                Filed 6/27/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                       STATE OF NORTH DAKOTA


                                  2019 ND 170


Kimberlee A. Markegard,
n/k/a Kimberlee A. Erickson,              Plaintiff, Appellant, and Cross-Appellee

      v.

Brian G. Willoughby,                    Defendant, Appellee, and Cross-Appellant


                                 No. 20180445


      Appeal from the District Court of Adams County, Southwest Judicial District,
the Honorable Rhonda R. Ehlis, Judge.

      AFFIRMED.

      Opinion of the Court by Tufte, Justice.

       Kristan A. Redmann, Mandan, N.D., for plaintiff, appellant, and cross-
appellee.

       Chad C. Nodland, Bismarck, N.D., for defendant, appellee, and cross-
appellant.
                             Markegard v. Willoughby
                                    No. 20180445


       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

                                           1
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 modify support orders, 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
       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.
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.


                                           A
[¶8]   Erickson argues the parties explicitly agreed on the conditions that would
terminate the spousal support, they did not include cohabitation as a condition, and
therefore her support could not be terminated on the basis of cohabitation.
[¶9]   Our standard for interpreting statutes is well established:
       The primary purpose of statutory interpretation is to 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.
Bindas, 2019 ND 56, ¶ 10, 923 N.W.2d 803 (quoting Ferguson v. Wallace-Ferguson,
2018 ND 122, ¶ 7, 911 N.W.2d 324).
[¶10] In Bindas, 2019 ND 56, ¶ 11, 923 N.W.2d 803, we interpreted N.D.C.C. § 14-
05-24.1(3) and held:
              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

                                           3
       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.
[¶11] In Bindas, 2019 ND 56, ¶ 13, 923 N.W.2d 803, the parties’ marital termination
agreement did not explicitly address whether the spousal support obligation would
terminate upon cohabitation, but they entered into the agreement in 2009 before the
2015 amendments to N.D.C.C. § 14-05-24.1 became effective. We explained this
Court previously held cohabitation could not be the sole basis for termination of
spousal support, the law in existence when the contract is entered into forms a part of
that contract, the parties’ agreement did not include cohabitation as a condition that
would terminate the support, and the agreement did not explicitly contradict the
background law. Bindas, at ¶¶ 14-15. We held the effect of the agreement was that
cohabitation by itself was not sufficient to terminate spousal support and the
agreement’s incorporation of the pre-2015 background law satisfied the “[u]nless
otherwise agreed to by the parties in writing” exception to N.D.C.C. § 14-05-24.1(3).
Bindas, at ¶¶ 15-16.
[¶12] Our interpretation of the language of the statute in Bindas guides this case. We
held N.D.C.C. § 14-05-24.1(3) does not apply if the parties have a contrary agreement
in writing.   Bindas, 2019 ND 56, ¶ 11, 923 N.W.2d 803.               Justice Crothers’
concurrence in Bindas, at ¶ 27, anticipated this case:
       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. . . . 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.
We agree. We conclude a written spousal support agreement entered into after the
2015 statutory amendment must expressly provide for continued spousal support to
a cohabiting spouse or N.D.C.C. § 14-05-24.1(3) will apply.

                                           4
[¶13] In this case, the marital termination agreement was executed in April 2017 and
is silent about whether the spousal support will terminate upon cohabitation. The law
at the time Erickson and Willoughby entered into the agreement required termination
of spousal support upon the court’s finding that the spouse receiving support had been
habitually cohabiting for more than one year. Erickson and Willoughby did not agree
in writing that the spousal support would not terminate upon cohabitation. The
agreement does not satisfy the “[u]nless otherwise agreed to by the parties in writing”
exception to N.D.C.C. §14-05-24.1(3), and therefore the statute requires termination
upon a finding of cohabitation.


