Nieuwenhuis v. Nieuwenhuis, 20130394.

Decision Date17 July 2014
Docket NumberNo. 20130394.,20130394.
PartiesBrian K. NIEUWENHUIS, Plaintiff and Appellant v. Lora N. NIEUWENHUIS, Defendant and Appellee.
CourtNorth Dakota Supreme Court

851 N.W.2d 130
2014 ND 145

Brian K. NIEUWENHUIS, Plaintiff and Appellant
v.
Lora N. NIEUWENHUIS, Defendant and Appellee.

No. 20130394.

Supreme Court of North Dakota.

July 17, 2014.


[851 N.W.2d 132]


Thomas M. Jackson, Bismarck, ND, for plaintiff and appellant.

James M. Cailao, Bismarck, ND, for defendant and appellee.


SANDSTROM, Justice.

[¶ 1] Brian Nieuwenhuis appeals from an amended divorce judgment awarding Lora Nieuwenhuis attorney's fees and determining her obligation to help with mortgage payments is satisfied. We reverse and remand, concluding the district court abused its discretion in partially vacating the original divorce judgment.

I

[¶ 2] The parties married in 1994. They were married for 15 years and have two minor children. Brian Nieuwenhuis owns an independent insurance agency through Farmer's Union Insurance, and Lora Nieuwenhuis is a school teacher. In 2009, they entered into a divorce stipulation under which they agreed they would continue to occupy their residence jointly, with their minor children, until they were able to sell their home. Pending the home sale, the parties agreed Lora Nieuwenhuis would pay $1,600 per month for her share of the $3,810 in monthly bills and expenses for the home, while Brian Nieuwenhuis would be responsible for the remainder. The stipulation further provided he would pay, among other things, her car payment, her automobile insurance, health insurance for the minor children, dental expenses, school lunches and activities for the children, piano lessons, and one-half of major clothing purchases for the children. She agreed to pay for any deductibles or other out-of-pocket expenses associated with her medical or vision expenditures; her cell phone; all maintenance, repairs, gas and oil for her vehicle; all household groceries and supplies as a tradeoff for her payment of a lesser share of the regular monthly bills; and any entertainment or transportation costs associated with out-of-town travel while the children were with her. The agreement provided that child support would be suspended until the home had been sold and the parties were living separately. After the home sold, Lora Nieuwenhuis was to have primary residential responsibility during the school year. Brian Nieuwenhuis was to have primary residential responsibility during the summer, and he was to pay $1,033 per month in child support. The agreement also provided that each party would indemnify the other for reasonable attorney's fees and costs associated with enforcing the agreement. The court entered a divorce judgment incorporating the terms of the parties' stipulated settlement agreement.

[¶ 3] In April 2012, Brian Nieuwenhuis moved to enforce the judgment, to find Lora Nieuwenhuis in contempt, and for attorney's fees and sanctions for her alleged failure to pay her share of the family's expenses, including the home bills, claiming she was $12,400 behind in payments. In response, she moved for relief from the judgment, asking, among other things, that the judgment be amended so she would be required to pay no more than $800.00 per month, and also asking that he be required to pay her between $300 and $400 for three months.

[¶ 4] After an evidentiary hearing, the district court granted her Rule 60(b) motion, determining that he “prepared a property stipulation and parenting plan which [Lora Nieuwenhuis] did execute but only under the direction of [Brian] who had previously established his intimidating

[851 N.W.2d 133]

business decision conduct.” The court concluded the stipulation of the parties placing primary residential responsibility with her for nine months of the year and then suspending all child support payments by him was not consistent with the child support guidelines. The court vacated the portion of the judgment suspending child support payments and awarded Lora Nieuwenhuis “temporary rehabilitative child support.” The court also awarded her reasonable attorney's fees. The court concluded, “Said Amended Judgment shall incorporate all of the provisions of the agreement of the parties not previously amended by order entered herein.”

[¶ 5] Brian Nieuwenhuis moved for amended or additional findings and, in the alternative, for a “new trial,” arguing some of the findings were not consistent with the evidence. He informed the court that the parties had verbally agreed to sell the marital home and that a closing date was expected in the near future. After another hearing, the court found the marital residence had been sold since the initial hearing but again granted her motion to vacate the judgment, finding the settlement agreement was not the result of her knowing and consensual free will and the agreement in large part resulted from duress placed upon her. The court also vacated the portion of the judgment regarding her payment obligations:

[T]he payment of $1,600 per month by [Lora] based upon her earned income represented 53 percent of [her] net monthly income and exceeded a reasonable percentage for [her] contribution. The Judgment entered herein is herewith amended so as to delete any obligation on the part of [Lora] for reimbursement to [Brian] for said alleged sum of $16,230.

