Filed 9/16/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 201
Kari Cathryn O’Keeffe, Plaintiff, Appellee, and
Cross-Appellant
v.
Timothy Michael O’Keeffe, Defendant, Appellant,
and Cross-Appellee
No. 20190379
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Bradley A. Cruff, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen, Justices
VandeWalle and Crothers, and District Judge Bahr joined. Chief Justice
Jensen also filed an opinion concurring specially.
DeAnn M. Pladson (argued), Fargo, North Dakota, and Patti J. Jensen (on
brief), East Grand Forks, Minnesota, for plaintiff, appellee, and cross-
appellant.
Tracy J. Lyson, Fargo, North Dakota, for defendant, appellant, and cross-
appellee.
O’Keeffe v. O’Keeffe
No. 20190379
Tufte, Justice.
[¶1] Tim O’Keeffe appeals from district court orders denying his motion to
terminate spousal support and awarding attorney’s fees to Kari O’Keeffe.
Because the district court erred in concluding spousal support was
rehabilitative rather than permanent, we reverse the order denying Tim
O’Keeffe’s motion to terminate spousal support. We affirm the district court’s
award of attorney’s fees.
I
[¶2] Tim and Kari O’Keeffe were married in 1997 and divorced in 2015. The
parties resolved all issues through mediation and negotiation, and the
marriage was terminated in November 2015. Relevant to this appeal, the
parties agreed Tim O’Keeffe would pay Kari O’Keeffe spousal support of $5,000
per month for 120 months.
[¶3] The spousal support agreement in the divorce judgment stated:
Spousal Support. Tim shall pay as and for spousal support
to Kari the amount of $5,000 per month beginning November 1,
2015, and continuing on the first day of each month thereafter for
a period of 120 months. The amount and duration of spousal
support shall be non-modifiable by either party. The spousal
support shall terminate upon the death or remarriage of Kari. It is
intended that the support payable to Kari in accordance herewith
shall be includable in Kari’s gross income pursuant to Section 71
of the Internal Revenue Code and shall be deducted by Tim
pursuant to Section 215 of the Internal Revenue Code.
[¶4] In February 2019, Tim O’Keeffe moved the district court to terminate his
spousal support obligation. He attached an affidavit with his motion which
alleged Kari O’Keeffe had been habitually cohabiting with her fiance in a
relationship analogous to marriage since at least January 2016. Tim O’Keeffe
argued Kari O’Keeffe’s cohabitation should relieve him of his spousal support
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obligation under N.D.C.C. § 14-05-24.1(3). Kari O’Keeffe did not dispute the
facts in Tim O’Keeffe’s affidavit or present any contradictory evidence.
[¶5] The district court held two hearings on Tim O’Keeffe’s motion. At an
April 2019 hearing, the court heard the parties’ arguments regarding spousal
support. The court took Tim O’Keeffe’s motion under advisement. The court
requested a second hearing in August 2019 to address how an order affecting
spousal support would affect distribution of the marital estate. Before the
August 2019 hearing, Tim O’Keeffe filed a motion in limine and attached
mediation documents to his affidavit as an exhibit. He also subpoenaed the
mediator and filed a motion to compel the mediator’s attendance at the August
2019 hearing. Kari O’Keeffe moved for attorney’s fees, arguing Tim O’Keeffe
had improperly filed the mediation documents.
[¶6] On December 1, 2019, the district court issued two orders relevant to this
appeal. In the first order, the court denied Tim’s motion to terminate spousal
support. The court concluded that the spousal support provision in the divorce
judgment did not specifically provide for spousal support to continue upon
cohabitation. However, the court also concluded that because the spousal
support provision was for rehabilitative support, Tim O’Keeffe was not entitled
to termination of spousal support under N.D.C.C. § 14-05-24.1(4). The court
denied Tim O’Keeffe’s motion to terminate spousal support. In the second
order, the district court granted Kari O’Keeffe’s motion to strike improperly
filed documents and awarded $1,590.00 in attorney’s fees based on Tim
O’Keeffe’s improper submission of a mediation summary at the August 2019
hearing. Tim O’Keeffe appeals from both orders, and Kari O’Keeffe cross-
appeals from the first order.
II
[¶7] Tim O’Keeffe argues the district court erred in denying his motion to
terminate spousal support because it incorrectly concluded the spousal support
provision was rehabilitative. Kari O’Keeffe argues the district court correctly
denied the motion. However, on cross-appeal, she argues the district court
2
erred in finding the parties did not agree in writing that spousal support would
continue after cohabitation.
