We recently examined a divorce decree that included a provision for termination upon the cohabitation of the recipient spouse. Baker v. Baker, 1997 ND 135, 566 N.W.2d 806. We noted we were not surprised that "cohabiting like husband and wife was made the functional equivalent of remarriage" in the divorce decree.
Thus, under Baker [ v. Baker, 1997 ND 135, ¶ 7, 566 N.W.2d 806,] the Court has “no continuing power to modify a final property distribution.” Daniel made the bargain he made to gain a divorce from Karen. He has to live with the results of his bargain as does Karen.
[¶ 8] Whether Denise Varriano's post-divorce relationship with VanErem included cohabitation with a significant other is a finding of fact which will not be set aside on appeal unless clearly erroneous. See Baker v. Baker, 1997 ND 135, ¶¶ 15, 19, 566 N.W.2d 806. "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, after a review of the entire record, we are left with a definite and firm conviction a mistake has been made." Nuveen v. Nuveen, 2011 ND 44, ¶ 3, 795 N.W.2d 308 (quoting Duff v. Kearns-Duff 2010 ND 247, ¶ 13, 792 N.W.2d 916).
Mary Peterson had no evidence the Kippens would be violating the statute, but rather she presumed the Kippens' unlawful conduct simply from their unmarried status, and such presumption is discrimination based on "status with respect to marriage" within the meaning of former N.D.C.C. § 14-02.4-12. [¶ 61] In awarding summary judgment against the Kippens, the district court discussed our definition of cohabitation in Baker v. Baker, 1997 ND 135, ¶ 13, 566 N.W.2d 806. In Baker, we stated cohabitation includes, "The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations."
[¶ 15] I have signed the majority opinion, writing separately to note that this Court has previously discussed evidentiary factors for the trial court to consider when determining whether cohabitating is the functional equivalent or is analogous to marriage. See Baker v. Baker, 1997 ND 135, ¶¶ 12–15, 566 N.W.2d 806 (discussing other courts that have employed evidentiary factors to determine whether to end spousal support). Assuming that Scott Klein will waste no time in again moving to terminate spousal support once a full year has passed after the statute has become effective, the district court should consider the non-exclusive factors discussed in Baker, as well as any other relevant factors.
We further explained that “ ‘[t]he attributes of spousal support, rather than property division, are indicated if the divorce payments are directed to be monthly, unsecured, and terminable upon designated events, like death or remarriage of the obligee.’ ” Leverson, at ¶ 12 (quoting Baker v. Baker, 1997 ND 135, ¶ 8, 566 N.W.2d 806).See also Lipp, 355 N.W.2d at 821 (“To be spousal support a provision in a divorce judgment must effectuate the purposes of spousal support, such as rehabilitation or maintenance.”). [¶ 31] Here the trial court found that the obligations Kramer sought to modify were spousal support; that there was no disparity in the property distribution between the parties to justify treating the obligations as property settlement payments; that the disparity was in the parties' incomes at the time the separation agreement was negotiated; and that the spousal support, health insurance and non-covered medical cost payments were to equalize the disparity in income, not property. This Court previously held that the parties' separation agreement was not unconscionable. Kramer, 2006 ND 64, ¶ 15, 711 N.W.2d 164.
”); Konzelman v. Konzelman, 158 N.J. 185, 729 A.2d 7, 16 (1999) (“Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage.”); Baker v. Baker, 1997 N.D. 135, ¶ 13, 566 N.W.2d 806, 811 (defining “cohabitation” as “an informal marital relationship” (internal quotation marks omitted)); Perri v. Perri, 79 Ohio App.3d 845, 608 N.E.2d 790, 795 (1992) (defining “cohabitation” as the assumption of “obligations equivalent to those arising from a ceremonial marriage”); In re Marriage of Edwards, 73 Or.App. 272, 698 P.2d 542, 547 (1985) (“ ‘[C]ohabitation’ ... refers to a domestic arrangement between a man and woman who are not married to each other, but who live as husband and wife....”). 2.
1980) ("Cohabitation . . . includes many facets of married life in addition to sexual relations."); In re Marriage of Thornton, 867 N.E.2d 102, 109 (Ill. App. Ct. 2007) (defining cohabitation as "a de facto husband and wife relationship with a third party"); Gordon v. Gordon, 675 A.2d 540, 547 (Md. 1996) ("[T]he ordinary definition of 'cohabitation' . . . connotes mutual assumption of the duties and obligations associated with marriage."); Konzelman v. Konzelman, 729 A.2d 7, 16 (N.J. 1999) ("Cohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage."); Baker v. Baker, 1997 N.D. 135, ¶ 13, 566 N.W.2d 806, 811 (defining "cohabitation" as "an informal marital relationship" (internal quotation marks omitted)); Perri v. Perri, 608 N.E.2d 790, 795 (Ohio Ct. App. 1992) (defining "cohabitation" as the assumption of "obligations equivalent to those arising from a ceremonial marriage"); In re Marriage of Edwards, 698 P.2d 542, 547 (Or. Ct. App. 1985) ("'[C]ohabitation' . . . refers to a domestic arrangement between a man and woman who are not married to each other, but who live as husband and wife . . . ."). ¶22 The standard applied by the court of appeals was fully consistent with this approach.
While the general premise of Walker holds true, such preordained contingencies typically trigger the termination of spousal support, not its reduction. See, e.g., Walker, at ¶ 5 (eliminating husbands support obligation at his retirement or 65th birthday); Baker v. Baker, 1997 ND 135, ¶ 5, 566 N.W.2d 806 (eliminating wife's support obligation if ex-husband remarried or cohabitated in an informal marital relationship). In cases such as this, where a contingency triggers reduction of a support obligation rather than its termination, the necessarily speculative nature of guessing when the event will occur, what the parties' economic circumstances will be at the time the event occurs and what impacts will result from the event dampers our preference towards preordained contingency modifications.
The court ordered James to continue "to pay Marjorie spousal support in the amount of $700 per month until the effective date of James' retirement, or until the month of James' sixty-fifth (65) birthday, which ever [sic] occurs first." We generally prefer that a trial court spell out preordained contingency limits on spousal support in a divorce decree rather than invite further litigation by unconditionally decreeing support for life. See, e.g., Baker v. Baker, 1997 ND 135, ¶ 11 n. 1, 566 N.W.2d 806. We have also approved termination of temporary spousal support payments upon the supporting spouse's retirement, when the disadvantaged spouse has been awarded a portion of the supporting spouse's monthly retirement benefits.