Orvedal v. Orvedal, 20030043.

• Decision Date: 23 September 2003
• Docket Number: No. 20030043.,20030043.
• Citation: 669 N.W.2d 89,2003 ND 145
• Parties: Laurie Lee ORVEDAL, Plaintiff and Appellee, v. Jeffrey Ray ORVEDAL, Defendant and Appellant.
• Court: North Dakota Supreme Court

669 N.W.2d 89

2003 ND 145

Laurie Lee ORVEDAL, Plaintiff and Appellee, v. Jeffrey Ray ORVEDAL, Defendant and Appellant.

No. 20030043.

Supreme Court of North Dakota.

September 23, 2003.

Patti J. Jensen, Galstad, Jensen & McCann, PA, East Grand Forks, MN, for plaintiff and appellee.

James D. Hovey, Pearson Christensen, Grand Forks, for defendant and appellant.

MARING, Justice.

[¶ 1] Jeffrey Orvedal appealed from an amended divorce judgment clarifying the visitation provisions in the original decree and modifying Jeffrey's support obligation. We hold the court did not err in clarifying the visitation provisions and the visitation schedule specified by the court is not clearly erroneous. We further conclude the court's calculation of Jeffrey's child support obligation is in accordance with the child support guidelines and is not clearly erroneous. We affirm and remand for the trial court to consider Laurie Orvedal's request for attorney fees on appeal.

I

[¶ 2] Jeffrey and Laurie Orvedal were married in August 1985, and they were divorced in March 1999. The divorce decree awarded them joint physical custody of their son, born September 23, 1988, with the following specific provisions:

Laurie and Jeff shall have joint physical custody ... as follows:

(a) [The child] shall reside with Laurie during the school year, with liberal visitation by Jeff as agreed to between the parties.

(b) [The child] shall reside with Jeff during the summer break, with liberal visitation by Laurie as agreed to between the parties.

Until November 2001, the parties' son had visitation with his father during the school year almost every weekend. Laurie then notified Jeffrey she would allow their son to have only two weekend visitations per month with Jeffrey during the school year. Jeffrey filed a motion asking the trial court to enforce the divorce decree. Laurie subsequently filed a motion requesting the court to modify custody but later withdrew that motion. After a hearing, the court determined the visitation provisions were ambiguous, and it clarified the original decree. Relevant to this appeal, the court specifically set the visitation schedule to give Jeffrey two weekend visitations per month during the school year and an additional eight-hour visitation during one of the remaining Saturdays per month. Upon Laurie's request, the court also modified Jeffrey's child support obligation, and Jeffrey appealed.

II

[¶ 3] Jeffrey asserts the trial court erred in modifying the visitation provisions without first finding there was a substantial change of circumstances warranting a modification.

[¶ 4] However, the trial court decided to clarify rather than modify the original visitation provisions. When a judgment is vague, uncertain, or ambiguous, the court may clarify the judgment. Anderson v. Anderson, 522 N.W.2d 476, 478 (N.D.1994). When a divorce decree fails to specify some particulars and uncertainties in the decree arise from subsequent events, clarification of the decree is often appropriate. Kostelecky v. Kostelecky, 537 N.W.2d 551, 554 (N.D.1995). The trial court concluded the original judgment was ambiguous with regard to the visitation order. The court clarified the intent of the judgment and, in accordance with the clarification, specified a structured visitation schedule. The court made the following relevant findings and conclusions:

In considering the language of the divorce judgment relating to physical custody of [the child], I conclude a part of it is ambiguous. It provides for joint physical custody of [the child]. The judgment then proceeds to describe the implementation of that joint physical custody of [the child]. It provides for an alternating arrangement for physical custody. That is not ambiguous. However, it provides for, "liberal visitation... as agreed to between the parties". From this phrasing Jeff maintains that it meant that that agreement was to infer that the current pattern of visitation at the time of the divorce was to be the defined agreement for visitation, whereas Laurie maintains that this phrase meant as agreed upon from time to time. This constitutes an ambiguity that requires clarification by this court.

....