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.
Markegard v. Willoughby, 2019 ND 170, ¶ 6, 930 N.W.2d 108.
[¶8] Section 14-05-24.1, N.D.C.C., governs spousal support and states:
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.
Subsections 2, 3, and 4 of N.D.C.C. § 14-05-24.1 were added in 2015 and took
effect August 1, 2015. 2015 N.D. Sess. Laws ch. 124, § 1. The district court
entered Tim and Kari O’Keeffe’s amended divorce judgment in December 2015.
Therefore, the 2015 amendments to section 14-05-24.1 govern here.
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A
[¶9] Tim O’Keeffe argues the district court erred in determining the award of
spousal support in the amended judgment was for rehabilitative support.
Under N.D.C.C. § 14-05-24.1(4), spousal support may not be terminated for the
recipient party’s habitual cohabitation with another if the spousal support
award was rehabilitative. The divorce judgment here is silent as to whether
the spousal support is rehabilitative or permanent. The district court found
that the spousal support provision is rehabilitative. We disagree.
[¶10] Prior to the 2015 amendment to N.D.C.C. § 14-05-24.1, the terms
rehabilitative support and permanent support did not appear in the statutes
but only in this Court’s opinions. The 2015 amendment introduced an
important difference between rehabilitative support and all other support,
including support our cases have referred to as “permanent” and “temporary,”
which we will refer to here as non-rehabilitative support. After the
amendment, rehabilitative support was not subject to termination upon
cohabitation, but non-rehabilitative support, including what our opinions have
often but not uniformly referred to as “permanent” support, must be
terminated upon a showing of cohabitation for one year. N.D.C.C. § 14-05-
24.1(3) and (4). We give the statute’s use of the term “rehabilitative spousal
support” its plain meaning, informed by prior interpretation of that term in
our opinions, which we presume the legislature has taken into account in
drafting the statute. Heck v. Reed, 529 N.W.2d 155, 161 (N.D. 1995).
[¶11] We have said permanent spousal support and rehabilitative spousal
support are two distinct remedies. Wold v. Wold, 2008 ND 14, ¶ 14, 744 N.W.2d
541. “Rehabilitative spousal support is appropriate when it is possible to
restore a spouse to independent economic status or to equalize the burden of
the divorce by increasing that spouse’s earning capacity.” Id. Permanent
spousal support is appropriate when a spouse cannot be rehabilitated. Id.
“Even when a spouse is capable of rehabilitation, permanent spousal support
may be an appropriate remedy” to equalize the burdens of the divorce. Id.
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[¶12] We have acknowledged that a “substantial disparity between the
[spouses’] incomes that cannot be readily adjusted by property division or
rehabilitative support” may support an award of “indefinite permanent
support to maintain the disadvantaged spouse.” Krueger v. Krueger, 2008 ND
90, ¶ 9, 748 N.W.2d 671; see also Ingebretson v. Ingebretson, 2005 ND 41, ¶ 9,
693 N.W.2d 1. Such “permanent” spousal support “may be appropriate when
there is a substantial income disparity and a substantial disparity in earning
power that cannot be adjusted by property division or rehabilitative support.”
Innis-Smith v. Smith, 2018 ND 34, ¶ 22, 905 N.W.2d 914 (citing Stephenson v.
Stephenson, 2011 ND 57, ¶ 27, 795 N.W.2d 357); Friesner v. Friesner, 2019 ND
30, ¶ 14, 921 N.W.2d 898. In appropriate circumstances a district court may
award both rehabilitative support and permanent, non-rehabilitative support.
Greenwood v. Greenwood, 1999 ND 126, ¶ 9, 596 N.W.2d 317 (stating where a
spouse “cannot be adequately restored to independent economic status,” “a
court should consider whether, in addition to rehabilitative support,
permanent spousal support is also necessary.”).
