Quamme v. Bellino

VANDE WALLE, Chief Justice,

concurring in the result.

[¶ 24] I agree with parts I, II and III of the majority opinion. I concur in part IV with the understanding that upon Brian Quamme’s retirement or death a motion to continue or terminate the support payment will not be denied solely on the ground retirement or death was anticipated at the time the order was issued and therefore cannot constitute a change in circumstances.

[¶ 25] In Stoutland v. Stoutland’s Estate, 103 N.W.2d 286 (N.D.1960), cited by the majority opinion, the issue was whether the statute permitted a trial court to order spousal support after the death of the obligor. There was no reservation of the issue such as there was in this instance. In other similar cases decided by this Court the issue of spousal support after the death of the obligor was not reserved by the trial court but rather spousal support ordered by the trial court was to continue after death. Gierke v. Gierke, 1998 ND 100, 578 N.W.2d 522; Seablom v. Seablom, 348 N.W.2d 920 (N.D.1984); Matter of Estate of Gustafson, 287 N.W.2d 700 (N.D.1980).

[¶26] Prior to August 1, 2001, N.D.C.C. § 14-05-24 provided that a court “from time to time may modify its orders in these respects.” Essentially the same language is now found in N.D.C.C. § 14-05-24.1, effective August 1, 2001, i.e., the court “may modify its spousal support orders.” But our prior cases construing N.D.C.C. § 14-05-24 have required an “unforeseen material change in circumstances” before a modification in spousal *368support may be made. E.g., Cermak v. Cermak, 1997 ND 187, ¶ 17, 569 N.W.2d 280; Wheeler v. Wheeler, 548 N.W.2d 27, 30 (N.D.1996). Death cannot be unforeseen. Yet in this instance, where the trial court reserves the issue of continuation of spousal support after Quamme’s death, there can be no contention that death was anticipated, and therefore a motion to discontinue or to continue, spousal support is unavailable because no unforeseen change in circumstances exists. Rather, I assume the trial court’s purpose was to determine whether Bellino was still in need of spousal support and whether Quamme’s estate could continue to pay the support at the time of the subsequent motion. This procedure is apparently authorized by statute and. our prior case law. It leaves the parties unsettled although it does allow the court to review the status of the parties at the time of Quamme’s death without any other material change of circumstances.

[¶ 27] WILLIAM A. NEUMANN, J., concurs.