Sack v. Sack

SANDSTROM, Justice,

dissenting.

[¶ 19] The majority radically alters our divorce law by abandoning the requirement of a disadvantaged spouse before spousal support can be awarded. I dissent for four reasons. First, the parties did not raise the issue here or in the court below. Second, abandoning the disadvantaged spouse requirement is unnecessary to resolve this case. Third, the majority misapprehends the history and legal basis for the disadvantaged spouse requirement for spousal support. Fourth, the majority’s action is contrary to clear legislative intent.

I

[¶ 20] The parties did not raise the issue here or in the court below. In this case, Trent Sack argued only that Theresa Sack was not a disadvantaged spouse and attempted to distinguish this case from this Court’s past cases on the disadvantaged spouse requirement. At no time did either party argue the disadvantaged spouse requirement had outgrown its usefulness or was superfluous in light of the Ruff-Fischer guidelines. We have repeatedly refused to address issues raised for the first time on appeal. E.g., Wenzel v. Wenzel, 469 N.W.2d 156, 158 (N.D.1991) (“We have repeatedly held that issues not raised in the trial court cannot be raised for the first time on appeal.”). Furthermore, this Court does not decide cases on the basis of arguments not brought before it. See Owens v. State, 2001 ND 15, ¶ 32, 621 N.W.2d 566 (“We decide only issues which have been thoroughly briefed and argued.”). The majority has impermissi-bly extended its reach into an issue not properly before this Court.

II

[¶ 21] Abandoning the disadvantaged spouse requirement is unnecessary to resolve this case. The majority affirms the district court’s findings of fact, conclusions of law, and order for judgment. The district court addressed both the disadvantaged spouse requirement and the Ruff-Fischer guidelines and decided Theresa Sack was a disadvantaged spouse entitled to spousal support. The award of spousal support was not clearly erroneous. Therefore, this case has not presented a need to *162reevaluate the disadvantaged spouse requirement, and the majority did not need to address the issue. Issues unnecessary to resolving an appeal need not be addressed. Olander Contracting Co. v. Gail Wachter Investments, 2002 ND 65, ¶ 48, 643 N.W.2d 29. Further, it is imprudent to decide a significant issue without briefing and argument. E.g., Owens, 2001 ND 15, ¶ 32, 621 N.W.2d 566 (“We decide only issues which have been thoroughly briefed and argued.”); Sande v. City of Grand Forks, 269 N.W.2d 93, 99 (N.D.1978) (“We are therefore reluctant to base an opinion upon failure to file a claim within a short period, in the absence of briefing and argument on the possible constitutional question.”).

Ill

[¶ 22] The majority misapprehends the history and legal basis for the disadvantaged spouse requirement for spousal support. The majority apparently believes this Court manufactured the “disadvantaged spouse” doctrine out of whole cloth in 1985 for no apparent reason. In fact, as Professor Marcia O’Kelly of the University of North Dakota School of Law has explained, the doctrine was announced years earlier to save the constitutionality of spousal support.

[¶ 23] The majority states at ¶ 7 that “ ‘disadvantaged spouse’ was first used in North Dakota as a descriptive term,” citing Bullock v. Bullock, 376 N.W.2d 30, 31 (N.D.1985). This statement misses nine years and eleven prior opinions of this Court’s relying on the relationship between spousal support and the disadvantaged spouse.

[¶ 24] Professor O’Kelly outlined the history of spousal support. Marcia O’Kelly, Entitlements to Spousal Support After Divorce, 61 N.D. L.Rev. 225 (1985). Professor O’Kelly explains that historically, alimony was a continuation of the husband’s duty to support his wife. Id. at 235.

Before 1976, North Dakota cases reflected unqualified acceptance of statutory alimony as the common-law concept of continuation after divorce of the husband’s duty to support and maintain his wife during marriage.

Id. Professor O’Kelly points out that this concept was explicitly endorsed by this Court in Nugent v. Nugent, 152 N.W.2d 323, 327 (N.D.1967). O’Kelly, supra, at 235 n. 50.

[¶ 25] But the legal landscape changed in 1971, when the United States Supreme Court, in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), “decided for the first time that the equal protection clause of the Constitution significantly limits the power of government to differentiate treatment, entitlements, or duties on the basis of gender.” O’Kelly, supra, at 240. Professor O’Kelly explains that the “court correctly recognized the need to replace the old notion of marital support in order to preserve the constitutionality of the alimony statute” when the alimony statute of North Dakota was challenged as impermissibly discriminating against husbands on the basis of sex. Id. at 241 (discussing Bingert v. Bingert, 247 N.W.2d 464 (N.D.1976)).

[¶ 26] It was in Bingert v. Bingert, that this Court first discussed the concept of a disadvantaged spouse and spousal support. 247 N.W.2d at 468. The issue before the Court was whether the alimony statute of North Dakota impermissibly discriminated against husbands on the basis of sex. Id. at 466. The appellant argued North Dakota’s alimony statute, located at that time in N.D.C.C. § 14-05-24, was unconstitutional because it was based in part on the husband’s common-law duty to support his wife during marriage, which he contended *163was also unconstitutional sex discrimination. Id. at 468. Upholding the constitutionality of North Dakota’s alimony statute, this Court concluded the duty to pay spousal support was not a continuation of the husband’s duty to support his wife during marriage, but was an independent duty. Id. at 468-69. In doing so, Justice Vogel stated, “We believe that the trend in modern domestic-relations law is to treat alimony as a method for rehabilitating the party disadvantaged by the divorce. This seems to be the basis of the Uniform Marriage and Divorce Act, adopted in at least four States, not including North Dakota.” Id. at 469 (emphasis added). The Court ultimately held that North Dakota’s spousal support statute was neutral on its face regarding sex, applied equally to men and women, and therefore, passed constitutional muster. Id.