[¶13] Rehabilitative support includes support that is awarded to provide the
receiving spouse “an opportunity to acquire an education, training, work skills,
or experience to become self-supporting.” Knudson v. Knudson, 2018 ND 199,
¶ 12, 916 N.W.2d 793. Our cases establish a preference that the district court
award rehabilitative support when it is possible to restore a spouse to
“independent economic status” or “when the burden of the divorce can be
equalized by increasing the disadvantaged spouse’s earning capacity.” Degnan
v. Degnan, 2016 ND 61, ¶ 11, 877 N.W.2d 38 (quoting Pearson v. Pearson, 2009
ND 154, ¶ 7, 771 N.W.2d 288). In contrast, when the burdens of divorce are
equalized by support that operates directly to maintain the receiving spouse’s
standard of living rather than increase that spouse’s own earning ability, that
is non-rehabilitative or permanent support. Williams v. Williams, 2015 ND
129, ¶ 10, 863 N.W.2d 508.
[¶14] In finding that the spousal support was rehabilitative, the district court
relied on an affidavit filed by Tim O’Keeffe. At the argument before the district
court, Kari O’Keeffe argued that this affidavit could not be considered as
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evidence. Although the district court did not receive the affidavit in evidence,
the court apparently relied on the affidavit in making its findings. On appeal,
neither side’s brief argues the district court erred by making findings in
reliance on information contained in the affidavit that was not in evidence. A
party abandons an argument by failing to raise it in the party’s appellate brief.
Bearce v. Yellowstone Energy Dev., LLC, 2019 ND 89, ¶ 29, 924 N.W.2d 791;
Gowan v. Ward County Comm’n, 2009 ND 72, ¶ 11, 764 N.W.2d 425.
[¶15] The district court found Kari O’Keeffe has a bachelor’s degree in
elementary education and about ten years of experience in the insurance
industry. Kari O’Keeffe told Tim O’Keeffe that she could complete coursework
to renew her teaching license in less than two years. Alternatively, Kari
O’Keeffe has the ability to regain her insurance agent’s license. Either path
would increase her earning capacity and could be completed in considerably
less than 120 months. The 120-month duration of the spousal support award
is not consistent with the evidence regarding potential future increases in Kari
O’Keeffe’s earning capacity. These findings do not support a determination
that the spousal support award here was rehabilitative.
[¶16] At the time of the divorce, there was a substantial earning disparity
between the parties. Kari O’Keeffe worked as a consultant for Rodan & Fields
and her income was approximately $5,106 per month, which included $5,000
per month from spousal support. Meanwhile, Tim O’Keeffe was earning
approximately $17,683 per month from his law practice and title company.
The district court stated its findings and reasoning as follows:
Even if Kari seeks and attains higher education, absent an
unanticipated event, this income disparity and earning power gap
will persist for the duration of their respective careers.” See Innis-
Smith, ¶ 22, 905 N.W.2d at 914 (“Permanent spousal support may
be appropriate when there is a substantial income disparity and a
substantial disparity in earning power that cannot be adjusted by
property division or rehabilitative support”).
Even if Kari O’Keeffe would obtain the credentials necessary to teach or sell
insurance, there would likely continue to be a significant disparity between her
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income and Tim O’Keeffe’s. Because this spousal support award addresses a
substantial income disparity by directly transferring income rather than
addressing a disparity in earning capacity, it does not support a finding the
spousal support award was rehabilitative. See Innis-Smith, 2018 ND 34, ¶ 22,
905 N.W.2d 914.
[¶17] The district court also considered at length the effect terminating
spousal support would have on the division of marital assets. Ultimately, it
found spousal support necessary so that Kari O’Keeffe would not have to
consume her property settlement to supplement her income. This does not
support a finding that the spousal support award was rehabilitative. See
Krueger, 2008 ND 90, ¶ 9, 748 N.W.2d 671. Additionally, the court found “[t]he
spousal support terminating with remarriage supports it being permanent.”
[¶18] The district court’s ancillary findings of fact point toward a conclusion
that the spousal support provision was for non-rehabilitative support. Yet, the
district court found the spousal support provision was for rehabilitative
support. We conclude the district court’s finding that the spousal support
provision is rehabilitative was clearly erroneous. Therefore, we reverse the
order denying Tim O’Keeffe’s motion to terminate spousal support, and we
remand for further proceedings consistent with this opinion.
B
[¶19] On cross-appeal, Kari O’Keeffe argues the district court erred in
determining the spousal support provision in the amended judgment did not
constitute an agreement by the parties that spousal support would continue
upon Kari O’Keeffe’s cohabitation.
[¶20] The agreement incorporated in the judgment states that it is non-
modifiable. Kari O’Keeffe argues the non-modifiable provision in the
agreement evidences an intent by the parties that spousal support would
continue for 120 months even if she cohabited in a relationship analogous to
marriage for one year. In support, she cites Toni v. Toni, 2001 ND 193, ¶¶ 21–
23, 636 N.W.2d 396, in which we narrowly held that parties to a divorce may
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stipulate to divest the district court of jurisdiction to modify spousal support.
