## Facts

- Duane and Loretta Cermak married in 1964 and divorced in 1995.
- An amended divorce judgment ordered Duane to pay Loretta permanent spousal support of $600 per month, terminating only upon Loretta’s death or remarriage.
- During the divorce proceedings, Duane requested (and did not obtain) a provision terminating support upon Loretta’s cohabitation.
- After the divorce, Loretta sold property awarded to her and began openly living with a man; they did not marry.
- Duane moved to terminate or reduce support, arguing cohabitation was the functional equivalent of remarriage and reduced Loretta’s need.
- Loretta opposed modification and cross-moved for attorney’s fees and costs.
- The district court denied Duane’s modification motion and denied Loretta’s fee request.

## Issues

1. Whether spousal support terminates when the recipient openly cohabits with another person, where the judgment provides termination only upon death or remarriage and contains no cohabitation clause.
2. Whether the payor proved a material change in circumstances warranting reduction of spousal support based on the recipient’s cohabitation and financial developments.
3. Whether the district court abused its discretion by denying the recipient’s request for attorney’s fees and costs in the modification proceeding.

## Decision

- The Supreme Court of North Dakota affirmed the denial of termination of spousal support.
- The court held that a live-in cohabiting relationship is not a remarriage, and the original judgment’s termination conditions (death or remarriage) controlled.
- The court affirmed the denial of a reduction, concluding the finding that the reasons supporting the original award still existed was not clearly erroneous.
- The court affirmed the denial of attorney’s fees, holding the district court did not abuse its discretion.

## Legal Principles

- Cohabitation is legally distinct from remarriage; absent an express cohabitation-termination provision, cohabitation does not automatically end spousal support.
- Modification of spousal support requires proof of a material change in circumstances; cohabitation may be relevant but does not, by itself, establish decreased need.
- Appellate review of a trial court’s change-of-circumstances findings is for clear error; fee awards in post-divorce proceedings are reviewed for abuse of discretion.
- A court will not use a modification proceeding to effectively rewrite a divorce judgment to add a termination condition previously requested and omitted.

## Conclusion

The court affirmed the existing support order and fee ruling, holding that cohabitation alone did not trigger termination where the decree limited termination to death or remarriage, and that Duane failed to prove a material change in circumstances justifying a reduction.


Cermak v. Cermak, 569 N.W.2d 280 (N.D. 1997)