[¶ 27] Since 1976 and prior to Bullock in 1985, this Court continued discussing the need of a disadvantaged spouse in spousal support cases. See Nastrom v. Nastrom, 262 N.W.2d 487, 491 n. 1 (N.D.1978); Carr v. Carr, 300 N.W.2d 40, 46 (N.D.1980); Williams v. Williams, 302 N.W.2d 754, 758 (N.D.1981); Jochim v. Jochim, 306 N.W.2d 196, 199 (N.D.1981); Svetenko v. Svetenko, 306 N.W.2d 607, 611 (N.D.1981); Martin v. Martin, 307 N.W.2d 541, 544 (N.D.1981); Herrick v. Herrick, 316 N.W.2d 72, 75 (N.D.1982); Gooselaw v. Gooselaw, 320 N.W.2d 490, 493 (N.D.1982); Briese v. Briese, 325 N.W.2d 245, 249 (N.D.1982); Smith v. Smith, 326 N.W.2d 697, 700 (N.D.1982); Jondahl v. Jondahl, 344 N.W.2d 63, 72 (N.D.1984); Seablom v. Seablom, 348 N.W.2d 920, 924 (N.D.1984).

[¶ 28] Without recognizing the legal or historical significance of the disadvantaged spouse requirement, the majority now spontaneously and without warning casts it aside as superfluous next to the Ruff-Fischer guidelines. The majority incorrectly notes the time the disadvantaged spouse concept gained prominence in the law. Then, it trivializes it, stating this Court used it as “a. descriptive term,” rather than an emerging trend in the law. And finally, without discussing whether modern spousal support jurisprudence has changed again, the majority discounts the disadvantaged spouse requirement as no longer needed. I would not cast aside so readily a concept of the law that is well established in caselaw and emerged to meet changing societal norms.

IV.

[¶ 29] Finally, the majority’s action is contrary to clear legislative intent of the North Dakota Legislative Assembly.

[¶ 30] The requirement that a person be a disadvantaged spouse in order to be entitled to receive spousal support has been settled caselaw in North Dakota for 30 years.

[¶ 31] “It is a settled rule of statutory construction that when a statute or a clause or provision thereof has been construed by a court of last resort, and the same is substantially reenacted, the legislature may be regarded as adopting such construction.” Lembke v. Unke, 171 N.W.2d 837, 852 (N.D.1969); see also 73 Am.Jur.2d Statutes § 221 (2001) (“Since it is presumed that the legislature knew a construction, long acquiesced in, given by the courts to a statute reenacted by the legislature, there is a presumption of an intention to adopt the construction as well as the language of the prior enactment.”).

[¶ 32] Such a reenactment has occurred in North Dakota resulting in legislative adoption of the disadvantaged spouse requirement. In 2001, the Legislative Assembly amended and reenacted N.D.C.C. § 14-05-24 and adopted N.D.C.C. § 14-05-24.1, which separated North Dakota’s property division and *164spousal support statutes. 2001 N.D. Sess. Laws ch. 149, § 10; 2001 N.D. Sess. Laws ch. 150, § 1. Senate Bill 2046, the bill that enacted a new statute for spousal support, was intended to be a house-keeping measure, simply intended to “clean up and coordinate” the family law statutes without making any substantive changes. Hearing on S.B.2046 Before the Senate Judiciary Comm., 57th N.D. Legis. Sess. (Jan. 24, 2001) (testimony of Sherry Mills Moore, State Bar Ass’n of N.D. Family Law Task Force); Hearing on S.B.2046 Before the House Judiciary Comm., 57th N.D. Legis. Sess. (Mar. 14, 2001) (testimony of Sherry Mills Moore, State Bar Ass’n of N.D. Family Law Task Force).

[¶ 33] The disadvantaged spouse requirement was adopted by this Court long before the 2001 statutory amendments. The legislature adopted a new spousal support statute that was intended to clean up the family law statutes, and it did not intend any substantive change to spousal support law. We presume the legislature knew of this Court’s application of the disadvantaged spouse requirement and intended to adopt it when it amended the family law statutes in 2001. Therefore, the majority has now altered law that the legislature acquiesced to without any indication from the legislature that a change of law was needed.

V

[¶ 34] In conclusion, the majority has extended its reach further than necessary or appropriate for this case. The majority raises on its own and dispatches without briefing or argument the issue of whether the disadvantaged spouse requirement should be abandoned, an issue not properly before this Court and the resolution of which is unnecessary to resolve this case. The majority changes the law while misapprehending the history and legal basis for the disadvantaged spouse requirement and defying the intent of the legislature. Therefore, I dissent.

[¶ 35] DALE Y. SANDSTROM, J.