Importantly, however, N.D.C.C. §§ 14-05-24.1(3) and (4) were not in effect
when we decided Toni in 2001. The parties here negotiated their agreement
with assistance of experienced family law counsel who were presumably aware
of what was then a very recent change in the spousal support statute. With
knowledge, whether actual or presumed, that the law requires a district court
to terminate spousal support upon a showing of cohabitation, the parties did
not include any language to the contrary. In Markegard, 2019 ND 170, ¶ 13,
930 N.W.2d 108, we held that a spousal support agreement must expressly
provide for continued spousal support to a cohabiting spouse or N.D.C.C. § 14-
05-24.1(3) will apply. Because the parties did not expressly agree that spousal
support would continue upon Kari O’Keeffe’s cohabitation, we conclude the
district court did not err in determining the parties had not “otherwise agreed”
under N.D.C.C. § 14-05-24.1(3).
III
[¶21] Tim O’Keeffe also argues the district court abused its discretion in
awarding attorney’s fees.
An award of attorney’s fees is within the district court’s
discretion and will only be disturbed on appeal if the district court
abuses its discretion. Wolt v. Wolt, 2011 ND 170, ¶ 26, 803 N.W.2d
534. “A court abuses its discretion if it acts in an arbitrary,
unreasonable, or unconscionable manner, its decision is not the
product of a rational mental process leading to a reasoned decision,
or if it misinterprets or misapplies the law.” Id.
Datz v. Dosch, 2014 ND 102, ¶ 22, 846 N.W.2d 724.
[¶22] Section 14-05-23, N.D.C.C., authorizes a district court to award
attorney’s fees in a divorce case. A district court has discretion to award
attorney’s fees under N.D.C.C. § 14-05-23 based on the parties’ relative
abilities to pay, but it must make specific findings regarding the nonmoving
party’s ability to pay and the moving party’s need. Datz, 2014 ND 102, ¶ 23,
846 N.W.2d 724.
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[¶23] Here, the district court found Tim O’Keeffe has the ability to pay
attorney’s fees and Kari O’Keeffe does not. The court also found Tim O’Keeffe’s
filing of inadmissible mediation documents and the resulting motion to strike
improperly filed documents unnecessarily increased the parties’ costs. The
district court did not err, because it made findings about the parties’ relative
need and ability to pay. Also, the district court’s decision was not arbitrary,
unreasonable, or unconscionable. The district court did not abuse its discretion
in awarding attorney’s fees to Kari O’Keeffe. We therefore affirm the award of
attorney’s fees.
IV
[¶24] Because the district court erred in determining the spousal support here
was rehabilitative, we reverse the court’s denial of Tim O’Keeffe’s motion to
terminate spousal support, and we remand for further proceedings consistent
with this opinion. We affirm the district court’s award of $1,590 in attorney’s
fees to Kari O’Keeffe.
[¶25] Jerod E. Tufte
Douglas A. Bahr, D.J.
Gerald W. VandeWalle
Daniel J. Crothers
Jon J. Jensen, C.J.
[¶26] The Honorable Douglas A. Bahr, District Judge, sitting in place of
McEvers, J., disqualified.
Jensen, Chief Justice, concurring specially.
[¶27] The majority opinion is well written and I have signed the majority. I
agree with the result of section II.A because the parties did not raise a
challenge to the “evidence” upon which the district court relied to make its
factual findings. I write separately because the submission of affidavits
without stipulating to the admissibility of the contents or without providing
subsequent testimony is becoming more and more frequent. Submission of
affidavits without stipulating to the admissibility of the contents or without
9
providing subsequent testimony creates an evidentiary deficiency. Had the
evidentiary issue been raised I would have reached the same result, but for a
different reason; I would have reversed and remanded this case to the district
court for further proceedings following termination of the spousal support
because Kari O’Keeffe failed to satisfy her burden to establish an exception to
termination following her concession that she was cohabitating with another
individual.
[¶28] An evidentiary hearing on Timothy O’Keeffe’s motion to terminate his
spousal support was set at the request of the district court. At the start of the
initial hearing, the parties made the following statements to the court:
[W]e have agreed that we will submit this to the court not only on
the filings that have been filed but on our arguments to be made
here today. I don’t think either party intends to put on any
additional testimony or evidence today.
