreement did not explicitly address whether the spousal support obligation
would terminate upon Mari Bindas’ cohabitation with another individual.
[¶14] This Court has long held, “the law of the land in existence at the time a
contract is entered into forms a part of that contract the same as if it were expressly
incorporated therein, and the obligations of the contract are determined by the law in
force at the time it is made.” Lillethun v. Tri-County Elec. Co-op., Inc., 152 N.W.2d
147, 150 (N.D. 1967); see also First Interstate Bank of Fargo, N.A. v. Larson, 475
N.W.2d 538, 545 (N.D. 1991); Schue v. Jacoby, 162 N.W.2d 377, 382 (N.D. 1968);
Blakemore v. Cooper, 15 N.D. 5, 14, 106 N.W. 566, 569 (1905) (citing United States
v. Quincy, 71 U.S. 535 (1866)); see also 11 Williston on Contracts §§ 30:19, 30:23
(4th ed. 2018). When the parties reached their agreement in 2009, this Court had
previously held “cohabitation cannot be the sole basis for termination of spousal
support at least where cohabitation is not included as a condition for termination in
the divorce decree.” Cermak v. Cermak, 1997 ND 187, ¶ 14, 569 N.W.2d 280.
[¶15] In their written agreement, Mari and Michael Bindas did not include
cohabitation as a condition that would terminate the spousal support. Our law at that
time was as stated in Cermak. The termination agreement did not explicitly contradict
the background law that cohabitation alone may not be a basis to terminate spousal
support. As a result, the effect of the agreement is that cohabitation is not by itself
sufficient to terminate spousal support.
[¶16] Because the parties’ written agreement satisfies the “[u]nless otherwise agreed
to by the parties in writing” exception to N.D.C.C. § 14-05-24.1(3), the statute does
not require termination of Mari Bindas’ spousal support upon a finding of
cohabitation. We conclude the district court erred in granting Michael Bindas’ motion
to modify spousal support and misapplied the law by concluding it was required to
terminate the spousal support under N.D.C.C. § 14-05-24.1(3).
                                           III


                                           5
[¶17] Mari Bindas argues the district court erred by denying her motion for
attorney’s fees. She contends the court had discretion under N.D.C.C. § 14-05-23 to
award attorney’s fees in a divorce proceeding and the court did not apply the correct
legal standard before denying her request.
[¶18] Mari Bindas requested attorney’s fees under N.D.C.C. § 28-26-01(2) in her
response to Michael Bindas’ motion. Section 28-26-01, N.D.C.C., allows the court
to award attorney’s fees for frivolous claims. We will not reverse a court’s decision
on attorney’s fees on appeal unless the court abused its discretion. Cermak, 1997 ND
187, ¶ 20, 569 N.W.2d 280. Mari Bindas did not request attorney’s fees under
N.D.C.C. § 14-05-23 before the district court. Michael Bindas’ motion was not
frivolous, and the court did not abuse its discretion denying the request for fees under
N.D.C.C. § 28-26-01(2).       The court may revisit whether attorney’s fees are
appropriate on remand.
                                          IV
[¶19] We have considered the parties’ remaining arguments and issues and consider
them to be either without merit or unnecessary to our decision. We reverse the district
court’s order and remand for further proceedings.
[¶20] Jerod E. Tufte
      Daniel J. Crothers
      Jon J. Jensen
      William A. Herauf, D.J.
      Gerald W. VandeWalle, C.J.

[¶21] The Honorable William A. Herauf, D.J., sitting in place of McEvers, J.,
disqualified.




       Crothers, Justice, specially concurring.
[¶22] I agree with and have signed the majority opinion. I write separately to explain
a result that looks opposite of that directed under the statute.



                                           6
[¶23] Section 14-05-24.1(3), N.D.C.C., authorizes a court to terminate permanent
spousal support upon finding “the spouse receiving support has been habitually
cohabiting with another individual in a relationship analogous to a marriage for one
year or more.” Spousal support is terminable upon cohabitation “[u]nless otherwise
agreed to by the parties in writing.” Id. In other words, after the effective date of this
statute a court must terminate spousal support upon finding cohabitation by the
receiving party unless the parties agree in writing that support continues
notwithstanding cohabitation.
[¶24] Unlike the result directed by the statute, we conclude here that spousal support
does not terminate because the written agreement and resulting judgment did not say
it terminates upon cohabitation. We reach that holding because the parties’ written
agreement did not say support terminates upon cohabitation. Majority opinion, at
¶ 16.
[¶25] Section 14-05-24.1(3), N.D.C.C., became effective on August 1, 2015. The
statute does not apply to conduct occurring prior to its effective date. Klein v. Klein,
2016 ND 153, ¶ 12, 882 N.W.2d 296. Any disqualifying conduct of the party
receiving support must occur after August 1, 2015. Id. However, we must apply the
“otherwise agreed to by the parties in writing” part of the law to the couple’s
agreement no matter when it was made. These unique facts present a situation where
the language from the 2009 divorce must be used to determine compliance with the
2015 law, even though the 2015 law was not retroactive.
[¶26] The divorce in this case was finalized in 2009. In 2009 North Dakota law said
cohabitation did not terminate spousal support. Majority opinion, at ¶ 14. Therefore,
the 2009 agreement and resulting judgment which were silent on spousal support did
not alter “the law of the land” that spousal support continued even if the receiving
party was cohabitating. Id. Section 14-05-24.1(3), N.D.C.C., changed the “law of the
land” in 2015 when spousal support could be terminated for cohabitation.
[¶27] Section 14-05-24.1(3), N.D.C.C., did not retroactively change the legal impact
of the parties’ 2009 written agreement made under then-existing law. Therefore, the

                                            7
agreement’s silence regarding continuation or termination of spousal support must be
honored going forward, and the 2015 statutory provision for terminating spousal
support does not apply. Conversely, and while not an issue before the court now, I
anticipate N.D.C.C. § 14-05-24.1(3) would apply according to its plain terms to a
marital termination agreement identical to that used by the Bindas if the agreement
was executed on or after August 1, 2015. Otherwise said, in this case it is not the
agreement, but when it was executed and became part of the judgment, that controls
the seemingly perverse result under the statute. Therefore, if a spousal support
provision like that used in the Bindas’ divorce was executed after N.D.C.C.
§ 14-05-24.1(3) became effective, the absence of language stating spousal support
continues even if the receiving party cohabitates would require, rather than preclude,
termination of spousal support.
[¶28] Daniel J. Crothers
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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