                                          B
[¶14] Erickson also argues termination of her spousal support was improper because
her spousal support is rehabilitative and N.D.C.C. § 14-05-24.1(3) does not apply to
rehabilitative support under N.D.C.C. § 14-05-24.1(4).
[¶15] The district court considered Erickson’s argument that her spousal support was
rehabilitative. The court found, “No where in either the Stipulation and Property
Settlement Agreement or the Judgment is there any mention of what type of spousal
support is required.” The court further found, “No evidence was provided to this
Court that the spousal support awarded to [Erickson] was rehabilitative in nature, and
therefore N.D.C.C. § 14-05-24.1(4) does not apply.”
[¶16] Section 14-05-24.1(4), N.D.C.C., states the subsections requiring termination
of spousal support upon remarriage or habitual cohabitation do not apply to
rehabilitative spousal support. The party moving for termination of spousal support
has the initial burden to prove cohabitation justifying termination. Cf. Varty, 2019
ND 49, ¶ 6, 923 N.W.2d 131 (the party seeking modification of spousal support has
the burden of proving there has been a material change in circumstances warranting
a change in the amount of support). If that initial burden is met, the party opposing
the motion has the burden to prove one of the exceptions applies. Cf. Cermak v.
Cermak, 1997 ND 187, ¶ 6 n.1, 569 N.W.2d 280 (stating “permanent spousal support

                                          5
may terminate upon the remarriage of the recipient spouse unless the recipient shows
extraordinary circumstances”); D.E. v. K.F., 2012 ND 253, ¶ 11, 825 N.W.2d 832
(stating the party relying on a statute of limitations defense has the burden to prove
the action is barred, but the party claiming the benefit of an exception to a statute of
limitations has the burden to show the exception applies).
[¶17] Willoughby had the initial burden to prove Erickson had been cohabiting in a
relationship analogous to marriage for at least one year. Once he met that burden,
Erickson had the burden to prove an asserted exception applied. The district court
found Erickson did not present any evidence about the type of spousal support she
was awarded. Erickson failed to present any evidence about the type of support
ordered, and the agreement is silent about whether the support is rehabilitative. The
court’s finding is not clearly erroneous.
[¶18] The district court did not misapply the law, and its findings are supported by
the evidence in the record. We conclude the court’s decision to terminate Erickson’s
spousal support is not clearly erroneous.


                                            III
[¶19] Willoughby argues the district court abused its discretion by failing to make
its order terminating support retroactive to the date of the service of his motion. He
claims that extending his payment obligation past the date when he served his motion
contradicts the clear intent of the statute.
[¶20] The district court has discretion in setting the date the spousal support
obligation terminates. See Glass v. Glass, 2017 ND 17, ¶ 10, 889 N.W.2d 885. A
district court abuses its discretion when it acts in an arbitrary, unreasonable, or
unconscionable manner, or when it misinterprets or misapplies the law. Id.
[¶21] Section 14-05-24.1(3), N.D.C.C., states the court shall terminate spousal
support “upon an order of the court” finding that the spouse receiving support has
been habitually cohabiting with another in a relationship analogous to marriage for
one year or more. The plain language of N.D.C.C. § 14-05-24.1(3) does not require

                                               6
the court to terminate the spousal support upon the date of the service of the motion
if the court later finds habitual cohabitation. In comparison, N.D.C.C. § 14-05-24.1(2)
provides for spousal support “termination upon the remarriage.” We have said that
child support, although “[n]ot subject to retroactive modification,” N.D.C.C. § 14-
08.1-05(1)(c), may be terminated effective on the date of the motion or some later
appropriate effective date within the discretion of the district court. Norberg v.
Norberg, 2014 ND 90, ¶ 40, 845 N.W.2d 348. To the extent the court may have
similar discretion in setting the effective date of spousal support termination, a
question we need not decide here, it is certainly within its discretion to terminate
support effective on the date the court entered its order. See Glass, 2017 ND 17,
¶¶ 10, 15, 889 N.W.2d 885 (holding the district court has discretion in deciding what
date to terminate spousal support based on receiving spouse’s remarriage).
Willoughby moved to terminate support in October 2018, and the district court
ordered the support be terminated in December 2018. Under the facts of this case, we
conclude the district court did not abuse its discretion by setting the effective date of
termination on the date the court entered its order.


