Haroldson v. Haroldson, 20110149.

• Decision Date: 27 February 2012
• Docket Number: No. 20110149.,20110149.
• Citation: 2012 ND 44,813 N.W.2d 539
• Parties: Marty R. HAROLDSON, Plaintiff, Appellant and Cross–Appellee, v. Heidi S. HAROLDSON, n/k/a Heidi S. Klein, Defendant, Appellee and Cross–Appellant.
• Court: North Dakota Supreme Court

813 N.W.2d 539

2012 ND 44

Marty R. HAROLDSON, Plaintiff, Appellant and Cross–Appellee,

v.Heidi S. HAROLDSON, n/k/a Heidi S. Klein, Defendant, Appellee and Cross–Appellant.

No. 20110149.

Supreme Court of North Dakota.

Feb. 27, 2012.

Daniel Harry Oster, Bismarck, N.D., for plaintiff, appellant and cross-appellee.

Monte Lane Rogneby, Bismarck, N.D., for defendant, appellee and cross-appellant.

MARING, Justice.

[¶ 1] Marty Haroldson appeals and Heidi Haroldson, now known as Heidi Klein, cross-appeals from an amended judgment modifying their stipulated divorce judgment. The district court denied the parties' cross-motions to modify primary residential responsibility of their children, but ruled the parties' stipulated judgment for joint equal residential responsibility violated public policy and was void, because that provision was entered to allow the parties to avoid child support obligations. The court vacated the provision for equal residential responsibility and decided it was in the children's best interests for Klein to have primary residential responsibility. We conclude the parties' cross-motions for modification of residential responsibility authorized the district court to decide primary residential responsibility, but the court's findings on the best interests of the children are inadequate to understand the rationale for the court's decision. We affirm in part, reverse in part, and remand for findings on the best interests of the children.

I

[¶ 2] In June 2008, Haroldson and Klein stipulated to a divorce judgment granting them joint residential responsibility for their three minor children, which required the children to spend an equal amount of time with each parent. The stipulated judgment said the parties may agree between themselves to vary the schedules to accomplish their overall goal of sharing child rearing responsibilities. The judgment also ordered Klein to pay Haroldson $204 per month in child support under the offset provisions for equal physical custody in N.D. Admin. Code § 75–02–04.1–08.2.

[¶ 3] In May 2010, less than two years after entry of the stipulated judgment, Klein moved to amend the judgment under N.D.C.C. § 14–09–06.6(3)(c), which permits motions to modify primary residential responsibility within two years of a prior order if the court finds primary residential responsibility for the child has changed to the other parent for longer than six months. Klein claimed the parenting plan for equal custody of the children was never followed, and she had always had the children a majority of the time. In July 2010, the district court decided Klein had established a prima facie case for modification of primary residential responsibility. In September 2010, more than two years after entry of the stipulated judgment, Haroldson moved to modify primary residential responsibility of the children under N.D.C.C. § 14–09–06.6(6), which permits motions to modify primary residential responsibility after the two year period if the court finds a material change in circumstances and modification is necessary to serve the best interests of the children.

[¶ 4] After an evidentiary hearing on the parties' cross-motions, the district court denied Klein's motion for primary residential responsibility of the children, concluding she failed to establish primary residential responsibility for the children had changed to her for longer than six months under N.D.C.C. § 14–09–06.6(3)(c). The court also decided Haroldson had shown a material change in circumstances under N.D.C.C. § 14–09–06.6(6), because all three children were now in school, while only one child was in school when the parties divorced, and Klein was now engaged and living with her fiancé. However, the court found Haroldson had not shown that awarding him primary residentialresponsibility would be in the children's best interests.

[¶ 5] The district court nevertheless concluded the provision of the stipulated judgment granting the parents joint residential responsibility and requiring the children to spend equal time with each parent was contrary to public policy and was void, because the court decided the parents agreed to that provision to allow them to avoid child support obligations. After concluding the equal custody provision was void, the court vacated that provision and ruled it was in the children's best interests for Klein to have primary residential responsibility. The court ordered Haroldson to pay Klein $1,097 per month in child support and thereafter denied Haroldson's request for a stay pending appeal.

