Marquardt v. Marquardt by Rempfer

396 N.W.2d 753, 55 U.S.L.W. 2371, 1986 S.D. LEXIS 351

• Court: South Dakota Supreme Court
• Decided: November 26, 1986
• Docket: 14495
• Status: Published

Opinions

MORGAN, Justice.

In 1981, Lloyd Marquardt, Jr., (Lloyd) and Betty Marquardt (Betty) were granted a decree of divorce which incorporated by reference a support agreement. The decree of divorce provided for the payment of alimony in the amount of $200 per month from Lloyd to Betty. The alimony was to “terminate upon the death of either Plaintiff or Defendant.” On August 13, 1983, Betty was remarried and upon learning of this remarriage Lloyd moved the trial court for a termination of the alimony support. The trial court denied Lloyd's motion to terminate and he appeals.

It is Lloyd’s lone contention that the trial court abused its discretion by not terminating the alimony payments effective as of the date of Betty's remarriage. Lloyd urges that the trial court erred when it considered Betty’s remarriage as “simply one of the factors the Court must consider in determining whether a modification of alimony is deserving.” We agree with this contention and reverse and remand.

Initially, we note that the trial court has the general power to modify a decree for alimony even if that decree is based upon an agreement entered into by the parties. Shoop v. Shoop, 58 S.D. 593, 237 N.W. 904 (1931). “In a proceeding for modification of alimony [the] burden of proving a change in circumstances sufficient to warrant modification is upon the party seeking modification.” Rousseau v. Gesinger, 330 N.W.2d 522, 525 (S.D.1983). The operative question, then, is whether Lloyd met his burden in proving a change of circumstances.

“Proof that the spouse receiving spousal support payments has remarried establishes a prima facie case requiring the court to terminate the support payments unless there are extraordinary circumstances which justify continuance of the payments.” Bauer v. Bauer, 356 N.W.2d 897, 898 (N.D.1984). See Nugent v. Nugent, 152 N.W.2d 323 (N.D.1967); Wolter v. Wolter, 183 Neb. 160, 158 N.W.2d 616 (1968). But cf. Carruth v. Carruth, 212 Neb. 124, 321 N.W.2d 912 (1982). We agree that remarriage establishes a prima facie case for termination of alimony payments. “The general rule in Iowa, and elsewhere, is that while the subsequent remarriage of a spouse does not result in automatic termination of an alimony obligation, it shifts the burden to the recipient to show that extraordinary circumstances exist which require the continuation of the alimony payments.” In re Marriage of Shima, 360 N.W.2d 827, 828 (Iowa 1985).

While we recognize that in some states remarriage is grounds for automatic termination of alimony benefits,

* we feel the more judicious course is to hold that remarriage establishes a prima facie showing supporting termination. Sound public policy abounds to support this holding. South Dakota law places a statutory duty on one spouse to support the other. SDCL 25-7-1. As has been said by a number of other courts, it is “illogical and unreasonable” that a spouse should receive support from a present spouse and a former spouse at the same time. Marriage of Shima, supra; Wolter, supra.

In Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980), the parties failed to enter into an agreement for support and the trial court ordered support of $200 per month under authority of SDCL 25-4-41. In Hanks, however, the trial court failed to provide for termination of the payments upon the spouse’s remarriage. As a result, “we modified] the alimony provision to provide for its continuation only until the remarriage of [spouse].” Id. at 528. We obviously recognized the policy supporting this holding, although it was not specifically set out.

Because the trial court considered remarriage as “simply one of the factors the court must consider” we reverse and remand for a determination of whether Betty can show the extraordinary circumstances which must exist prior to the continuation of the alimony payments.

WUEST, C.J., and HERTZ, Circuit Judge, acting as a Supreme Court Justice, concur. HENDERSON, J., concurs specially. GERKEN, Circuit Judge, dissents. GERKEN, Circuit Judge, sitting for FOSHEIM, J., disqualified. SABERS, J., not having been a member of the Court at the time this action was submitted to the Court, did not participate.

See, e.g., Voyles v. Voyles, 644 P.2d 847 (Alaska 1982); N.Y.Dom.Rel.Law § 248 (McKinney 1977).