[I]t is this court's determination that the phrase "as agreed to between the parties" contained in both locations in paragraph 3 of the judgment did not infer or otherwise mandate then or now an "every weekend" scenario as Jeff maintains.... [I]t was never this court's recognition or understanding in accepting this stipulation that the phrase "as agreed upon between the parties" was subject or otherwise limited to a locked in term or frequency of visitation as Jeff now suggests. Based upon all of the above, this court concludes that the phrase "as agreed to between the parties" was to be left for the parties to address from time to time as the circumstances changed, as did the best interest of [the child].

....

Jeff is entitled to liberal visitation within the parameters of that visitation also being reasonable and in [the child's best] interests. It is however obvious and this court finds that the parties are unable to agree upon what should be the appropriate schedule of visitation while [the child] resides with his mother during the school term, and when [the child] resides with his father during the summer break. Consequently, this court for reasons set forth below concludes and finds that the following visitation schedule at least in the near future and current circumstances serves the best interests of [the child] while at the same time providing for liberal, yet reasonable visitation for the parties when the other party has custody.

The visitation schedule is very detailed, but in essence, the court structured the order to give Jeffrey visitation of two weekends per month with his son during the school year and one eight-hour visitation on one other Saturday per month.

[¶ 5] In Greenwood v. Greenwood, 1999 ND 126, ¶ 8, 596 N.W.2d 317, we explained our standard for reviewing a lower court's clarification of a prior judgment:

"Interpretation of a judgment is a question of law, and an unambiguous judgment may not be modified, enlarged, restricted, or diminished." "[T]he question whether a judgment is ambiguous is a question of law." "There is an ambiguity when language can be reasonably construed as having at least two alternative meanings." "If the same trial judge clarifies an original judgment, we afford the judge's clarification considerable deference."

(Citations omitted.)

[¶ 6] We agree with the trial court that the visitation provisions were ambiguous and subject to clarification by the court. The trial judge who clarified the original judgment was the same judge who entered that judgment in the original divorce proceedings. Because the same judge who entered the original judgment also clarified it, we afford the clarification considerable deference. Anderson, 522 N.W.2d at 478. The original judgment provided that while the child resided with his mother during the school year the father would receive "liberal visitation." Initially, the parties were able to agree on a liberal visitation schedule, but with the passage of time they were unable to agree what constituted liberal visitation. Conflict over visitation can pose harm to the emotional welfare of a child caught in the middle. Reinecke v. Griffeth, 533 N.W.2d 695, 699 (N.D.1995). Consequently, the court found it necessary to clarify the judgment and to provide a more structured visitation schedule which, in the court's view, fulfilled the liberal visitation requirement.

[¶ 7] Jeffrey asserts the trial court erred in "modifying" the visitation provisions without first finding there was substantial change of circumstances warranting a modification. A party moving to modify visitation bears the burden of establishing that a significant change of circumstances has occurred since the prior visitation order and that it is in the best interests of the child to modify the order. Reinecke, 533 N.W.2d at 698.

[¶ 8] In this case, the trial court made a specific finding that there was not a change of circumstances, and the court clarified, rather than modified, the decree. Under the circumstances, we conclude the trial court's finding that there was not a change in circumstances is clearly erroneous. N.D.R.Civ.P. 52(a). The original decree provided for liberal visitation with the noncustodial parent "as agreed to between the parties." In view of that language, we conclude, as a matter of law, that when the parties ultimately became unable to agree as to what constituted liberal visitation there was a substantial change of circumstances for purposes of modifying the visitation provisions. Nevertheless, the trial court's erroneous finding did not result in reversible error, because the court reached the same result (i.e. a structured visitation schedule) in clarifying the visitation provisions as it would had the court found a substantial change of circumstances upon which to modify and structure the decree.

[¶ 9] When the parties cannot cooperate in arranging visitation, we have recommended that the court enter a structured visitation schedule. Reinecke, 533 N.W.2d at 699. We conclude the court correctly construed the visitation order for liberal visitation "as agreed to between the parties" as one which was fluid, not static, allowing adjustments in visitation to accommodate the circumstances. The structured schedule clarifies the court's intentions of providing liberal visitation for each party when the other has custody of the child. We conclude the trial court did not err in setting a structured visitation schedule for the parties.

III

[¶ 10] Jeffrey asserts the trial court erred in imputing income to him for purposes of computing his child support obligation. Child support determinations involve questions of law which are subject to the de novo standard of review, findings of fact which are subject to the...