....
[W]e both agree that things are adequately briefed. This is a legal
issue and oral argument will suffice.
[¶29] The district court requested clarification regarding what the parties
believed had been provided as evidence. The court noted the following:
So, the exhibits or proposed exhibits that have been filed, are those
considered offered and accepted? I usually require them to be
stipulated to or offered and I make a ruling on them at trial, just
the fact that they were filed doesn’t mean that they are admitted
into evidence.
[¶30] Kari O’Keeffe’s counsel responded to the district court’s question as
follows:
Your Honor, with regard to…I agree with the Court. I think
without marking and offering them they are not part of the
evidentiary record. With regard to Mr. O’Keeffe’s affidavit, I
believe that is supportive of his motion but not evidence. I have a
10
concern that there’s information in Mr. O’Keeffe’s affidavit that
would be hearsay or not supported by adequate foundation, but as
to the attachments, so the exhibits that are attached to Mr.
O’Keeffe’s affidavit, I would have no objection to those being
admitted as evidence.
[¶31] At that juncture, the district court acknowledged the exhibits to Timothy
O’Keeffe’s affidavit would be received. Those exhibits related exclusively to
the issue of whether or not Kari O’Keeffe was cohabitating with another
individual. Subsequent to the admission of the exhibits attached to Timothy
O’Keeffe’s affidavit, no other exhibits were offered or received, and no
testimony was provided or facts otherwise stipulated to by the parties.
[¶32] During the subsequent legal arguments to the district court, Timothy
O’Keeffe’s counsel repeatedly referred to Timothy O’Keeffe’s affidavit as
factually supporting his motion. In response, Kari O’Keeffe’s counsel correctly
noted that Timothy O’Keeffe’s affidavit was not evidence. Specifically, Kari
O’Keeffe’s counsel noted the following:
Ms. Lyson made statements with regard to my client’s situation at
the time the parties’ divorced, in her presentation, as to whether
the court should determine this support to be rehabilitative or
permanent in nature. And your Honor, what is not in the record is
not evidence. So, I think it inappropriate for Ms. Lyson to talk with
you today, your Honor, or for the court to rely on any of the
statements that were made with regard to my client’s earning
ability at the time of the divorce.
[¶33] Timothy O’Keeffe’s counsel responded to the assertion the affidavits
were not evidence as follows:
I just want to address this statement that I made statements that
aren’t in the record. Mr. O’Keeffe has submitted a sworn affidavit
based upon his personal knowledge and information about the
facts and circumstances that existed throughout their marriage
and at the time of their divorce regarding their relative
circumstances and place in life. That is part of the record, your
Honor. There’s not been anything in the record to substantiate the
11
statements that were made by Ms. Jensen and if the court feels we
need to take some testimony on that then I think that this would
be the time to do it, otherwise, Mr. O’Keeffe’s affidavit is part of
the record. It is sworn. It is competent evidence of his first-hand
knowledge of the circumstances that existed at that time and the
court can consider it when looking at was this rehabilitative award
or was it a permanent award.
[¶34] Subsequently, when the district court entered its order on the motion for
termination of spousal support it made the following findings:
Tim attests that Kari has an Elementary Education Bachelor of
Arts degree, however, she never secured a full-time teaching job,
only substitute teaching. He further attests that after their
marriage in 1997, Kari began working for her father’s insurance
agency, where she worked full-time from 1999 to 2009. Tim attests
that after this Kari worked as a representative for Rodan & Fields,
a short period of time at Sanford, and became assistant manager
at a clothing store in the mall. She told him that she could complete
coursework to renew her North Dakota teaching license, which
would take less than two years to complete. He attests that in the
alternative, he understands that she could have regained licensure
as an insurance agent. Neither option, he attests, would have
taken 120 months to complete. On this basis, he argues that the
spousal support for 120 months was not intended to provide Kari
with the opportunity for education, work skills, experience, or to
become self-supporting, as she already had a college degree and
over ten years of experience as an insurance agent.
The court, in making its factual findings, clearly incorporated the substance of
Timothy O’Keeffe’s affidavit.
[¶35] Rule 801(c) of the North Dakota Rules of Evidence provides as follows:
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current
trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.