II

[¶ 6] Haroldson claims the unambiguous stipulated judgment precludes modification of primary residential responsibility. Under our law, parents may move to modify primary residential responsibility within the framework of N.D.C.C. § 14–09–06.6. This Court has recognized that any stipulated judgment precluding modification of primary responsibility violates public policy. Zeller v. Zeller, 2002 ND 35, ¶¶ 17–18, 640 N.W.2d 53. To the extent Haroldson claims the stipulated judgment precludes any modification of primary residential responsibility, we reject his claim.

[¶ 7] Haroldson argues the district court erred in deciding the equal custody language in the stipulated judgment violated public policy because the parties underlying agreement purported to allow them to avoid child support. He claims the court erred in considering parol evidence and settlement discussions to unilaterally modify the stipulated judgment.

[¶ 8] “An agreement purporting to relieve an obligor of any current or future duty of child support is void and may not be enforced.” N.D.C.C. § 14–09–09.32. We have recognized that the language used in a divorce judgment regarding the allocation of primary residential responsibility, not the parties' actual practice, controls whether the parties have equal physical custody exactly fifty percent of the time under the offset provisions of the child support guidelines in N.D. Admin. Code § 75–02–04.1–08.2. Thornton v. Klose, 2010 ND 141, ¶ 23, 785 N.W.2d 891;Serr v. Serr, 2008 ND 229, ¶¶ 12–13, 758 N.W.2d 739;Serr v. Serr, 2008 ND 56, ¶ 22, 746 N.W.2d 416;Boumont v. Boumont, 2005 ND 20, ¶ 9, 691 N.W.2d 278. We said “ ‘the purpose behind N.D. Admin. Code § 75–02–04.1–08.2 ... was to “address situations in which people were using equal physical custody to avoid the payment of child support.” ’ ” Thornton, at ¶ 22 (quoting Boumont, at ¶ 13). We adopted a bright-line approach as a matter of public policy to preclude divorcing parents from using legal fictions to bargain away child support and circumvent a child's right to the appropriate amount of support under the guidelines. Thornton, at ¶ 22. We explained the public policy underpinnings were based on the principle that the right to support belongs to the child and the custodial parent has only a representative right to collect support on behalf of the child. Id. As a matter of public policy, we take a dim view of agreements purporting to allow parties to avoid or limit their child support obligations. Lee v. Lee, 2005 ND 129, ¶ 8, 699 N.W.2d 842.

[¶ 9] Here, however, we do not decide this case on the public policy rationale employed by the district court, because we conclude the parties' cross-motions for modification of their joint and equal residential responsibility under N.D.C.C. § 14–09–06.6 and the circumstances of this case authorized the district court to fully resolve primary residential responsibility.

[¶ 10] Section 14–09–06.6, N.D.C.C., describes limitations on postjudgment modifications of primary residential responsibility and provides, in part:

1. Unless agreed to in writing by the parties, or if included in the parenting plan, no motion for an order to modify primary residential responsibility may be made earlier than two years after the date of entry of an order establishing primary residential responsibility, except in accordance with subsection 3.

2. Unless agreed to in writing by the parties, or if included in the parenting plan, if a motion for modification has been disposed of upon its merits, no subsequent motion may be filed within two years of disposition of the prior motion, except in accordance with subsection 5.

3. The time limitation in subsections 1 and 2 does not apply if the court finds:

....

c. The primary residential responsibility for the child has changed to the other parent for longer than six months.

4. A party seeking modification of an order concerning primary residential responsibility shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentiary hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. The court shall set a date for an evidentiary hearing only if a prima facie case is established.

5. The court may not modify the primary residential responsibility within the two-year period following the date of entry of an order establishing primary residential responsibility unless the court finds the modification is necessary to serve the best interest of the child and:

....

c. The residential responsibility for the child has changed to the other parent for longer than six months.

6. The court may modify the primary residential responsibility after the two-year period following the date of entry of an order establishing primary residential responsibility if the court finds:

a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and

b. The modification is necessary to serve the best interest of the child.

[¶ 11] Here, less than two years after entry of the stipulated judgment,...