                                           IV
[¶22] Erickson argues the district court erred by denying her request for attorney’s
fees. She contends Willoughby’s motion was frivolous and attorney’s fees must be
awarded under N.D.C.C. § 28-26-01(2).
[¶23] We will not reverse a district court’s decision on attorney’s fees on appeal
unless the court abused its discretion. Bindas, 2019 ND 56, ¶ 18, 923 N.W.2d 803.
Under N.D.C.C. § 28-26-01(2), the court must award attorney’s fees if it finds a claim
is frivolous. “A claim for relief is frivolous under N.D.C.C. § 28-26-01(2) only if
there is such a complete absence of actual facts or law a reasonable person could not
have expected a court would render a judgment in that person’s favor.” Botteicher
v. Becker, 2018 ND 111, ¶ 18, 910 N.W.2d 861 (quoting Estate of Pedro v. Scheeler,
2014 ND 237, ¶ 14, 856 N.W.2d 775).

                                           7
[¶24] Willoughby’s motion to terminate his spousal support obligation was
successful and was not frivolous. We conclude the district court did not abuse its
discretion by denying Erickson’s request for attorney’s fees.


                                          V
[¶25] Willoughby also requests this Court award his costs and attorney’s fees for
having to litigate this appeal. “An appeal is frivolous if it is flagrantly groundless,
devoid of merit, or demonstrates persistence in the course of litigation which could
be seen as evidence of bad faith.” Frontier Fiscal Servs., LLC v. Pinky’s Aggregates,
Inc., 2019 ND 147, ¶ 21. We do not find Erickson’s appeal to be frivolous, and we
deny Willoughby’s request.


                                          VI
[¶26] It is unnecessary to address the parties’ other arguments because they are either
unnecessary to our decision or are without merit. We affirm the order and amended
judgment.
[¶27] Jerod E. Tufte
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.

       I concur in the result.
       Daniel J. Crothers
       McEvers, Justice, concurring.
[¶28] I reluctantly concur. The majority avoids addressing our long line of cases
categorizing spousal support. This Court has repeatedly stated there are two types of
spousal support, rehabilitative and permanent. See Williams v. Williams, 2015 ND
129, ¶ 10, 863 N.W.2d 508; Peterson v. Peterson, 2010 ND 165, ¶ 14, 788 N.W.2d
296; Marschner v. Marschner, 2001 ND 4, ¶ 6, 621 N.W.2d 339; Heley v. Heley, 506
N.W.2d 715, 719 (N.D. 1993). This Court has also referred to spousal support as
“temporary” support. We have stated: “[w]e prefer temporary rehabilitative support
to remedy . . . disadvantage, and indefinite permanent support is appropriate only if

                                          8
a spouse ‘cannot be adequately restored to independent economic status.’” Nuveen
v. Nuveen, 2011 ND 44, ¶ 26, 795 N.W.2d 308 (quoting Heley v. Heley, 506 N.W.2d
715, 720 (N.D. 1993)). However, temporary support has been used to describe both
rehabilitative spousal support and other spousal support ordered for periods of short
duration. See Tuhy v. Tuhy, 2018 ND 53, ¶¶ 14-15, 907 N.W.2d 351 (using term
“temporary” to describe spousal support award for a period of four years following
a request for rehabilitative spousal support); Hoverson v. Hoverson, 2013 ND 48,
¶¶ 6, 13, 828 N.W.2d 510 (using term “temporary” to describe the spousal support
awarded for two years); Quamme v. Bellino, 2002 ND 159, ¶ 2, 652 N.W.2d 360
(using the term “temporary” to describe rehabilitative spousal support award for a
period of four years); Schoenwald v. Schoenwald, 1999 ND 93, ¶¶ 10-12, 593 N.W.2d
350 (describing spousal support as temporary and not permanent where ordered
spousal support ends when the obligor retires).
[¶29] The underlying stipulation clearly was not for permanent spousal support,
because it is only for a period of 36 months. Because there was no evidence presented
to the district court on the reason for the stipulated spousal support, it is not clear
whether the spousal support was rehabilitative in nature or temporary for some other
purpose. Had Markegard offered some evidence that the spousal support was
intended to be rehabilitative in nature, the outcome may have been different.
[¶30] Lisa Fair McEvers




                                          9