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[¶36] Timothy O’Keeffe’s affidavit is hearsay. Cusey v. Nagel, 2005 ND 84, 695
N.W.2d 697; Mehus v. Thompson, 266 N.W.2d 920, 924 (N.D. 1978). The
district court recognized the affidavit was hearsay and at the start of the
hearing questioned the parties how they planned to proceed. Kari O’Keeffe
agreed to the admission of the exhibits attached to the affidavit, but specifically
noted she would not agree to the admission of the allegations within the
affidavit itself. Timothy O’Keeffe did secure a stipulation to the admissibility
of the contents of the affidavit or call Timothy O’Keeffe as a witness.
[¶37] Rule 802 of the North Dakota Rules of Evidence reads as follows:
Hearsay is not admissible unless any of the following provides
otherwise:
(a) a statute;
(b) these rules; or
(c) other rules prescribed by the North Dakota Supreme Court.
[¶38] Timothy O’Keeffe’s affidavit was hearsay and was not admissible under
a statute, the Rules of Evidence, or other rule promulgated by this Court. It
was inadmissible hearsay which should not have been used for the subsequent
factual findings of the district court.
[¶39] Had the evidentiary deficiency been properly raised in this Court, it
would not have been necessary for this Court to make a determination of
whether or not the spousal support was rehabilitative or non-rehabilitative in
order to reverse the district court’s finding that the spousal support was
rehabilitative. A party moving for termination of spousal support has the
initial burden to prove cohabitation justifying termination. Markegard v.
Willoughby, 2019 ND 170, ¶ 16, 930 N.W.2d 108 (citing Varty v. Varty, 2019
ND 49, ¶ 6, 923 N.W.2d 131). If that initial burden is met, the party opposing
the motion has the burden to prove one of the exceptions applies. Id. (citing
Cermak v. Cermak, 1997 ND 187, ¶ 6 n.1, 569 N.W.2d 280).
[¶40] Here, Timothy O’Keeffe met his initial burden to establish cohabitation
justifying termination, a fact conceded by Kari O’Keeffe. The burden then
shifted to Kari O’Keeffe to prove one of the exceptions applied.
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[¶41] Kari O’Keeffe first argued that the parties’ judgment expressly exempted
cohabitation as a reason for termination of the spousal support. Section II.B.
of the majority opinion properly concludes the parties’ judgment did not
exempt cohabitation as reason for termination of spousal support.
[¶42] Kari O’Keeffe’s second argument was that the spousal support was
rehabilitative and exempt from termination. The judgment itself is silent on
whether or not the spousal support was rehabilitative or non-rehabilitative.
Neither party offered admissible evidence to establish their intent at the time
the divorce judgment was entered; the affidavit of Timothy O’Keeffe was
hearsay, the parties did not stipulate to the admission of evidence other than
the documents related to cohabitation, and no testimony was provided during
the hearing. The district court improperly considered Timothy O’Keeffe’s
affidavit and unnecessarily made a determination regarding the nature of the
support. A finding of fact is clearly erroneous if it is induced by an erroneous
view of the law, there is no evidence to support it, or if on the entire record we
are left with a definite and firm conviction a mistake has been made. Sims v.
Sims, 2020 ND 110, ¶ 12, 943 N.W.2d 804.
[¶43] As noted above, once Kari O’Keeffe conceded she was cohabitating with
another individual the burden of proof shifted to her to prove an exception
preventing termination of the spousal support. In the absence of testimony
from either party or affidavits properly stipulated to be evidence, the district
court received insufficient evidence to conclude Kari O’Keeffe had met her
burden to prove an exception to termination of the support. In the absence of
admissible evidence, had the issue been raised on appeal, we could have
concluded the district court’s finding the support was rehabilitative was clearly
erroneous because of insufficient evidence for Kari O’Keeffe to satisfy her
burden of proof. Neither the district court nor this Court are required to make
a definitive statement regarding the nature of the spousal support obligation
in the absence of evidence necessary for the party who carries the burden of
proof to satisfy that burden. The concept of burden of proof is perhaps best
stated in terms of a criminal case: a finding of not guilty only requires the jury
to determine the prosecution did not meet its burden of proof, it does not
14
require a determination the defendant is innocent. It is within our standard
of review to conclude a finding is clearly erroneous if there is no evidence in
the record to support the finding.
[¶44] I concur in the analysis and result within the majority opinion. I write
to caution parties on the use of affidavits without stipulating to the
admissibility of the contents of the affidavits as evidence or providing
subsequent testimony.
[¶45] Jon J. Jensen, C.J.
15