Brakke v. Brakke, s. 940220

• Decision Date: 20 December 1994
• Docket Number: 940221,Nos. 940220,s. 940220
• Citation: 525 N.W.2d 687
• Parties: Linda P. BRAKKE, Plaintiff and Appellee, v. Timothy A. BRAKKE, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 687

525 N.W.2d 687

Linda P. BRAKKE, Plaintiff and Appellee, v. Timothy A. BRAKKE, Defendant and Appellant.

Civ. Nos. 940220, 940221.

Supreme Court of North Dakota.

Dec. 20, 1994.

Mark R. Fraase, of Wegner, Fraase, Nordeng, Johnson & Ramstad, Fargo, for plaintiff and appellee.

Richard Henderson, of Nilles, Hansen & Davies, Ltd., Fargo, for defendant and appellant.

VANDE WALLE, Chief Justice.

Timothy Brakke appealed from an amended judgment ordering Timothy's former spouse, Linda Brakke, to pay future, but not retroactive, child support for their daughter, Alanna. Timothy also appealed from an order denying his request for relief from paying court-ordered child support after November 1991 under a prior judgment. We hold Timothy is not entitled to receive retroactive support payments from Linda. We also hold the trial court abused its discretion in denying Timothy's motion for relief from his child support obligation under the prior judgment because it was not timely.

Timothy and Linda were divorced in November 1981. The original decree was amended several times. A Third Amended Judgment was entered on September 11, 1991, upon a stipulated agreement between Timothy and Linda. It awarded physical custody of Alanna to Linda during the school year and to Timothy during the summer months and extended school-vacation breaks. It also required Timothy to pay Linda $400 per month for Alanna's support, commencing in September 1991. Timothy paid child support under that judgment for September and October 1991.

In November 1991, Alanna, who was then living with her mother in Pennsylvania, came to North Dakota during a school-vacation break to visit Timothy. Alanna never returned to Pennsylvania to reside with her mother, and from November 1991 to the present has remained in Timothy's actual physical custody. Linda, when told Alanna desired to stay in North Dakota rather than return to Pennsylvania, was extremely upset and initially demanded that Alanna return to reside with her. However, within a few days, after the parties discussed the situation, Linda acquiesced in Alanna's decision to reside with her father. Timothy has not made child support payments to Linda since October 1991.

On March 16, 1994, Timothy moved to amend the 1991 judgment, seeking primary physical custody of Alanna and reasonable child support from Linda, retroactive to November 1991. The court entered a Fourth Amended Judgment on June 3, 1994, granting Timothy's request for primary physical custody of Alanna and ordering Linda to pay child support of $700 per month, beginning in March 1994. However, the court denied Timothy's request for retroactive child support from Linda.

Prior to the court's entry of the 1994 judgment, Timothy filed a motion for relief from the 1991 judgment under Rule 60(b)(vi), N.D.R.Civ.P., requesting the court to vacate his support obligation under that judgment, retroactive to November 1991. Timothy's request was based on his actual physical custody of Alanna since November 1991, during which time he provided most of Alanna's financial needs. The trial court denied Timothy's motion for relief from the 1991 judgment, ruling that his motion was not timely.

Relief is available under Rule 60(b)(vi), N.D.R.Civ.P., when the movant demonstrates it would be unjust to enforce a court order or judgment. The rule provides an ultimate safety valve to avoid enforcement of a judgment or order when that is necessary to accomplish justice. Crawford v. Crawford, 524 N.W.2d 833 (N.D.1994); Kinsella v. Kinsella, 181 N.W.2d 764 (N.D.1970).

A motion under Rule 60(b), N.D.R.Civ.P., must be made within a reasonable time. The determination of whether a motion has been timely filed is within the discretion of the trial court and will not be overturned on appeal unless the trial court abuses its discretion. See Matter of Estate of Hansen, 458 N.W.2d 264 (N.D.1990). What constitutes a reasonable time to bring a motion for relief varies from case to case and must be determined in each instance from the facts before the court. Suburban Sales v. District Court of Ramsey County, 290 N.W.2d 247 (N.D.1980).

Alanna was in Timothy's actual physical custody for about two and one-half years before Timothy requested relief from his support obligation under the 1991 judgment. However, Timothy has presented unique and undisputed facts which explain his delay in requesting relief and which lead us to conclude the trial court abused its discretion in denying relief on the ground that Timothy's request was not timely.

It is undisputed that Timothy has had actual physical custody of Alanna since November 1991 and that he provided for most of her financial needs during that time. Linda acquiesced in the change of custody, and she made no demand for or attempt to collect support payments until Timothy filed his motion in March 1994 requesting primary custody of Alanna and child support payments from Linda. The record also reveals that when the parties agreed with Alanna's decision to remain in North Dakota with her father, Linda pleaded with Timothy to not request child support payments from her. Linda told Timothy she was pregnant and suffering additional stresses caused by problems in her current marriage and from the effects of severe diabetes. Timothy says for those reasons he decided it would be in everyone's best interests that he not start legal action at that time to secure a formal change in the divorce decree. Timothy and Linda attempted to negotiate a stipulated agreement regarding custody and support. When those negotiations failed, Timothy filed his 1994 motions with the district court.

Timothy relies on two analogous cases. In Karypis v. Karypis, 458 N.W.2d 129 (Minn.App.1990), the minor children of the parties left the custodial parent's home and lived for several years with the non-custodial parent who was under a court-ordered child support obligation. He ceased making child...