[¶ 6] The court ordered Brian Nieuwenhuis to pay child support in the amount of $1,017 per month and ordered Lora Nieuwenhuis to file, within 10 days, a statement of attorney's fees and court costs incurred. The court entered an amended judgment consistent with the order, including an award of reasonable attorney's fees to her, which the court later set at $5,000.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Brian Nieuwenhuis's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28–27–01.

II

[¶ 8] Brian Nieuwenhuis argues the district court abused its discretion in granting Lora Nieuwenhuis's motion to amend the judgment under N.D.R.Civ.P. 60(b).

[¶ 9] Lora Nieuwenhuis requested relief from the original divorce judgment under N.D.R.Civ.P. 60(b)(6), which provides:

Grounds for Relief from a Final Judgment or Order. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

....

(6) any other reason that justifies relief.

[¶ 10] The standard of review for motions under Rule 60(b) is abuse of discretion:

A motion under subdivision (vi) of Rule 60(b), ... is left to the sound discretion of the trial court and will not be disturbed on appeal unless the court abused that discretion. [State Bank of Burleigh Cnty. Trust Co. v.] Patten, 357 N.W.2d [239,] 242 [ (N.D.1984) ]; [

[851 N.W.2d 134]

State v.] Red Arrow [Towbar Sales Co.], 298 N.W.2d [514,] 516 [ (N.D.1980) ]; In re Estate of Jensen, 162 N.W.2d 861, 870 (N.D.1968)....

An abuse of discretion by the trial court is never assumed and must be affirmatively established. Dvorak v. Dvorak, 329 N.W.2d 868, 870 (N.D.1983); Avco Financial Services v. Schroeder, 318 N.W.2d 910, 912 (N.D.1982). An abuse of discretion is defined as an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court.

First Nat'l Bank of Crosby v. Bjorgen, 389 N.W.2d 789, 794 (N.D.1986).


[¶ 11] Prior to the home sale in this case, Lora Nieuwenhuis was to pay $1,600 per month for her share of the $3,810 in monthly bills and expenses for the home, while Brian Nieuwenhuis was responsible for the remainder. The district court granted her motion to vacate and eliminated the amounts she owed from these payment obligations:

[T]he payment of $1,600 per month by [Lora] based upon her earned income represented 53 percent of [her] net monthly income and exceeded a reasonable percentage for [her] contribution. The Judgment entered herein is herewith amended so as to delete any obligation on the part of [Lora] for reimbursement to [Brian] for said alleged sum of $16,230.

[¶ 12] “When a judgment has been rendered and later set aside or vacated, the matter stands precisely as if there had been no judgment.” 47 Am.Jur.2d Judgments § 714 (citing Flavell v. Ripley, 247 Ill.App.3d 842, 187 Ill.Dec. 621, 617 N.E.2d 1342 (2d Dist.1993); Nichols v. Nichols, 98 N.M. 322, 648 P.2d 780 (1982); Pringle v. Moon, 158 S.W.3d 607 (Tex.App.Fort Worth 2005)). “If the trial court order truly vacated the original judgment, nothing remained of the judgment for the Smiths to challenge.” Nielson v. Patterson, 204 Ariz. 530, 533, 65 P.3d 911, 914 (2003).

[¶ 13] North Dakota divorce cases have followed the same line of reasoning. Previously, when this Court has vacated divorce judgments, even if only in part, the Court has required that all interrelated property and support provisions be vacated in their entirety, leaving in place only the decree of divorce. See Galloway v. Galloway, 281 N.W.2d 804, 807 (N.D.1979) (“That part of the judgment which relates to the contractual matters of custody, property division and alimony is vacated.”), and Peterson v. Peterson, 555 N.W.2d 359, 360 (N.D.1996) (trial court vacated all parts of the judgment except the decree of divorce, and after a hearing the court redetermined property division, custody, and child support). Because the divorce itself was left intact in these cases, they appear inconsistent with the general rule that “the matter stands precisely as if there had been no judgment.” 47 Am.Jur.2d Judgments § 714. Nevertheless, an exception in divorce cases makes sense in light of the unique nature of these proceedings. See Hoellinger v. Hoellinger, 38 N.D. 636, 166 N.W. 519, 521 (1918) (duty rests upon the court to, if possible, dispose of the case without affecting the judgment of divorce); Galloway v. Galloway, 281 N.W.2d 804, 807 (N.D.1979) (“[W]e find no reason why the divorce itself should be vacated.... That part of the judgment which relates to the contractual matters of custody, property division and alimony is vacated.”). It would make little...

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